IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 12.10.2007. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.Nos.26368 and 26381 of 2007 1. D.Grahalakshmi 2. V.S.Dhanasekaran 3. Sivagamasundari 4. D.Nagarajan 5. D.Ponkumaran 6. Abirami Ponkumaran Petitioners in Crl.O.P.No.26368/2007 1. Dr.N.Rangabashyam 2. Mrs.Chitra Rangabashyam Petitioners in Crl.O.P.No.26381/2007 vs. 1. State by Inspector of Police, W-25, All Women Police Station, T.Nagar, Chennai 1st Respondent in Crl.O.P.No.26368/2007 & Respondent in Crl.O.P.No.26381/2007 2. T.Prasanth 2nd respondent in Crl.O.P.No.26368/2007 Criminal Original Petitions filed under section 482 Cr.P.C. to call for the records pertaining to the case in C.C.No.5967 of 2007 which is pending trial on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai and quash the same. For petitioners in Crl.O.P.No.26368/2007 : Mr.M.Ravindran, Senior Counsel for Mr.E.R.K.Moorthy For petitioners in Crl.O.P.No.26381/2007 : Mr.R.Amizhdu https://hcservices.ecourts.gov.in/hcservices/ For R1 (State) : Mr.J.C.Durairaj, Govt. Advocate (Crl.Side) For R2 in Crl.O.P.No.26381/2007 : Mr.S.Shanmugasundaram,Sr.Advocate for Mr.P.Anandan & Bhaskaran COMMON ORDER Accused 1 to 6 in C.C.No.5967 of 2007 have preferred Criminal Original Petition No.26368 of 2007 and Accused 7 and 8 in the very same Calendar Case have filed Criminal Original Petition No.26381 of 2007 seeking quashment of the aforesaid Criminal Proceedings pending before the learned XVII Metropolitan Magistrate, Saidapet, Chennai invoking the provision under section 482 of the Code of Criminal Procedure. 2. The second respondent, who is the husband of the first petitioner in Crl.O.P.No.26368 of 2007, has lodged a complaint before the learned XVII Metropolitan Magistrate Saidapet, Chennai seeking to prosecute the petitioners herein for offences punishable under sections 417, 418, 494, 496, 385, 387 read with section 120B and section 506(ii) IPC. 3. In the complaint submitted by the second respondent to the learned XVII Metropolitan Magistrate, Saidapet, Chennai, it has been alleged that his wife, the first petitioner had got married one Narayanan Venu prasath as early as on 30.11.1998 and registered the same on 30.12.1998 long prior to the marriage of the second respondent with the first petitioner on 1.9.2005. All the petitioners in both the criminal original petitions completely suppressed the earlier marriage and arranged the marriage of the first petitioner with the second respondent on 1.9.2005 and cheated the second respondent. Petitioners 4 to 6 in Crl.O.P.No.26368 of 2007 demanded huge amount from the second respondent during the course of hearing of the criminal case, threatening with acid attack. With the aforesaid allegations, the second respondent has prayed for prosecution of all the petitioners herein. 4. The learned XVII Metropolitan Magistrate, Saidapet, Chennai referred the aforesaid complaint under section 156(3) of the Code of Criminal Procedure to the first respondent Inspector of Police, W25, All Women Police Station, T.Nagar, Chennai, who registered the complaint in Crime No.16/2007 under sections 417, 495, 496, 385 and 506(ii) IPC and took up the case for https://hcservices.ecourts.gov.in/hcservices/ investigation and filed final report before the said Court charging the first petitioner in Crl.O.P.No.26368 of 2007 for offences punishable under section 417 I.P.C. (cheating) and section 495 I.P.C. (solemnization of marriage concealing the first marriage), petitioners 2 and 3 in Crl.O.P.No.26368 of 2007 and both the petitioners in Crl.O.P.No.26381 of 2007 for offence punishable under section 496 IPC (conducting marriage ceremony fraudulently) and petitioners 4 to 6 in Crl.O.P.No.26368 of 2007 for offences punishable under sections 496 (conducting marriage ceremony fraudulently), 385 (putting in fear of injury for committing extortion) and 506(ii) (threat to cause death or grievous hurt) of IPC. 5. The petitioners in Crl.O.P.No.26368 of 2007 have contended in the petition seeking quashment that there is no prima facie case made out as against the petitioners for the alleged offences punishable under sections 495 and 496 IPC. There was no solemnization of marriage on 30.11.1998 at V.M.Kalyana Mandapam, Alwarpet, Chennai between the first respondent and Narayanan Venu Prasath as alleged. The registration of the marriage had been allegedly done on 30.12.1998 by producing a fake marriage invitation by Narayanan Venu Prasath. The alleged first marriage had not been performed as per the provisions of the Hindu Marriage Act, 25 of 1955. The registration of the marriage on 30.12.1998 is of no avail and therefore, the petitioners cannot be allowed to face the ordeal of Trial for offences punishable under sections 495 and 496 IPC. Immediately after the alleged threat of extortion, no complaint was laid by the second respondent. The second respondent has chosen to falsely implicate all the family members of the first petitioner. No offence of cheating can be brought against the first petitioner since there is no legally valid first marriage. The first petitioner has no authority to investigate the offences punishable under sections 495 and 496 IPC since cognizance of such offences can be taken by the learned Judicial Magistrate concerned only based on the private complaint laid by the aggrieved party. Matrimonial proceedings are pending between the parties wherein the alleged marriage with Narayanan Venu Prasath is going to be determined. Unless it is proved before the Matrimonial Court, the offences punishable under sections 495 and 496 IPC would not be attracted. The criminal proceedings initiated as against the petitioners are sheer abuse of process of court. The petitioners in Crl.O.P.No.26381 of 2007 have contended that they just participated in the marriage of the first petitioner with the second respondent. They were not at all aware of the alleged first marriage between the first petitioner and Narayanan Venu Prasath. No prima facie case has been made out https://hcservices.ecourts.gov.in/hcservices/ as against them for offence punishable under section 496 IPC. Therefore, the petitioners in both the criminal original petitions would submit that the entire criminal proceedings in C.C.No.5967 of 2007 may be quashed. 6. In the counter filed by the first respondent, it has been stated that the offences mentioned in the charge sheet have been clearly made out. No valid ground is made out by any of the petitioners to quash the charge sheet. 7. The second respondent, who is the husband of the first petitioner in Crl.O.P.No.26368, in his counter, would reiterate the tenor of his complaint and has submitted that the charge sheet has been laid by the first respondent police having satisfied prima facie that the offences mentioned in the charge sheet have been made out. Therefore, quashing of the criminal proceedings does not arise for consideration. 8. The points that arise for consideration are 1) Whether there is prima facie case as against A1 for offences punishable under sections 417 and 495 I.P.C., A2 to A8 for offence punishable under section 496 IPC and A4 to A6 for offences punishable under sections 385 and 506(ii) IPC. 2) Whether taking cognizance of the offences punishable under sections 495 and 496 IPC based on the police report is legally sustainable. 3. Whether there is misjoinder of offences. 4. Whether the criminal proceedings in C.C.No.5967 of 2007 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai are liable to be quashed." 9. Point No.1:- Learned Senior Counsel appearing for the petitioners in Crl.O.P.No.26368 of 2007 would contend that the second respondent has initiated the instant criminal proceedings just to counter blast the complaint dated 7.5.2007 given by the first petitioner seeking justice for matrimonial offences committed by her husband and in- laws. The second respondent has come out with a totally artificial version as though a demand for five crore rupees was made and thereafter, step by step, the demand was hiked to fifty crore rupees just to attract the criminal offence. An imaginary allegation is thrown on 4th and 5th accused as though they threatened to throw acid on the second respondent. The materials collected by the first respondent https://hcservices.ecourts.gov.in/hcservices/ would disclose that there was no valid marriage at all. Mere registration of the marriage in the absence of solemnization under Hindu Marriage Act will not attract either offence under section 495 IPC or under section 496 IPC. No complaint was lodged immediately after the alleged attempt to put in fear of injury in order to commit the offence of extortion. The materials collected, as such, does not prima face show that an offence was committed by the petitioners. The learned counsel appearing for the petitioners in Crl.O.P.No.26368 of 2007 would submit that the petitioners have been slapped with the allegation of the commission of offence punishable under section 496 IPC as they being the relatives of the wife of the second respondent failed to evince interest in conciliating the matrimonial dispute between the husband and wife. The second respondent has simply abused the process of law alleging that the petitioners in Crl.O.P.No.26381 of 2007 failed to disclose the factum of earlier marriage solemnized under their blessings. 10. Learned Government Advocate (Criminal Side) would submit that the investigation done by the respondent police would disclose prima facie that the petitioners in both the petitions have committed various offences charged as against them. The learned XVII Metropolitan Magistrate Saidapet, Chennai has rightly taken the case on file. The learned counsel appearing for the second respondent/complainant would submit that only in rare cases where the allegation does not constitute any offence and no supporting materials also have been collected by the investigating agency, the question of quashing the criminal proceedings would arise. The first husband has admitted the fact that he got married the first accused. The fact remains that they had not disclosed this fact to the complainant. The court is not supposed to go into the reliability or the genuineness of the allegations found prima facie as against the petitioners. Presumption arises in the face of the clinching material in the shape of marriage registration certificate available to establish prima facie that there was a marriage. Therefore, it is not a fit case to exercise the inherent jurisdiction of this court under section 482 of the code of Criminal Procedure. 11. It has been held in STATE OF MAHARASHTRA v. ISHWAR PIRAJI KALPATRI ((1996) 1 SCC 542) that the power of quashing the criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The court exercising its power under section 482 of the Code of Criminal Procedure is not justified in embarking upon a roving enquiry to find out the reliability or genuineness of the https://hcservices.ecourts.gov.in/hcservices/ allegation made in the first information report or in the complaint. The courts should be posted of the stark reality that the extraordinary or inherent power conferred under section 482 of the Code of Criminal Procedure does not clothe an arbitrary jurisdiction on the court to act according to its whims or caprice. 12. The Honourable Supreme Court in MADHAVRAO J. SCINDIA v. SAMBHAJIRAO c. ANGRE ((1988) 1 SCC 696) observes as follows: "The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of case also quash the proceeding even though it may be at a preliminary stage." 13. The court will have to see whether a criminal prosecution has been slapped on the arch rival with an oblique purpose and whether it would be fruitful to allow a criminal prosecution to continue but, if the uncontroverted allegations prima face establish the offences alleged, then the court will have to ignore the objections, if any, raised as against the criminal prosecution and permit the Trial Court to go ahead with the process of trial. 14. It has been held in MUNICIPAL CORPORATION OF DELHI v. RAM KISHAN ROHTAGI ((1983) 1 SCC 1) as follows:- "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the https://hcservices.ecourts.gov.in/hcservices/ same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting any thing, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code." 15. Even at the stage where the complaint alone has been laid as against the accused, it can be quashed if on the face of the complaint or the documents annexed therewith no offence was made out. But, in this case, the cognizance of the offence has been taken after the investigation was embarked upon by the investigating agency on reference under section 156(3) of the Code of Criminal Procedure. But, at any rate, the court will have to find whether prima facie materials are available to charge the petitioners for the various offences slapped against them. 16. The learned XVII Metropolitan Magistrate, Saidapet, Chennai has taken cognizance of the case launched by the second respondent after the final report was filed by the first respondent as against A1 for offences punishable under sections 417 and 495 IPC, A2 to A8 for offence punishable under section 496 IPC and A4 to A6 for offences punishable under sections 385 and 506(ii) IPC. 17. The complaint preferred by the second respondent would read that the first accused Grahalakshmi having got married Narayanan Venu Prasath on 30.11.1998, registered the said marriage on 30.12.1998 and cheated the complainant suppressing the first marriage she solemnized with Narayanan Venu Prasath. The allegation as against A2 to A8 is that they having participated in the earlier marriage, chose to deliberately suppress the entire facts pertaining to the first marriage of the first accused with Narayanan Venu Prasath. The further allegation found in the complaint as against A4 to A6 is that many an occasion, during the proceedings of the matrimonial case before the Family Court, they, having demanded huge amount for settling the matrimonial dispute, threatened him with acid attack. 18. Let us now refer to the statements of the important witnesses recorded by the first respondent police. The complainant cited as LW1 has completely reiterated his allegation in the complaint lodged by him. As against the role of the petitioners in Crl.O.P.No.26381 of 2007, the complainant has stated before the first respondent police that his father https://hcservices.ecourts.gov.in/hcservices/ requested Dr.Rangabashyam and his wife to intervene in the matrimonial dispute between the second respondent and his wife, but, he had given an evasive reply that they had stopped associating with the family of the in- laws of the second respondent. 19. Narayanan Venu Prasath was examined as LW4 by the first respondent. It is his version that the first accused and himself became thick friends and thereafter they decided to get married as the parents of the first accused were scouting for alliance. They also apprehended that both the family members might not give consent and therefore, they decided to register the marriage. Though there was no marriage on 30.11.1998 at V.M. Marriage Hall, he prepared a marriage invitation through his friend Sudhir for the purpose of producing the same before the Registrar for registration of the marriage. It is his emphatic version in his statement recorded under section 161 of the Code of Criminal Procedure that none of their family members was aware of the registered marriage. At one point of time after such registration of the marriage, the family members of the first accused were approached by Narayanan Venu Prasath, but, the mother of the first accused got angry. Thereafter, the relationship of Narayanan Venu Prasath with the first accused came to an end. Narayanan Venu Prasath has stated before the investigating officer that he got married Grahalakshmi, having been afraid of the family members, but, in fact, he did not live with her as husband and wife. In the further statement also, Narayanan Venu Prasath has come out with a version that, as he got married Grahalakshmi through registered marriage on 30.12.1998, in the aftermath of their love affair, he got a sim card with a telephone number for Grahalakshmi with her date of birth. He would further state that he provided credit facility for Grahalakshmi in his credit card as Grahalakshmi was his wife. The amount payable to the bank towards the credit card facility extended to both of them was paid only by him. At the fag end of 2003, he closed the said credit card facility, he reveals further. 20. P.Rajesh, LW5, who accompanied Narayanan Venu Prasath, has stated before the Inspector of Police during the course of investigation that Venu Prasath did inform him that he got married the first accused Grahalakshmi in the aftermath of his life affair with her. Thereafter, he went to the Registrar's Office as requested by him for the purpose of registration of the marriage. E.Sankar, LW6, who also allegedly participated in the registration of the marriage between Narayanan Venu Prasath and the first accused, would also say that Venu Prasath informed him that he https://hcservices.ecourts.gov.in/hcservices/ married the first accused in a marriage hall at Alwarpet and therefore, he co-operated for the registration of the marriage. D.Chandrasekar, LW7, who also played some role in the registration of the marriage would state that Venu Prasath informed him that his marriage with the first accused Grahalakshmi needed registration for the purpose of securing passport. He would further reveal that Venu Prasath informed him that he got married Grahalakshmi following the love affair with her. It is his version that he found Venu Prasath and his wife Grahalakshmi at the Registrar's office. Sudhir Kumar, LW8 comes out with a statement that he located a broker in the office of the Registrar to register the marriage of Narayanan Venu Prasath with Grahalakshmi. 21. Mrs.Catherinal, LW9, who is working in the Registrar's office, would state that Venu Prasath informed her at the time of registration of the marriage that he got married Grahalakshmi on 30.11.1998 at V.M.Kalyana Mandapam at Alwarpet. He also annexed a copy of the marriage invitation along with the application seeking registration of the marriage. The witnesses, who accompanied Narayanan Venu Prasath informed her that they were witnesses to the marriage which took place at the marriage hall at Alwarpet. P.R.Venkataraj, LW12 who was the proprietor of the Marriage Hall at Alwarpet, has stated that he had not maintained any book or register during the relevant period to show whether the marriage hall was rented out for the purpose of conducting any marriage on 30.11.1998. K.Murali Iyer, LW13 has stated before the Inspector of Police during the course of investigation that he being a prohit had not solemnized any marriage between Narayanan Venu Prasath and Grahalakshmi at the marriage hall at Alwarpet on 30.11.1998. 22. D.Kanniappan, LW16, who is the Manager of the complainant, would state that on 3.1.2007, when the complainant was entering into the Family Court, Chennai through the back door, Pon Kumar, A5 and his wife Abirami Pon Kumar, A6 threatened him with slapping criminal prosecution under section 498A of the Code of Criminal Procedure if the complainant do not oblige with consent for divorce. On 12.2.2007, when he was entering into the Family Court through the back door at about 10.00 am, Nagarajan, A4 and Pon Kumar, A5 demanded eight crore rupees to settle the matrimonial dispute. Thereafter, on 15.3.2007, they again demanded a sum of fifty crore rupees from the complainant failing which they threatened to take criminal actin for offence punishable under section 498A IPC as against the complainant. Krishna Mohan, LW17 who is the Uncle of the complainant would also https://hcservices.ecourts.gov.in/hcservices/ speak to the version spoken to by LW16. 23. The aforesaid statements recorded by the first respondent police in the aftermath of the reference of the complaint lodged by the second respondent invoking the provision under section 156 (3) of the Code of Criminal Procedure would disclose that Narayanan Venu Prasath has exhibited oscillation as to the factum of the first marriage. At one stage, he has stated that except the registration of the marriage, there was virtually no performance of the marriage. In the same breath, he would state that he married Grahalakshmi following the love affair he had with her. The marriage registration certificate and the marriage invitation have been seized by the first respondent police. The Proprietor of the marriage hall was not in a position to assertively say whether there was any such marriage on 30.11.1998 between Narayanan Venu Prasath and Grahalakshmi. The Prohit banks largely on his diary to say that he had not performed any such marriage at the marriage hall in Alwarpet. It is the admitted case that Narayanan Venu Prasath had already moved the Family Court seeking divorce from Grahalakshmi. The petitioners themselves have specifically referred to such a petition filed by Narayanan Venu Prasath before the Family Court in their petition seeking quashment. The aforesaid facts and circumstances would indicate that the complainant had not knocked at the doors of the learned XVII Metropolitan Magistrate Saidapet, Chennai without any material to his allegation. The court finds that there is some prima facie material to show that the marriage between Narayanan Venu Prasath and the first accused was registered on 30.12.1998 before the Registrar. 24. In this context, it is quite relevant to refer to the judgment of the Bench of this Court in SHAJI v. GOPINATH (AIR 1995 Madras 161) wherein it has been held that solemnization of the marriage as per section 7(2)(1) of the Hindu Marriage Act before the registration of the same under section 8 of the said Act is quite necessary to establish the marriage between the contending parties. When there is no marriage as contemplated under the provisions of the Hindu marriage Act, there could not have been any valid registration of marriage between the plaintiff and the defendant. 25. The sum and substance of the above ratio is that solemnization of marriage between the parties will have to be established independent of the registration of the same. The mere registration of the marriage cannot validate or sanctify lack of solemnization of marriage. https://hcservices.ecourts.gov.in/hcservices/ 26. This court in S.C.SHANTHI v. P.VENKATESH (AIR 1996 Madras 150) has held that marriage should have been solemnized in accordance with the provisions of the Hindu Marriage Act beforeever the marriage was registered. In the absence of any evidence to show that there was valid marriage, mere registration of the marriage will not testify to the solemnization of the marriage. A question arose before the Division Bench of the Calcutta High Court in MOUSUMI CHAKRABORTY v. SUBRATA GUHA ROY (II (1991) DMC 74 (DB)), whether the registration of marriage is a proof of solemnization of the marriage. The Division Bench has answered in the negative saying assertively that the validity of the marriage does not hinge on registration or omission to register the marriage. The Division Bench of the Gujarat High Court in MUKTA JESING v. VALLABHADAS (1994 CRL.L.J. 121) has observed that mere proof of registration of marriage at the caste organisation on payment of fee cannot be a proof of solemnization of marriage. The word "solemnize" means "to celebrate the marriage with proper ceremonies and in due form". Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be solemnized. But, of course, in the State of Tamil Nadu, by virtue of the Madras Amendment Act, 21/1967, section 7A was introduced in the Hindu Marriage Act. By virtue thereof, "Suya Mariyadhai" and "Seer Thirutha" Marriages in the presence of relatives, friends or other persons each declaring to take the other to be his spouse and by garlanding each other