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PETITIONER: SMT. CHAND DHAWAN

       Vs.

RESPONDENT: JAWAHAR LAL AND ORS.

DATE OF JUDGMENT28/04/1992

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) PANDIAN, S.R. (J)

CITATION:  1992 AIR 1379            1992 SCR  (2) 837  1992 SCC  (3) 317        JT 1992 (3)   618  1992 SCALE  (1)996

ACT:      Criminal Law      Code of Criminal Procedure, 1973:      Section 482-Inherent jurisdiction-Exercise  of-Criminal proceedings-When   could  be  quashed-Whether   High   Court justified  in quashing the complaint when allegations  prima facie constitute an offence.

HEADNOTE:      The  appellant  was married to  the  first  respondent. After  sometime  the spouses started living  separately.   A spurt of litigation followed thereafter.  While  proceedings for  dissolution  of  the marriage, custody  of  the   minor children  and criminal prosecution were pending between  the parties,  the  appellant instituted a complaint  before  the Chief Judicial Magistrate,for bigamy alleging that the first respondent  had subsequently married the  second  respondent and  that  the parents of the Respondents No. 1  and  2,  in conspiracy  intentionally  abetted the  performance  of  the second  marriage  with  the full knowledge  that  the  first marriage  of  the first respondent with  the  appellant  was subsisting.  Respondents No. 1 and 2 and their parents  were arrayed  as accused.  After recording the statement on  oath of  the complainant and two witnesses, the  magistrate  took cognizance of the complaint for offences under sections  494 and  109 I.P.C., and issued summons to the accused  persons. The accused appeared before court and were released on bail. Thereafter  on an application moved by the first  respondent under  Section  482  Cr.P.C., the  High  Court  quashed  the complaint  and the subsequent proceedings, holding  that  in view  of  the contradictions which went to the root  of  the case  including the jurisdiction of the trial court to  take cognizance  and proceed with the complaint in question,  the continuance of the proceedings on the basis of the complaint before the trial court would amount to abuse of the  process of the court.      In  the appeal, by special leave, before this Court  on behalf of the appellant-wife, it was contended that the High Court, in exercising the                                                        838 jurisdiction  under  section 482 Cr.P.C., had made  a  probe

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into the truthfulness of the allegations made and  proceeded to  analyse the evidence which could be produced in  support of  the allegations overlooking the  well-settled  principle laid down for guidance in this regard.      On behalf of the respondents it was contended that  the circumstances  of the case had necessarily to be taken  into account  to  determine whether the allegations made  by  the complainant  were  frivolous or vexatious  and  actuated  by oblique  motive and that in the facts and  circumstances  of the  instant case, where the factum of the alleged  marriage stood disproved by the contradictory statement made  earlier to  the complainant, the proceedings could not be  justified and the High Court had rightly quashed the same.      Allowing the appeal, partly, this  Court,      HELD:1.1.  The  High Court can  exercise  its  inherent jurisdiction of quashing a criminal proceeding only when the allegations  made  in  the complaint do  not  constitute  an offence  or  that  the exercise of the  power  is  necessary either  to prevent the abuse of the process of the court  or otherwise  to  secure the ends of  justice.   No  inflexible guidelines  or rigid formula can be set out and  it  depends upon  the facts and circumstances of each case wherein  such power  should  be exercised.  When the  allegations  in  the complaint prima facie constitute the offence against any  or all  of  the  respondents, in the absence  of  materials  on record to show that the continuance of the proceedings would be an abuse of the process of the court or would defeat  the ends  of justice, the High Court would not be  justified  in quashing the complaint.  [842 D-F]      1.2.  In  the  present case,  the  allegations  in  the complaint are specific and clear that during the subsistence of  an earlier valid marriage, respondent Nos. 1 and 2  have entered into a second marriage and have thereby committed an offence falling under section 494 I.P.C. The complainant had affirmed  the fact on oath.  The two witnesses  produced  by the  complainant before the magistrate have  supported  that case.   Based  on the statement on oath of  the  complainant read  along  with  the evidence of the  two  witnesses  thus recorded  and the materials available before the  magistrate to get himself satisfied that cognizance should be taken and process issued, the magistrate was satisfied that an offence had  been  disclosed and accordingly the  summons  had  been issued.  The High Court was persuaded                                                        839 to  take  the view that the continuance of  the  proceedings would  be an abuse of the process of the court only  on  the basis   of   the  additional  materials  produced   by   the respondents.   The  materials thus produced  have  not  been admitted  or  accepted  by  the  appellant.   The  truth  or otherwise  of the allegations in the complaint is  a  matter for  proof.  When the materials relied on by the  respondent require to be proved, no inference can be drawn on the basis of those materials to conclude that the complaint is  false. The High Court was not justified in assuming that the  first information    report    had    been    lodged    by the complainant/appellant  solely because she had not filed  any reply before the High Court denying the fact.  No sufficient opportunity  was  given  to the appellant  to  do  so.   The affidavits  of  one  of the persons who is  stated  to  have performed  the ceremonies would also be of no assistance  in drawing any inference  either way.  [842 G-H, 843 A-C]      1.3.  The High Court has, therefore, clearly  erred  in reaching the conclusion that the proceedings were liable  to be quashed.      1.4. The issue of process to Respondents No. 1 and 2 is

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proper  and the proceedings have to continue  against  them. But  there is no justification to continue  the  proceedings against   Respondents   No.  3  to  7  as  they   had   been unnecessarily  and vexatiously roped in and the  allegations against them are vague and unsupported by any material.      State  of Haryana and Ors. v. Ch. Bhajan Lal and  Ors., [1990]  SCR  Supp. (3) 259 and State of Bihar v.  Murad  Ali Khan, AIR 1989 SC 1, referred to.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 269 of 1992.      From  the  Judgment and Order dated  18.3.1991  of  the Punjab  and Haryana High Court in Crl. Misc. No.  5841-M  of 1990.      Gobinda Mukhoty and Mridula Ray for the Appellant.      G.L. Sanghi and P.P. Tripathi for the Respondents.      The Judgment of the Court was delivered by      FATHIMA BEEVI, J. Leave granted.                                                        840      The  appellant, Smt. Chand Dhawan, was married  to  the first  respondent, Jawahar Lal, on 19.9.1972.   After  three children  were born, the spouses started to  live  separate. The  children  are  left  with  the  father.   A  spurt   of litigation    followed    thereafter.     Proceedings    for dissolution  of the marriage, custody of the minor  children and  criminal prosecution are pending between  the  parties. While  so, the appellant instituted a complaint  before  the Chief  Judicial  Magistrate, Amritsar, for  bigamy  alleging that  Jawahar  Lal  married  Shashi  Arora  at  Amritsar  on 8.2.1989;  that the parents of Jawahar Lal and Shashi  Arora in  conspiracy intentionally abetted the performance of  the second  marriage  with  the full knowledge  that  the  first marriage  of  Jawahar  Lal with the  appellant,  Smt.  Chand Dhawan,  was  subsisting.  Jawahar Lal,  Shashi  Arora,  the parents of Jawahar Lal and the parents of Shashi Arora  were arrayed  as accused.  After recording the statement on  oath of the complainant and two witnesses, the learned magistrate took  cognizance  of  the   complaint  for  offences   under sections  494  and 109, I.P.C., and issued  summons  to  the accused persons.  The accused appeared before court and were released  on  bail.   The  first  respondent,  Jawahar  Lal, thereafter moved the High Court of Punjab and Haryana  under section 482, Cr.P.C., for quashing the complaint.  The  High Court by the impugned judgment/order dated 18.3.1991 quashed the complaint and the subsequent proceedings.  The appellant being  aggrieved  has  filed the  appeal  on  special  leave granted.      The  High Court in allowing the miscellaneous  petition filed  by the first respondent has said that in view of  the contradictions which go to the root of the case including the jurisdiction  of  the  trial court to  take  cognizance  and proceed with the impugned complaint, the continuance of  the proceedings  on the basis of the impugned  complaint  before the  trial court at Amritsar would certainly amount  to  the abuse of the process of the court.      The  two  grounds for arriving at this  conclusion  are that  (1)  the appellant had lodged  the  first  information report before the police on 30.3.1989 and under section  494 of the Indian Penal Code alleging that the marriage  between the  respondents  Nos.  1 and 2 was  solemnised  at  Greater Kailash,  New Delhi in February 1989 quite contrary  to  the allegations  under  the  present  complaint  and  (2)  Vijay

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Bharti,  one  of the persons, stated to have  performed  the second marriage has filed an affidavit dated 7.5.1990 before the court stating that he did not perform any such marriage.                                                        841 The  complainant  had emphatically stated  before  the  High Court  that the documents relied on by the  respondents  are not  genuine, no such first information had been  lodged  by the  appellant before the Police Station,  NOIDA,  Ghaziabad and  that  Vijay  Bharti has also not  sworn  the  affidavit produced  in court.  The objection was rejected by the  High Court  stating  that  the specific  averments  made  in  the petition  have not been contradicted by the  complainant  by filing the reply.      The learned counsel for the appellant contended  before us that the High Court in exercising the jurisdiction  under section 482, Cr.P.C., has made a probe into the truthfulness of  the  allegations  made  and  proceeded  to  analyse  the evidence   which  could  be  produced  in  support  of   the allegations and in so doing had overlooked the  well-settled principle  laid  down  for  guidance  while  exercising  the inherent  power.   According to the appellant,  the  learned magistrate  has taken congnizane of the complainant  on  the basis  of  the  allegations made which  clearly  reveal  the commission  of  an offence.  The materials produced  by  the complainant  to satisfy the magistrate at the initial  stage has  been  duly considered before issuing  process  and  the question whether the case would result in conviction or  not is  not a matter for consideration at that stage  and  there was, therefore, no justification for the High Court to quash the proceedings relying on the materials which have not been legally  proved.  It is vehementaly contended that the  copy of  the first information report filed before the  court  is not  genuine,  that the witness Vijay Bharti  had  filed  an affidavit  before this Court denying the genuineness of  the affidavit  stated to have been filed before the  High  Court and in this state of the facts it was pre-nature to conclude that  it  would be an abuse of the process of the  court  to proceed  with the complaint.  The learned counsel  has  also relied on the decision of this Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., JT [1990] 4 SC 650.      The  learned counsel for the respondent  in  supporting the impugned order of the High Court has maintained that the circumstances of the case have necessarily to be taken  into account  to  determine whether the allegations made  by  the complainant  are  frivolous  or vexatious  and  actuated  by oblique  motive and that in the facts and  circumstances  of the  case  where the factum of the alleged  marriage  stands disproved by the contridictory statement made earlier to the complainant, the proceedings could not be justified and  the High Court has rightly quashed the same.                                                        842      The  High Court, relying on the decision of this  Court in State of Bihar v. Murad Ali Khan, AIR 1989 SC 1,  pointed out that when the High Court is called upon to exercise  the jurisdiction  to  quash  a proceeding at the  stage  of  the magistrate  taking cognizance of an offence, the High  Court is  guided by the allegations whether those allegations  set out  in  the  complaint or the charge-sheet do  not  in  law constitute  or  spell  out any offence and  that  resort  to criminal  proceedings within the circumstances amount to  an abuse  of the process of the court or not.  The High  Court, has however, in approaching the question misdirected  itself in  analysing the truth or otherwise of the  allegations  on the  basis  of the materials which could not  be  relied  on without legal proof.  It is not disputed that the  complaint

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filed  by  the  appellant does  disclose  an  offence  under section 494, I.P.C.  The allegations made by the complainant in law constitute and spell out an offence. If so, the  only question  that could have been considered at this  stage  is whether the continuance of the proceedings would be an abuse of  the  process of the court.  This court  has  in  various decisions examined the scope of the power under section 482, Cr.P.C.,  and  has reiterated the principle  that  the  High Court  can exercise its inherent jurisdiction of quashing  a criminal  proceedings only when the allegations made in  the complaint do not constitute an offence or that the  exercise of  the power is necessary either to prevent the   abuse  of the  process of the court or otherwise to secure to ends  of justice.  No  inflexible quidelines or rigid foumula can  be set  out and it depends upon the facts and circumstances  of each case wherein such power should be exercised.  When  the allegations  in  the complaint prima  facie  constitute  the offence against any or all of the respondents in the absence of materials on  record to show that the continuance of  the proceedings would be an abuse of the process of the court or would  defeat the ends of justice, the High Court would  not be justified in quashing the complaint.      In   the  present  case,  we  have  stated   that   the allegations  in  the complaint are specific and  clear  that during  the  subsistence of an earlier  valid  marriage  the respondents Nos. 1 and 2 have entered into a second marriage and have thereby committed an offence falling under  section 494,  I.P.C. The complainant had affirmed the fact on  oath. The  two  witnesses produced by the complainant  before  the magistrate have supported that case.  Based on the statement on  oath of the complainant read along with the evidence  of the two witnesses thus recorded and the materials  available before   the  magistrate  to  get  himself  satisfied   that cognizance should be                                                        843 taken and process issued, the magistrate was satisfied  that an  offence had been disclosed and accordingly  the  summons had  been issued.  The High Court was persuaded to take  the view  that  the continuance of the proceedings would  be  an abuse  of the process of the court only on the basis of  the additional  materials  produced  by  the  respondents.   The materials  thus produced have not been admitted or  accepted by the appellant.  The truth or otherwise of the allegations in the complaint is a matter for proof.  When the  materials relied  on  by  the  respondent require  to  be  proved,  no inference  can be drawn on the basis of those  materials  to conclude  that the complaint is false.  The High  Court  was not justified in assuming that the first information  report had been lodged by the complainant/appellant solely  because she  had not filed any reply before the High  Court  denying the   fact.   It  does  not  appear  that   the   sufficient opportunity  was  given  to the appellant  to  do  so.   The affidavits  of  one of the persons who is  stated  to   have performed  the ceremonies would also be of no assistance  in drawing any inference either way.      We are, therefore, of the view that the High Court  has clearly   erred   in  reaching  the  conclusion   that   the proceedings  are liable to be quashed.  In the light of  the allegations made in the complaint and the materials produced in support of those allegations by the appellant before  the magistrate, the issue of the process to the respondents Nos. 1  and  2  who are alleged to  have  solemnised  the  second marriage during the subsistence of an earlier valid marriage of the appellant is proper and when process has been issued, the  proceedings  have to continue in  accordance  with  law

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against  these  respondents Nos. 1 and 2.  so far  as  other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in.  The allegations  in the complaint so far as these respondents are concerned  are vague.  It cannot be assumed that they had by their presence or  otherwise  facilitated  the solemnisation  of  a  second marriage  with the knowledge that the earlier  marriage  was subsisting.   The explanation of the first  respondent  that the second respondent has been functioning as a governess to look after his children in the absence of the mother who had left  them implies that respondents Nos. 1 and 2 are  living together.  In this background, the allegations made  against respondents  3  to  7 imputing them  with  guilty  knowledge unsupported   by  other  material  would  not  justify   the continuance of the proceedings against those respondents.      In   our  view,  the  complaint  before   the   learned magistrate is to be                                                        844 proceeded with against respondents Nos. 1 and 2 only.      Accordingly,  we   allow the appeal to  the  extent  of setting  aside the impugned judgment so far  as  respondents Nos. 1 and 2 are concerned and restoring the complaint to be proceeded  with as against these two respondents and  to  be disposed of in accordance with law. N.P.V.                                Appeal partly  allowed.                                                        845