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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.457 OF 2008

RAVINDER KAUR .......APPELLANT

VERSUS

ANIL KUMAR .......RESPONDENT

J U D G M E N T

J.S.KHEHAR, J.

The appellant (Ravinder Kaur) and the respondent (Anil

Kumar) got married on 14.08.1991. Soon thereafter, the respondent

preferred a petition seeking divorce from the appellant before the

Additional District Judge, Ropar. Having received summons in the

above-mentioned case, the appellant entered appearance before the

Additional District Judge, Ropar, on 08.10.1992. On the following

day, i.e., on 09.10.1992, the respondent withdrew the petition

filed by him under Section 13 of the Hindu Marriage Act, 1955.

The respondent filed a second divorce petition on

30.04.1993, under Section 13 of the Hindu Marriage Act, 1955, on

the same factual premise and grounds (as the earlier petition),

before the Additional District Judge, Chandigarh. Proceedings were

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conducted in the second divorce petition, in the absence of the

appellant, and an ex-parte decree of divorce was granted to the

respondent, on 08.01.1994. It was the case of the appellant before

this Court, that the respondent did not inform her, that the

matrimonial ties between the parties had come to an end, by the

decree of divorce dated 08.01.1994. And under the impression, that

the marriage was subsisting, he continued his conjugal relationship

with the appellant, as her husband, by deception.

It was also the case of the appellant, that on 23.06.1994

the respondent married Sunita Rani. It was, thereupon, that the

appellant became aware (on 23.06.1994 i.e., on the occasion of his

marriage with Sunita Rani) about the fact, that the respondent had

been granted an ex-parte decree of divorce on 08.01.1994 (by the

Additional District Judge, Chandigarh). Within six days, of her

coming to know, about the above ex-parte decree of divorce, the

appellant preferred an application, for setting aside the said ex-

parte decree, on 29.06.1994. The same was allowed by the

Additional District Judge, Chandigarh, on 19.02.1996. In sum and

substance, therefore, the matrimonial ties between the appellant

and the respondent came to be restored, as if the marital

relationship had never ceased.

Based on the fact, that the respondent had continued the

sexual relationship with the appellant, for the period from

08.01.1994 (when the ex-parte decree of divorce was passed) till he

married Sunita Rani on 23.06.1994, the appellant preferred a

complaint before the Judicial Magistrate 1

st

Class, Kharar, under

Section 376 of the Indian Penal Code. It is not a matter of

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dispute, that the respondent was discharged from the above

proceedings. In fact, no trial came to be conducted in furtherance

of the above complaint made by the appellant. The above order of

discharge, was assailed by the appellant, before the High Court of

Punjab and Haryana, at Chandigarh (hereinafter referred to as `the

High Court'). The High Court affirmed the order of discharge, on

10.07.1997. Dissatisfied with the order of discharge, as also, the

order passed by the High Court, the appellant approached this

Court. This Court declined to interfere with the above orders.

On the same factual premise, as has been noticed in the

foregoing paragraphs (wherein the appellant had filed a complaint

for initiation of proceedings under Section 376 of the Indian Penal

Code), the appellant filed a second complaint, this time accusing

the respondent of offences under Sections 493, 494, 495, 496, 420,

506 read with Section 120-B of the Indian Penal Code. The Judicial

Magistrate 1

st

Class, Kharar, did not entertain the aforementioned

complaint filed by the appellant, and dismissed the same vide an

order dated 27.11.2002. Dissatisfied with the aforesaid order, the

appellant preferred a revision petition, assailing the above order

dated 27.11.2002, before the Sessions Judge, Roopnanagr. The

aforesaid revision petition was dismissed on 04.09.2003. The order

dated 04.09.2003 was assailed by the appellant before the High

Court, through Criminal Misc.No.50496-M of 2003. The aforesaid

Criminal Miscellaneous Petition, was dismissed by the High Court on

10.01.2007. The order passed by the High Court on 10.01.2007 is a

subject matter of challenge through the instant appeal.

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During the course of hearing, learned counsel for the

appellant very fairly asserted, that the claim raised by the

appellant in the complaint, which is a subject matter of the

present consideration, can be pressed against the respondent, only

with reference to the accusations levelled by the appellant, under

Sections 493 and 494 of the Indian Penal Code. It was, therefore,

that the instant controversy will be examined by us, limited to the

allegations made by the appellant, under Sections 493 and 494 of

the Indian Penal Code only.

Learned counsel for the respondent, while opposing the

prayer made on behalf of the appellant vehemently contended, that

the present proceedings were not maintainable against the

respondent, in the light of Section 300 of the Criminal Procedure

Code. In this behalf, it was the submission of the learned counsel

for the respondent, that it was not open to the appellant to raise

a claim against the respondent, so as to subject the respondent to

a trial again, on the same facts as in the earlier complaint, even

for an offence, other than the one, with reference to which the

earlier compalint was filed (under Section 376 of the Indian Penal

Code). To examine the veracity of the contention raised by the

learned counsel for the respondent, Section 300 of the Code of

Criminal Procedure is being extracted hereunder:

“300. Person once convicted or acquitted not to

be tried for same offence.

(1) A person who has once been tried by a Court of

competent jurisdiction for an offence and convicted

or acquitted of such offence shall, while such

conviction or acquittal remains in force, not be

liable to be tried again for the same offence, nor

on the same facts for any other offence for which a

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different charge from the one made against him

might have been made under sub- section (1) of

section 221, or for which he might have been

convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence

may be afterwards tried, with the consent of the

State Government, for any distinct offence for

which a separate charge might have been made

against him at the former trial under sub- section

(1) of section 220.

(3) A person convicted of any offence constituted

by any act causing consequences which, together

with such act, constituted a different offence from

that of which he was convicted, may be afterwards

tried for such last-mentioned offence, if the

consequences had not happened, or were not known to

the Court to have happened, at the time when he was

convicted.

(4) A person acquitted or convicted of any offence

constituted by any acts may, notwithstanding such

acquittal or conviction, be subsequently charged

with, and tried for, any other offence constituted

by the same acts which he may have committed if the

Court by which he was first tried was not competent

to try the offence with which he is subsequently

charged.

(5) A person discharged under section 258 shall not

be tried again for the same offence except with the

consent of the Court by which he was discharged or

of any other Court to which the first- mentioned

Court is subordinate.

(6) Nothing in this section shall affect the

provisions of section 26 of the General Clauses

Act, 1897, (10 of 1897 ) or of section 188 of this

Code.

Explanation.- The dismissal of a complaint, or the

discharge of the accused, is not an acquittal for

the purposes of this section.”

Having perused Section 300, we are satisfied, that the

submission advanced at the hands of the learned counsel for the

respondent, namely, that Section 300 of the Criminal Procedure

Code, will be an embargo to obstruct the right of the appellant to

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file a second complaint against the respondent, is not justified.

Our above determination is based on the fact, that the respondent

had not been tried, in furtherance of the previous complaint made

by the appellant, under Section 376 of the Indian Penal Code. The

contention of the learned counsel for the appellant, that the

respondent had been discharged in furtherance of the complaint made

by the appellant, without any trial having been conducted against

him (the respondent), was not disputed. Based on the above factual

contention, learned counsel for the appellant had placed emphatic

reliance, on the explanation under Section 300 of the Criminal

Procedure Code. The explanation relied upon, clearly mandates that

the dismissal of a complaint, or the discharge of an accused, would

not be construed as an acquittal, for the purposes of this Section.

In this view of the matter, we are in agreement with the contention

advanced at the hands of the learned counsel for the appellant. We

are of the considered view, that proceedings in the second

complaint would not be barred, because no trial had been conducted

against the respondent, in furtherance of the first complaint.

Having so concluded, it emerges that it is open to the appellant,

to press the accusations levelled by her, through her second

complaint, referred to above.

It is, therefore, that we shall now examine the present

controversy, with reference to Sections 493 and 494 of the Indian

Penal Code, which admittedly survive. The contention of the

learned counsel for the respondent, with reference to Section 493

of the Indian Penal Code was, that the ingredients of the offence

under Section 493 were not made out, even if the factual position,

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as has been asserted by the appellant, is accepted. Section 493 of

the Indian Penal Code is being extracted hereunder:

“493. Cohabitation caused by a man deceitfully

inducing a belief of lawful marriage.—Every man

who by deceit causes any woman who is not lawfully

married to him to believe that she is lawfully

married to him and to cohabit or have sexual

intercourse with him in that belief, shall be

punished with imprisonment of either description

for a term which may extend to ten years, and

shall also be liable to fine.”

A perusal of the above-extracted provision reveals, that to satisfy

the ingredients thereof, the man concerned should have deceived

the woman, to believe the existence of matrimonial ties with her.

And based on the aforesaid belief, the man should have cohabited

with her. The question to be determined on the basis of the

factual position, as has been noticed hereinabove, is whether in

the facts and circumstances of this case, it is possible to accept

such deceit, at the hands of the respondent, even if it is accepted

for the sake of arguments, that cohabitation continued between the

parties between 08.01.1994 till 23.06.1994, i.e., from the date

when the respondent was granted an ex-parte decree of divorce (by

the Additional District Judge, Chandigarh), till the date when the

respondent married Sunita Rani. We are of the considered view, that

with the setting aside of the ex-parte decree of divorce dated

08.01.1994 (on 19.02.1996), it cannot be accepted, that there was

any break in the matrimonial relationship between the parties.

Even the complaint filed by the appellant under Section 376 of the

Indian Penal Code was not entertained (and the respondent was

discharged), because it came to be concluded, that the matrimonial

ties between the appellant and the respondent were restored, with

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the setting aside of the ex-parte decree of divorce, as if the

matrimonial relationship had never ceased. In sum and substance

therefore, consequent upon the passing of the order dated

19.02.1996 (whereby the Additional District Judge, Chandigarh, set

aside the ex-parte decree dated 08.01.1994), the matrimonial ties

between the appellant and the respondent, will be deemed to have

subsisted during the entire period under reference (08.01.1994 to

23.06.1994). In fact, the accusation of the appellant, on the

aforesaid premise, in the first complaint filed by the appellant

against the respondent (under Section 376 of the Indian Penal Code)

was not entertained, and the respondent was discharged, just

because of the above inference. For exactly the same reason, we

are satisfied that the charge against the respondent is not made

out, under Section 493 of the Indian Penal, because the respondent

could not have deceived the appellant of the existence of a “lawful

marriage”, when a lawful marriage indeed existed between the

parties, during the period under reference.

So far as the surviving provision, namely, Section 494 of

the Indian Penal Code is concerned, the same is compoundable.

During the course of hearing, on 08.04.2015, we enquired from the

learned counsel for the appellant, whether the appellant was

interested in compounding the cause, since we were made aware of

the fact, that the respondent in the meantime had fathered two

children, from Sunita Rani. This proposal was made by the Court on

an oral assertion made at the behest of the learned counsel

representing the respondent, that the appellant had also re-married

in the meantime, and that, she had also begotten one son out of her

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second marriage.

Having obtained instructions, learned counsel for the

appellant very fairly acknowledged, the second marriage of the

appellant. He also acknowledged, the factum of the appellant having

begotten a son, from her second marriage. In the changed

scenario, learned counsel for the appellant informed this Court,

that the appellant had instructed him, that a request may be made

to the Court, that the appellant would have no objection to the

compounding of the offence under Section 494 of the Indian Penal

Code, in terms of Section 320 of the Code of Criminal Procedure,

with the consent of this Court. The contention of the learned

counsel for the appellant however was, that the appellant should be

awarded reasonable cost, while compounding the offence under

Section 494 of the Indian Penal Code.

Having given our thoughtful consideration to the facts

and circumstances of this case, specially the factual position as

has emerged after the ex-parte decree of divorce dated 08.01.1994

(passed by the Additional District Judge, Chandigarh) was set aside

on 19.02.1996, we are of the view, that the best course for the

parties is to settle their dispute amicably. Section 320 of the

Criminal Procedure Code is an avenue available to the parties, for

such resolution. In view of the consent expressed by the appellant

to this Court through her counsel, we hereby direct the compounding

of complaint made by the appellant with reference to Section 494 of

the Indian Penal Code. We direct the respondent to pay a sum of

Rs.5 lakhs, as compensation to the appellant. The respondent shall

deposit the aforesaid amount in this Court within two months from

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today. It shall be open to the appellant to move an application to

the Registry of this Court, to withdraw the aforesaid amount.

The appeal is disposed of in the above terms.

..........................J.

(JAGDISH SINGH KHEHAR)

..........................J.

(S.A.BOBDE)

NEW DELHI;

APRIL 09, 2015.

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