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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