IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) PRINCIPAL SEAT Criminal Revision No.1 of 2016 Advocates for the Petitioner: Mr. S. Borthakur Mr. P. K. Borah Mr. H. Nath Sri Khagen Chandra Nath S/O Late Bhabi Ram Nath R/O:- Village Goraimara, P.O. Dhekipara P.S:- Sipajhar District:- Darrang, Assam -Versus-... Petitioner 1. The State of Assam, represented by the Public Prosecutor, Assam. 2. Smti Meghali Rani Sharmah W/O- Khagen Chandra Nath R/O:- Goraimara, P.O. Dhekipara P.S:- Sipajhar District:- Darrang, Assam. Present Address:- Chenikuthi, K.K.B. Road P.O-Chenikuthi, P.S.- Chandmari, Guwahati, Pin:- 781003 Advocates for the Respondents: Mr. D. Borgohain.....Respondents
2 BEFORE THE HON BLE MRS JUSTICE RUMI KUMARI PHUKAN Date of hearing : 27-04-2016. Date of Judgment & Order : JUDGMENT AND ORDER (CAV) Heard Mr. S. Borthakur, learned counsel for the petitioner and Ms. D. Borgohain, learned counsel appearing for the respondent No 2. (2) The instant revision petition under Section 397/401 r/w Section 482 CrPC is preferred by the petitioner, who is an accused in C.R. Case 535/2014 pending before the Court of Judicial Magistrate First Class, Kamrup (M), Guwahati, that was filed by the respondent wife under Section 494/109 of IPC. (3) The facts necessary for disposal of the matter is that the present respondent being involved in a relationship with the petitioner for several years got married to him on 21.01.1987 and subsequently two daughters were born out of the marriage. Owing to marital dispute between the parties the respondents began to reside separately from the petitioner along with her daughters in the year 1995. Thereafter on 07.06.1995 the respondent wife filed a complaint case before the learned CJM, Darrang, Mangaldai,
3 against the petitioner alleging inter-lia that the petitioner was untraceable since 21.05.1995 and then she came to know that the petitioner had married another women namely, Nirupama Devi and started to live as husband and wife and he has threaten to leave her. On the basis of same a complaint case was registered as C.R Case No.800/95 u/s 494/114/ 120(B)/34 IPC and the same was forwarded to the officer-in-charge concerned to register a case and for investigation. However after filing of the aforesaid case both the parties enter into a mutual agreement dated 28.07.1995 and it was filed before the learned CJM, which was registered as No.787, praying for recalling of the complaint petition which was forwarded to the Police Station. Accordingly, the learned CJM forwarded the said petition to the said Police Station. (4) After living separately for about 15 years the petitioner filed a case under Domestic Violence Act, vide MR case No.266/10, wherein, maintenance was granted to the respondent by the learned trial Court which was upheld by the two forum i.e. the Appellate Court and the Revisional Court, whereby the petitioner was directed either to let the respondent No. 2 live in the matrimonial house or to provide Rs 2,000/- per month towards rental charge and also to pay compensation. During the course the aforesaid Criminal Revision Court before the Hon ble High Court the respondent wife on 21.02.2014 filed a complaint case vide CR No.535/14, u/s 494/109 IPC,
4 with the same allegation that has been alleged in the earlier complaint petition CR. No.800/95, u/s 494/114/120(B)/34 IPC, to the effect that after continuing their marital life since 21.01.1987 with the respondent and having two children out of such wedlock, the petitioner married another women namely Nirupama Devi. Admitting about the earlier complaint case No.800/95, filed by her, respondent has stated that after knowing about the filing of the case against him, the petitioner immediately persuaded her to withdraw the case by threatening and forcing her to enter into an agreement wherein he agreed to pay the maintenance to her and her daughters. It is also admitted that in the complaint petition that the said agreement dated 14.07.1995 was registered before the Sub Register, Guwahati and pursuant to the agreement the complaint case so filed by her was withdrawn on 07.06.1995. In the present complaint petition referring about the case filed under the Domestic Violence Act, by her and other facts it has been submitted that as she could not able to collect the evidence of the second marriage and subsequently after much efforts she could obtain the certified copy of the marriage agreement entered into between the petitioner and her second wife she has filed the complaint petition. On the basis of the said complaint the Court took cognizance of the offence u/s 494/109 IPC. (5) In pursuance of the summons served on him the petitioner entered his appearance in the aforesaid case before the Court and referring to the
5 earlier case urged the Court to call for report u/s 210 CrPC and also filed a petition u/s 182(2) CrPC raising the issue of jurisdiction to try the case. Accordingly, the Court heard the objection so filed by the respondent/complainant, and finally pleased to dismiss both the petitions by the impugned order dated 05.11.2015, whereby the Court held that the Court has jurisdiction to try the case and as no such complaint case CR case 800/95 is pending between the parties so the case will proceed against the petitioner and directed the respondent to produce witnesses before charge. (6) Challenging the aforesaid order dated 05.11.2015, the impugned revision petition has been filed on the ground that the said order is bad in law as well as fact. It has been contended that the trial Court failed to appreciate that the present complaint case has been filed only to harass the petitioner, while she has already settled the matter of dispute far back in the year 1995. That apart that the respondent has shown her address as Mongoldoi in various other cases but, in the present case she has shown her address to be of Kamrup, Guwahati which is totally false, and accordingly, the learned Magistrate Guwahati has no jurisdiction to try such case u/s 494 of the IPC and the learned Magistrate has committed grave error by rejecting the petition so filed by the petitioner u/s 182(2) CrPC. Similarly, the present complaint petition with same set of allegations after 19 years of
6 compromise/settlement agreement between the parties is bad in law and fact and the cognizance taken by the Court also bad, hence it is urged that CR case 535/2014 is liable to be set aside. Further it is contended that the learned court below while passing the impugned order dated 05.11.2015 did not take into consideration of the documents annexed with his petition. (7) The respondent No. 2 has vehemently resisted the contention so raised by the petitioner and have also filed their affidavit-in-opposition. In response to the assertion so made by the petitioner regarding filing of the earlier case by the respondent in the year 1995 and about the agreement and recall of the case the same has been admitted, but it has been submitted that the same was withdrawn on threatening and by way of force by the petitioner. However, it has been submitted in terms of the said agreement the respondent failed to provide proper maintenance to her and her children so she have to file cases for getting proper maintenance under Domestic Violence Act in the year 2010. By referring to the other proceeding so filed by both the parties it has been contended by the respondent that there is no denial that she is the wife of the present petitioner. As regard the earlier CR Case No.800/95, it has been contended that no chargesheet/final report etc has been filed against the complaint petition, and the learned Magistrate has already obtained a report from the O.C concerned that no such case was registered as against the CR. Case No.800/95. On the
7 basis of which it has been contended that as there is no case pending in respect of CR. Case No.800/95 so there is no bar for proceeding to the present case as the marital offence is continuing one and there is no limitation for taking cognizance u/s 468 CrPC as regard such matrimonial offences. Further, the learned Magistrate has territorial jurisdiction to try such offences where the respondent reside and in this regard the decision reported in 1985 Criminal Law Journal 601 Ravindar Kaur Vs. Gurnit Singh & Ors. has been relied. (8) Considered the argument advanced on behalf of both the parties. According to the learned counsel for the petitioner such a contention raised by the respondent that the second complaint on the same sort of allegation can be filed is not maintainable in the given facts and circumstances while the respondent herself has filed the join petition to recall the complainant withdrawing all the allegations. Now, although there is no specific order by the Court in this regard but things remain that relying upon the said deed of agreement the respondent who was the complainant in the said case did not pursue the matter as a result of which the I.O. did not even registered the case on the basis of joint petition so forwarded to him. From the circumstances itself it reveals that the respondent/complainant was abide by the agreement and she never came forward immediately after execution of
8 the agreement that it was executed forcefully or on threatening by the petitioner. After a long gap of 19 years such a plea can never be sustainable. (9) Further it has been contended that the respondent has came with a vague evidence about the second marriage by petitioner, whereas offence of bigamy is to be strictly proved about the second marriage and in this regard decision of Madras High Court reported in 1989 Cr.L.J. 1829 (1) has been relied. Wherein para 7 of the judgment it has been held as below: 7..... (i) There is also no mention in the complaint in what manner the marriage took place. Admittedly, the parties are Hindus. While so the necessary ingredients of the offence under Section 494 IPC have to be mentioned and it is to be pointed out that there should be an allegation that the accused gone through a form of marriage recognised by law. (ii) In a bigamy case, the second marriage as a fact, has to be established, and the admission of the marriage by the accused is not evidence of it for the purpose of proving marriage as laid down in the case reported in Kanwalram Vs. Him Pra Administration AIR 1966 SC 614 : (1966 Cri LJ 472). Thus, taking into consideration the complaint filed by the first accused (the petitioner herein) with the second accused (the second respondent herein) taken along with the sworn statement did not disclose the essential ingredients of the offence under S.494 I.P.C. and on the allegations made in the complaint no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused it has been laid down by the Supreme Court in the case reported in Sharda Prasad v. State of Bihar, AIR 1977 SC 1754 in paragraph2 at page 1755 : (1977 Cri LJ 1146 at P. 1147) that it is now settled law that where the allegations set out in the complaint or chargesheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction u/s 482 of the CrPC to quash the order passed by the Magistrate taking cognizance of offence.
9 (10) On the other hand, contention of the learned counsel for the respondent is that the offence under Section 494 being cognizable offence relates to warrant procedure, same cannot be permitted to be withdrawn by the Court and there is also nothing to show that any judicial notice has been taken by the Court below on such petition and as such it can be held that there was no permission for withdrawal of the CR. Case No.800/95. Consequently, cognizance taken by the Court in the second complaint case vide CR. No. 535/14 is permissible. In this regard reliance has been placed upon the Madras High Court reported in 1999 Cr.L.J. 1013 (MAD), in the case of Chelliah vs. Yesudadial. (11) Regarding showing of different residential address by the respondent it has been submitted by the learned counsel for the respondent that as she has been thrown out from the matrimonial house so she has to reside in rented accommodation either in Guwahati or in Mongoldoi for the convenience of her children. That apart as the petitioner entered into the second marriage in Guwahati so the cause of action arises in Guwahati and residents of complainant/the respondent is not a determining factor. Relying upon the decision rendered in 2012 (4) GLT 440 Premabala Das Vs. Laxmi Charan Das, it has been urged that even after 19 years of marriage the claim of wife for maintenance was allowed. Further it contends that merely because the complaint has been lodged after 19 years it does not
10 imply that the offence ceases to end. In the written argument it has been submitted that the reason why the present respondent has chosen to file the complaint of bigamy is that the petitioner/husband is attempting to disown her and her daughters which will have a serious impact on the social image of the respondent and her daughters. That unless the complaint case is allowed to continue the petitioner/ husband will never own up his responsibilities towards his wife and daughters. Moreover, if the complaint alleging bigamy is not allowed to proceed to trial it may have an cascading effect on such helpless first wife who may be deterred from complaining against such offences and suffer in silence the cruelty meted out by their husbands. (12) Respondents referred Poonam Chand Jain and another v. Fazru reported in (2010) 2 SCC 631 wherein the Hon ble Supreme Court held that though there is no statutory bar on lodging a second complaint but it can be entertained only in exceptional circumstances. Such complaint will be entertained by the court (a) where the previous order was passed on incomplete record, or (b) on a misunderstanding of the nature of the complaint, (c) the order which was passed was manifestly absurd, unjust or foolish, (d) where new facts which could not with reasonable diligence have been brought on the record in the previous proceedings.
11 (13) I have considered the rival submissions and the decisions relied upon by both sides. (14) According to the respondents as there is no decision rendered by a court of law to the effect that the case was withdrawn by the petitioner as such the second complaint by the respondent is maintainable. On the other hand, basing upon the legal pronouncements referred to above the petitioner has submitted that the respondent has failed to make out any exceptional circumstances so as to make the second complaint by her. (15) In this case though admittedly no legal conclusion is found regarding dismissal of the earlier complaint filed by the respondent in the year 1995 but it is to be noted that there is no denial on the part of respondent about filing of any such complaint case in the year 1995 and subsequently arriving about settlement between them and submission of the same to the court with a petition for recall of the complaint. The court before whom the complaint was filed was made aware of such subsequent development by the parties and as the case was already forwarded to the police station for registration, investigations etc the learned Magistrate also forwarded the said withdrawal petition filed by the parties to the concerned investigating officer. Now it is found eventually after receipt of such petition from the parties the investigating officer did not register any case but for this cause
12 alone whether the petitioner can come up with a new case on exactly the same allegation which was recalled by her? Recall and withdrawal has the same meaning. Technically to be stated, there is no order as such regarding closure of the complaint case filed by respondent. But from the facts and circumstances it will emerge that by her own conduct the petitioner has abided all the conditions of the agreement that has entered into in the year 1995 and did not pursue the matter ever since and both parties were under the impression that on the basis of their petition, supported by the agreement, the case had been concluded. Due to such conduct of the parties themselves the case did not proceed and finally in view of the report of the investigating officer it has come out that no case was registered on CR case 800/1995 which was forwarded to him. (16) In the earlier complaint also petitioner raised the question of bigamy against the petitioner which was not proved and after some 19 years of the said incident the petitioner has come up with the present petition in the year 2014 contending that the said agreement was written by force and threatening and therefore the same is unacceptable. Her silence for long 19 years is indicative of the fact that she has no grievance against the petitioner. That apart the factum of threatening and using force is of no consequence as it was not challenged immediately after the execution of such document.
13 (17) Similarly the petitioner has come up with the allegation of remarriage by the petitioner with a document of marriage agreement between petitioner and his second wife. On the basis of such marriage agreement a marriage of a Hindu person cannot be proved by the petitioner. In terms of Section 494 of the IPC a marriage of a Hindu person has to be proved in a strict manner which is already pronounced by the Hon ble Apex Court. Such a contention of the respondent that as the petitioner failed to discharge his responsibility for the respondent and her children she decided to file a case afresh with the allegation of bigamy holds no water. It only tantamounts to harassing the petitioner actuated by malice and grudge. On a careful consideration of the complaint petition filed by the respondent it is to be noted that the respondent has no legal evidence to prove the accusation of bigamy against the petitioner and continuation of such proceeding will be nothing but an abuse of the process of law. (18) I find it extremely difficult to accept the other contention of the respondent in the given background of the case. So far as the point of jurisdiction has little consequence in view of the findings that filing of such subsequent criminal case by the respondent is itself not maintainable.
14 (19) The power under Section 482 of the CrPC is wide enough and if judiciously and consciously exercised it can take care of almost all the situations where the interference by the High Court becomes necessary on account of delay in proceeding, or for any other reason amounting to oppression or harassment in any trial, enquiry or proceedings. In appropriate cases the High Court can exercise the jurisdiction under Section 482 of the CrPC by quashing the FIR, investigation and even terminating the criminal proceedings if the case of abuse of process of law is clearly made out. While exercising such power the High Court can also examine whether there is any legal evidence justifying the conviction(rissi Anand v. Govt. of NCT Delhi, AIR 2002 SC 1531). The power of provision of Section 482 is not controlled by Section 397 of the CrPC. (20) In State of Haryana v. Bhajan Lal, AIR 1992 SC 604 the Hon ble Supreme Court discussed in detail the ambit and scope of High Court under Section 482 of the CrPC to the effect that such power is wide enough and by virtue of which the High Court can quash further proceeding in order to prevent the process of law from being abused and secure justice as such. In the aforesaid decision the Apex Court summarized the position by mentioning as many as seven principles and the principal 7 is relevant for consideration in this case which is applicable in the given circumstances. The guideline 7 provides that where a criminal proceeding is manifestly
15 attended with mala fide or where the proceeding is maliciously instituted with an ulterior motive or wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (21) The present case is squarely covered by the aforesaid principles. I am also persuaded by the judgment of the Hon ble Supreme Court in Ruchi Agarwal v. Amit Kr Agarwaland others (2005) 3 SCC 299 wherein it has been held that in case of family matters while both the parties entered into a compromise and part of the conditions were fulfilled by the husband and refusal of the other side to accept such compromise subsequently raising the ground of force and threatening cannot be accepted. (22) Keeping in view of the aforesaid proposition this court is of the view that the settlement agreement executed between the parties is comprehensive, legal(registered one) and binding between the parties, now the respondent cannot be allowed to wriggle out of it. I am constrained to hold that in view of the aforesaid subsequent event and conduct of the respondent it would be an abuse of the court if the criminal proceeding is allowed to continue. Therefore to do the complete justice, equally to both the parties, in my opinion such criminal proceeding should be quashed.
16 (23) For the reasons and discussions made above I deem it a fit case to invoke the provision of Section 482 of the CrPC. Accordingly the petition is allowed and CR case 535/2014 pending before the learned JMFC(M), Kamrup, is quashed and set aside. LCR be returned. No order as to cost. JUDGE Cha Gang/na