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Anilchandra Pitambardas Sagar -vs- Rajesh Harjivandas Jhaveri And on 8 November, 1990

Bombay High Court Anilchandra Pitambardas Sagar -vs- Rajesh Harjivandas Jhaveri And on 8 November, 1990
Equivalent citations:1991 (2) BomCR 156, 1991 CriLJ 487, II (1991) DMC 160
Bench: M Saldanha

ORDER

1. This is a Criminal Writ Petition under section 482 of the Code of Criminal Procedure, 1973 for quashing of a criminal complaint, being Case No. 76/3 of 1989, filed before the Court of the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Bombay. The proceedings were instituted on a private complaint which was filed on or about 13-6-1989 and the learned Magistrate issued process against all the six Accused, Nos. 2 to 6 of whom are the present petitioners Nos. 1 to 5 and original accused No. 1 is the present respondent No. 3 to this Criminal Writ Petition.

2. The facts of this case present a most distressing and unsavoury state of affairs and it is, therefore, necessary to set out a few material details. Respondent No. 3 is a family friend of petitioner No. 1, who is the father of petitioner No. 3 Sunita, who, in turn, is the wife of respondent No. 1, the original complainant, petitioner No. 2 is the mother of the girl Sunita. Petitioner No. 3 is the grand-mother petitioner No. 4 is the sister of the girl Sunita, petitioner No. 3, as pointed out earlier, is the wife of the original complainant. In other words, the complaint is directed virtually against three generations of the family. The learned Magistrate has issued process under section 417 read with Section 189 of the Indian Penal Code against the six accused. The present criminal writ petition contains a prayer that this Court should exercise its inherent powers for the purpose of quashing the criminal proceedings instituted before the trial Court.

3. Briefly stated, the charges as set out in the complaint indicate that pursuant to the good offices of respondent No. 3, who was a family friend, in the month of September, 1987, certain matrimonial negotiations took place as a result of which on 11-10-1987 the complainant and Sunita, the present petitioner No. 3, got engaged. It is the case of the complainant that at that time of the meetings that were held prior to the marriage, all the accused, which specifically included accused No. 6 Sunita, are alleged to have represented to the complainant and his father and mother that Sunita was hale and hearty, that she was educated, that she had passed her S.S.C. Examination and that she knew the art of cooking and doing the household work and above all, that she had no infirmity or disease. It is, therefore, the case of the complainant that he acted on these representations and that he proceeded on the footing that the representations in question were true and agreed to marry Sunita.

4. The marriage between the parties took place on 29-1-1988. In paragraph (7) of the complaint, there is a vague statement which reads as follows :-

“I state that after the marriage accused No. 6 cohabited with me as my wife at her matrimonial home.”

In the subsequent paragraph, there is a statement to the effect that accused No. 6 was constantly complaining about bleeding and acute pain; and that the complainant husband sent her with his mother to one Dr. P. G. Dalvi who, in turn, referred her to Sanjeevani Clinical Laboratory. It further appears that a urine test was recommended and a report dated 10-2-1988 was issued. The complainant had apparently relied on this document before the trial Court, Mr. Sutrale, the learned advocate appearing on behalf of respondent No. 1, has produced before me a copy of the analysis report. The analysis report is a general analysis of the type that is normally done in such cases. Two of the items in the analysis report have been underlined in red. The first of them is against the column “Protein” and the analysis states “Trace”. The second is in respect of microscopic examination regarding “Pus Cells” against which there is a finding of “10-12/hpf.” Apart from this, the analysis report mentions nothing also and there is no reference to any abnormality nor is there a mention of any serious ailment. In the complaint, an allegation is made on the basis of this analysis report that the reading of the analysis report indicates certain “infirmities” as far as Sunita was concerned. There is no indication as to what infirmities the complainant is referring to nor has the basis for this reckless allegation been set out. Strangely enough, in the very next sentence, the complainant states :

“I state that due to the said infirmities which were not disclosed at the time when the representations were made by the Accused persons came in the way and the marriage could not be consummated and that is the first infirmity which ruins the marriage. Had these vital facts were not suppressed by the Accused the marriage would not have been brought about and my life would not have been made miserable as I was deprived of exercising the conjugal rights.”

Significantly, this statement directly contradicts what has been mentioned in the previous paragraph. It is further necessary to point out that the Complainant further states that after the report was obtained Dr. Dalvi told the Complainant’s mother that had the matter been delayed even for four days the kidneys of Accused No. 6 would have stopped functioning and she would have been required to be put on dialysis. The sum and substance of this statement would indicate that sometime in the month of February 1988, Accused No. 6 underwent certain medical tests which disclosed that she was suffering from a urinary/kidney ailment. The nature of the ailment has not been set out nor is there any medical document in support of these allegations. The most material ingredient, namely, the question as to whether the girl Sunita was suffering from what the Complainant has categorised as “infirmities”, which presupposes chronic infirmities or defects of a physical nature, is entirely a different issue. There is no prima facie evidence disclosed even taking this material at its face value in support of the Complainant’s case that at a point of time prior to the marriage the girl Sunita was afflicted with this or any other infirmity of a serious nature. In such circumstances, it was most elementary for the learned trial Magistrate to have insisted on the Complainant producing before him any satisfactory evidence in support of the statements made in the complaint; and furthermore, in a case of the present type, evidence to totally rule out the possibility of the condition that was disclosed in February 1988 having been caused by any factors at a point of time subsequent to the marriage and above all that all or any of the accused were aware of the existence of the so-called infirmity.

5. In paragraph (9) of the complaint, a second charge has been levelled, namely, that the eyesight of Sunita was discovered at some subsequent point of time to be weak and that her vision was poor. A further statement has been made in paragraph (9) that her eyes were having such defects that the same could not be cured by putting the glasses or wearing spectacles. In support of this submission, Mr. Sutrale, the learned advocate appearing on behalf of the Complainant, states before me that the complainant had produced before the trial Court a report of an Oculist dated 5-8-1989, which indicated that in the month of August 1989 when the girl Sunita’s eyes were examined that the reading of minus 0.5 as far as the right eye was concerned and minus 0.25 as far as the left eye was concerned were noted. In any event, it is unnecessary to refer to this aspect of the matter because the charge is frivolous and inconsequential in so far as it is wholly immaterial as to how good the eyesight of the girl Sunita was as far as the evaluation of the present proceedings are concerned; because this is not a case where there were any basic or fundamental infirmities in the eyesight of the girl Sunita which were so grave and so serious as to affect the very institution of the marriage. As far as the learned Magistrate was concerned, he had before him a case where the charges were to the effect that the girl was suffering from serious infirmities. In this view of the matter, unless satisfactory evidence in support of such charges was produced before him, merely because the eyesight of the girl was found to be slightly weak or because she had a urinary infection, the issuance of process under Section 417 of the Indian Penal Code could not be justified.

6. Coming to paragraph (10) of the complaint, there is a very grave and offensive allegation made against the girl Sunita which is to the effect that she is alleged to have disclosed to the Complainant about an incestuous relationship between herself and her own father prior to the marriage. It is most unfortunate and unpalatable that a charge of this type has been made in the complaint. I shall set out the reasons for these observations. Suffice it to say that the accusations in paragraph (10) of the complaint are in substance to the effect that the girl Sunita made these horrifying disclosures to the Complainant-husband. Had this been true, the Complainant would have, in the first instance, clearly and frankly indicated when and under what unusual circumstances this disclosure was made. If at all any credibility is to be attached to a bald allegation of such gravity, it would be necessary to indicate as to what was the unusual situation that forced/provoked the girl to make such a startling disclosure. Merely because the Complainant makes a statement in writing or on oath before the trial Court, the learned Magistrate is not absolved of the responsibility of judicially evaluating and testing the correctness of the statement on the basis of the remaining material before him and on the probabilities of the case. In the present case, had this particular allegation been one of truth, the Complainant would have very clearly indicated under what circumstances the girl Sunita made a confession/disclosure of this type to him and the point of time when this was done. The subsequent statement in this paragraph and in particular the last sentence of paragraph (9), which reads as follows, are significant.

“Thus this was another vital fact which was suppressed by the Accused persons, who simply wanted to deceive me and the members of the family. However, Accused No. 6 ultimately was given an opportunity to mend her ways and then she resided with him at the matrimonial home at Malad.”

7. It is quite inconceivable when the Complainant himself avers that the knowledge of an incestuous relationship totally shattered him mentally that he would have thereafter given the girl a chance to mend her ways and to continue with the matrimonial state. It is of vital importance while examining the complaint as a whole and while examining the acceptability or otherwise of the averments in the complaint that the Court must judicially evaluate what is placed before it even at the stage of the enquiry under Section 202 of the Code of Criminal Procedure.

8. Mr. Sutrale, the learned advocate appearing on behalf of Respondent No. 1 husband, has vehemently argued that the three Heads of charge as set out by his client in the complaint are required to be substantiated and established before the trial Court; and that if taken at their face value, these statements make out a prima facie case for process under Section 417 of the Indian Penal Code that this Court should not interfere with the proceedings at this stage. In support of his submissions, Mr. Sutrale has placed strong reliance on the decision of the Supreme Court in the case of Radhey Shyam v. Kunj Behari, . While interfering with an order passed by a High

Court quashing a prosecution under section 302 read with S. 120B of the Indian Penal Code against the respondents, the Supreme Court had observed that the insufficiency of evidence as placed before the Court by the Investigating Authority in that particular case was not a valid ground on which the High Court ought to have interfered. The Supreme Court has reiterated the principle enunciated in several decisions that where a prima facie case has been made out, the Prosecution must be given an opportunity of establishing its case before the trial Court. In the present proceedings, however, for the reasons set out by me, I am unable to hold that any prima facie case for issue of process was made out before the learned trial Magistrate at the time when the process was issued, taking the statements in the complaint at their face value, the verification statement of the complainant and the documents produced by the Complainant in support of the charges.

9. There are certain further allegations contained in paragraph (10) of the complaint which are briefly to the effect that after Accused No. 6 Sunita left the matrimonial home in January 1989, in the month of March 1989 she was admitted to the Sunflower Nursing Home and that she had undergone an abortion there. These facts are not at all material as far as the present proceedings are concerned, because the pregnancy or otherwise or for that matter the treatment undergone by Accused No. 6 Sunita in March 1989 has nothing to do with the order of the learned Magistrate issuing process on the present complaint which basically concerns itself with the factor of cheating in relation to the marriage solemnised in January 1988 and is, therefore, confirmed to the facts as they obtained at that point of time.

10. Mr. Parekh, the learned advocate appearing on behalf of the Petitioners, has placed reliance on the judgment of the Supreme Court in the case of State of W.B. v. Swapan Kumar, . In

that decision, the Supreme Court has laid down that the First Information Report in question must disclose the basic ingredients of the offence. There is no quarrel with this proposition and, in fact, it is on the application of this very test that I have come to the conclusion that the basic ingredients of the charge under S. 417 of the Indian Penal Code have not been made out in the present case.

11. Mr. Parekh further placed reliance on the decision of the Supreme Court in the case of Delhi Municipality v. Ram Kishan, . The Supreme Court in this case laid down the

proposition, which is now well-settled law, that a High Court while exercising inherent powers at the preliminary stage of a proceeding for the purposes of quashing the order can only do so if no case has been made out before the trial Court. As indicated earlier, on the basis of the material placed before the trial Court, I am of the view that no prima facie case has been made out.

12. Mr. Parekh also advanced certain submissions in support of his contention that it was only after a complaint was lodged to the police in May 1989 by the girl Sunita for an alleged offence under Section 498A of the Indian Penal Code that the present Complainant, as a counter-blast, came forward before the Magistrate’s Court and filed the present complaint. His allegation is to the effect that, admittedly, the girl Sunita had left the matrimonial home in January 1989 and if, as alleged, the Complainant and the entire family had been defrauded in the marriage and furthermore if the girl Sunita had disclosed such serious charges as incestuous relations with her own father that at least at that point of time when she had come to the matrimonial home the Complainant would have immediately taken appropriate proceedings and would have lodged the complaint in respect of the charges, if at all they were true. This again was a case of alleged cheating after the parties had lived together for one full year. As against this, Mr. Sutrale, the learned advocate appearing on behalf of Respondent No. 1 husband, has pointed out to me that given the set-up in which persons live in this country and the social background of the parties, it would be perfectly logical to expect that even if certain difficulties had arisen that the husband had not thought of taking the same before a judicial forum; that he would have waited for sometime and as always happens, he would have hoped that some settlement or solution could have been found and that therefore merely because the complaint has been lodged in June 1989 that the lapse of time should not be held against him. To this extent, the submissions of Mr. Sutrale are justified, because in delicate matters relating to matrimonial disputes, we cannot expect the respective parties to immediately approach a Court of law within the shortest possible time after the problem has arisen. However, as far as the present complaint is concerned, the fact that the same has been filed in June 1989 alone is not at all the ground on which I am inclined to quash the proceedings. As indicated earlier, the material placed before the trial Court fails to make out the essential ingredients of the charge and on a total examination of the complaint and the documents placed before the trial Court, I am clearly of the view that the learned Magistrate was not justified in entertaining the present complaint.

13. It was urged on behalf of the Petitioners by Mr. Parekh that this Court should take serious note of the abuse of judicial process that has taken place as far as the use of the machinery of the criminal Court is concerned. He has submitted that the girl Sunita was harassed, humiliated and ill-treated and that, finally, she had to leave the matrimonial home in January 1989 and she also had to file a complaint with the Police in May 1989 for an offence under section 498A of the Indian Penal Code. In order to hit back at the wife and her entire family, the present criminal complaint has been filed in the following month in which Accused No. 1, who has nothing to do with the family but is only a friend and a well-wisher and a member of the community, has been shown as an accused. What is even worse is that the 80 year old grandmother of the girl Sunita has been shown as Accused No. 4, and the unmarried sister has been shown as Accused No. 5 and has been made a party to a criminal prosecution. Mr. Parekh submitted that there are not even any averments as far as the role played by Accused Nos. 1, 4 and 5 are concerned. Similarly, the mother of the girl Sunita has also been shown as an accused and dragged before the criminal Court without any case being made out against her. For that matter, a perusal of the entire complaint will indicate that no specific averments have been made against any specific accused. There is only a general and a vague statement to the effect that all the Accused are responsible for the commission of the offence. This is not only a most unsatisfactory state of affairs, but it goes against the basic principles of a criminal prosecution which requires, in the first instance, that the prosecuting party must establish to the satisfaction of the Court a specific overt act or omission on the part of each of the accused, the role ascribed to that accused and justify as to how and under what circumstances the accused in question is required to be proceeded against. The consequences of obtaining an order of process in a criminal proceeding are serious. Merely because a Complainant invokes Ss. 34, 109 or 114 of the Indian Penal Code or for that matter Section 120B of the Indian Penal Code or because the draftsman of the complaint uses the term “all the accused are liable”, the trial Court would not at all be justified in issuing process against those accused. The present case is a classic instance of how on the basis of a vague statement an entire family, including an 80 year old lady, can be dragged before a criminal Court merely because the Complainant makes a bald allegation that they are responsible for the offence. It further follows from this unsatisfactory state of affairs in the present case that if the filing of the criminal complaint against the greater number of accused who had nothing to do with the charge has been resorted to by the Complainant obviously out of vendetta, that the only logical sequitur which follows is that there is grave suspicion with regard to his bona fides even as regards the remaining Accused. This, however, is not a conclusive circumstance. If, however, a specific case had been made out against even one of the Accused, I would have been inclined to separate the case of that Accused, but that is not so in the present case.

14. The Supreme Court in the decision recorded in the case of Madhavrao v. Sambhajirao, , has very clearly observed that at

the point of time when an application for quashing is made, the High Court is fully empowered to take cognizance of the special features of a case. Admittedly, the present criminal prosecution is the fallout of a matrimonial break-up or a matrimonial dispute. Under these circumstances, the learned Magistrate ought to have been put on his guard and ought to have exercised a high degree of caution before indiscriminately issuing process against all the Accused on a charge of cheating. The basic ingredient for such a charge is that a false representation should be made. In the present proceedings, it is alleged that the girl Sunita suffered from serious infirmities. The infirmities alleged are that she was found suffering from a urinary infection about a month after the marriage. There is not even a suggestion in the complaint that there is evidence to indicate that this condition was either serious or that it constituted what the Complainant characterises as basic infirmity and furthermore that she had shown any signs of this at any earlier point of time or that her family knew about it or for that matter that they knowingly suppressed this fact or made false representations to the contrary. Again, the second charge is with regard to the weakness of eyesight. There is nothing on record to show that there was anything seriously wrong with the girl’s eyes prior to the marriage. Merely because she requires glasses at some subsequent point of time, it would be absurd to allege that she was suffering from what the complainant characterises as an infirmity and that it was to the knowledge of the family and that the same was deliberately suppressed.

15. The Complainant has been bold enough to make a serious charge against the girl Sunita accusing her of incest with her own father. It is necessary to examine this unsavoury aspect of the case also. Assuming the charges were to be true, one may reasonably conclude that the only persons who knew about it were the girl Sunita and her father Accused No. 2. In the first instance, it is not the Complainant’s case at all that the matrimonial life was disrupted because of the girl’s alleged incestuous attachment with her father. Admittedly, they have lived together for one year during which time the basic charge was with regard to the so-called physical infirmities. Furthermore, if any such situation was prevalent and the girl subsequently disclosed the same, the Complainant would not have cohabited with the wife thereafter, and in the complaint that was filed a specific charge would have been made to the effect that Accused Nos. 2 and 6 are guilty of having suppressed this very serious aspect of the case. One needs to examine this aspect a little further. The question arises as to whether if the Complainant’s advocate contends that he desired to establish this sordid aspect of the case before the criminal Court can he be deprived of that opportunity. To my mind, taking into account the totality of circumstances, this allegation is thoroughly absurd; it is clearly an after thought and has been made to hit back at the girl Sunita and her father, because they have prosecuted the Complainant for an offence under section 498A of the Indian Penal Code. Apart from the bare word of the Complainant, there is, admittedly, no other evidence, and consequently, in the light of the Complainant’s past, his low degree of credibility and the circumstances against him, his bald statement will not be sufficient either for the purpose of framing a charge against Accused Nos. 2 and 6, much less recording a conviction. Where bona fides of the Complainant are in grave doubt and where the conduct of the Complainant bristles with mala fides, the continuance of the criminal prosecution even against Accused Nos. 2 and 6 on this solitary charge would be against the interest of justice and against public interest. This is a case which is squarely covered by the decision of the Supreme Court as reported in the case of Madhavrao v. Sambhajirao, .

16. Section 202 of the Code of Criminal Procedure enjoins upon the learned Magistrate the duty of ascertaining as to whether a prima facie case has been made out against an accused. The law takes into account the important aspect that the accused is unaware of the proceedings at that point of time and consequently, the Court only has the benefit of hearing the version from one side. Undoubtedly, an aggrieved person will present his case and project it in such a manner that the Court would be inclined to accept that there exists a charge against the accused. It is for this reason that under the new Code of Criminal Procedure, the trial Court is required to record the substance of the Complainant’s evidence in the form of verification and to judicially evaluate from this evidence and all such other material produced before the Court as to whether a prima facie case is made out. Such a judicial scrutiny necessarily implies that the material in question is scanned and evaluated and not mechanically accepted at face value. In a case such as the present one which bristles with inherent contradictions and where the allegations are so transparent as not to hold any water, the Court would have been justified in refusing to issue process. This is all the more so because the complaint contains vicious and scandalous allegations that cannot pass the test of scrutiny. In such cases, the trial Magistrate would be fully justified in dismissing the complaint at the very outset.

17. The scrutiny under Section 202 of the Code of Criminal Procedure also requires that the complaint should make out a case setting out the basic ingredients of the offence alleged. In a dispute of the present type where the cheating is in relation to a marriage, an examination of the case law would have been useful. It is only in those cases where a false representation with regard to caste or status or something that was so fundamental to the very marriage contract that was proved to be a false inducement was characterised as cheating. In the case of M. N. A. Achar v. Dr. D. L. Rajgopal reported in 1977 Cri LJ (NOC) 228 (Karnataka), the accused was convicted of cheating because he professed himself to be a bachelor when, in fact, he had a wife living. It is only in cases of such conclusive evidence that a criminal Court would entertain a complaint for cheating in relation to marriage, whereas; on the other hand, where the facts indicate a background of a matrimonial break-up and family hostility, the trial Court would have to be extremely cautious before permitting the process of a criminal forum to be utilised for settling scores that emanate out of a matrimonial skirmish.

18. In dealing with cases where charges are made against women, elderly persons and the like, it would be advisable for the trial Magistrates to exercise extreme caution. Where the complaint contains allegations that are scandalous and atrocious, a Court would be failing in its duty if it did not stop, at the very inception, the abuse of judicial process.

19. In this view of the matter, the rule is made absolute in terms of prayer (a). The proceedings, being Criminal Case No. 76/S of 1989, pending before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, are quashed. The interim orders in this case stand vacated.

20. At this stage, Mr. Sutrale, the learned Advocate appearing on behalf of Respondent No. 1, makes an application that the operation of the above order be stayed for a period of 2 months as his client would like to adopt certain proceedings. The application of Mr. Sutrale is granted. Accordingly, the operative part of this order is stayed for a period of 2 months, and it is clarified that during this period of 2 months, the interim orders passed by this Court in the above petition shall continue.

21. Order accordingly.

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