Gurmel Singh vs Gurmail Kaur

V.S. Aggarwal, J.—Gurmel Singh and Jagir Kaur (hereinafter described as ''the petitioners'') seek quashing of the complaint dated 19.7.1993 (Annexure P- 1), the summoning order dated 13.8.1993 (Annexure P-2) and the order passed by the learned Additional Sessions Judge dated 3.8.1994 (Annexure P-3).

The relevant facts giving rise to the present petition filed u/s 482 of the Code of Criminal Procedure are that Gurmail Kaur was married to Gurmel Singh - Petitioner No. 1 on 15.6.1975 as per Sikh rites. They were blessed with two children on 24.9.1976 and 22.7.1978 respectively. Gurmel Kaur respondent filed a complaint with respect to the offences punishable under Sections 494 and 494 read with Section 109 of the Indian Penal Code in the Court of Judicial Magistrate, 1st Class, Moga. She alleged about her being harassed and beaten by respondent No. 1 and his two sisters Sikandar Kaur and Nachhattar Kaur. She was turned out of the house. On 4.10.1992 petitioner No. 1 is alleged to have contacted second marriage with Parminder Kaur and Karnail Singh Granthi performed the said marriage. Ali the accused are stated to be aware that petitioner No. 1 was married to the respondent. On these broad facts, the complaint as such was filed.

The learned Judicial Magistrate, Moga on 13.9.1993 held that prima facie case is made against Gurmel Singh and Jagjr Kaur petitipners besides Parminder Kaur, Sikandar Kaur and Nachhattar Kaur. They were summoned as accused with respect to offence punishable u/s 494, Indian Penal Code (Petitioner No. 1 and Parminder Kaur) while others were summoned with respect to offence punishable u/s 494 I.P.C., read with Section 109 I.P.C. Aggrieved by the said order, the present petitioners preferred a revision petition with the Court of Sessions. It was dismissed by the learned Additional Sessions Judge of 3.8.1994. Hence, the present petition filed u/s 482 of the Code of Criminal Procedure.

On behalf of respondent Gurmail Kaur, preliminary objection was raised to the effect that under the Code of Criminal Procedure a second revision petition is not maintainable and inherent powers of the Court cannot be utilized so as to quash the proceedings regarding which there is specific bar in approaching the High Court in the form of a revision petition. Learned Counsel for the petitioners on the contrary alleged that in the facts of the case when no offence is made out against the petitioners, it is inherent power of the Court u/s 482, Code of Criminal Procedure which can well be utilised. To appreciate the said controversy, reference may be made to Section 397(3) of the Code of Criminal Procedure which runs as under:

"397(3). If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

It leaves no doubt that if the Court of Sessions has dismissed the revisions then the High Court cannot exercise the powers u/s 397, Code of Criminal Procedure in entertaining another revision petition against that order. However, Section 482 of the Code of Criminal Procedure saves the inherent powers of the High Court in an appropriate case and the said provision read as under:

"Nothing in this case shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

Powers u/s 482, Code of Criminal Procedure can only be utilised to prevent abuse of process of the Court or where there is an abuse of process of the Court. Trey will certainly be not utilised where there is a specific bar under the Code of Criminal Procedure.

Learned Counsel for the petitioners strongly relied upon the decision of this Court in the case of Tej Kaur and Another v. Amarjit Kaur reported as 1993(1) Recent Criminal Reports 310. In the cited case there was no assertion as to how the essential ceremonies of marriage were performed. It was held that the accused could not be convicted and the proceedings were quashed. Perusal of the decision in the case of Tej Kaur (supra) shows that the question in controversy that has been raised by learned Counsel for the respondent is, as to if inherent powers u/s 482, Code of Criminal Procedure can be invoked, when the revision petition has already been dismissed, was not before the Court. Therefore, the said decision will not help the petitioners.

In that event the attention of the Court was drawn to the Division Bench decision of this Court in the case of Kulwant Kaur v. Shaminder Paul Singh and Others, 1992(1) Recent Criminal Reports 587. The facts in the case were that a complaint was filed in terms that the first wife was still living and second marriage has been contacted by the husband. Certain other relatives of the husband were also impleaded as accused persons. In the absence of allegations that the marriage was performed with essential ceremonies, the accused were acquitted. The facts speak for themselves. The question as to whether the inherent powers have to be exercised was not for consideration before this Court. The stage of acquitting and convicting the accused has not even arisen. It will not, therefore, at this stage of the case be a good precedent.

In fact the scope of Section 482 Code of Criminal Procedure vis-a-vis Section 397(3) Code of Criminal Procedure was considered by the Division Bench of this Court in the case of Charanjit Singh and Others v. Smt. Gursharan Kaur 1990 (2) Cri R 584. After scanning through various precedents, in paragraph 17 the following conclusions were drawn :

"The legal position that thus emerges is that provisions of Section 397 of the Code do not constitute or opera teas a bar to the exercise by the High Court of its inherent powers u/s 482 of the Code. The limitation here, as observed in Raj Kapoor''s case (supra) is self-restraint and no more. It must, of course, be observed that where an order is amenable to revision, the order of the Revisional Court should be interfered with very sparingly and that too only for the purposes as envisaged by Section 482 of the Code. Such cases could clearly be few and far between."

The Division Bench decision referred to above in the case of Charanjit Singh (supra) settles the law but it would be appropriate to take note of the two subsequent decisions of the Supreme Court. In the case of Dharampal & Ors. v. Smt. Ramshri & Ors. reported as Jt 1993(1) 61 : (1993) CCR 47 (SC), the Supreme Court was concerned with a similar question identical to the present position under consideration. The Supreme Court allowed the appeal where the High Court had exercised inherent powers after the revision petition had been dismissed and concluded as under :

"The Sessions Judge had dismissed the said application on 14th May. 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers u/s 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside."

No different is the view expressed in the case of Ganesh Narayan Hegde v. S. Bangarappa and Ors. 1995 (2) R C.R. 373 : IV (1995) CCR 20 (SC). The scope of Section 482, Code of Criminal Procedure was considered in circumstances when second revision could not be filed. In paragraph 7 the Supreme Court held

"A second Revision does not lie under the Code, and though an application u/s 482 of the Code of Criminal Procedure is not barred, the High Court cannot sit and act as the second Revision Court while exercising the powers u/s 482. This provision can be invoked only where there is an abuse of process of Court or otherwise to secure the ends of justice. Learned Counsel complained that the learned Single Judge has examined the matter as if he were an Appellate Court and quashed the charge on that approach and that he has exceeded his jurisdiction in doing so and in interfering at an interlocutory stage."

Subsequently, the conclusions were drawn in paragraph 12 which runs as under:

"While it is true that availing of the remedy of the revision to the Sessions Judge u/s 399 does not bar a person from invoking the power of the High Court u/s 482, it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges. A few decisions of this Court may usefully be referred at this stage."

It is apparent from the perusal of the case Ganesh Narayan Hegde (supra) that the legal position that emerges is in line with the case of Charanjit Singh (supra) that where second revision petition is not maintainable, the High Court would be slow to act while exercising its inherent powers. In extreme cases where it is satisfied that it amounts to total abuse because the interest of justice so require, would the High Court interfere particularly when the proceedings are vexatious or without jurisdiction. Merely because the High Court comes to a differing conclusion or likely to come at different conclusion, will not permit the Court to interfere as such.

With this background one can travel again to the facts of the case. The petitioners were summoned as accused persons by the learned Judicial Magistrate, Moga after recording the preliminary evidence. The revision petition was dismissed by the learned Additional Sessions Judge filed against the order summoning the petitioners as accused. To urge that the order summoning the petitioners could not be passed because it is not proved as to how the second marriage was performed, will not be correct. Presently only a prima facie view has been formulated. It is not with an eye set on ultimate conviction as such. That fact has to be considered at the appropriate stage. As for present summoning the accused cannot be termed to be a illegal order. It will not be securing the ends of justice in quashing the proceedings at this stage. Consequently, there is no ground to interfere.

For all these reasons, the petition must fail and it is not the appropriate stage to interfere. Dismissed.