Manju Kohli vs Atul Puri

A. P. Chowdhri, J.

Petitioner No. 3 Smt. Sudha is .the daughter of petitioners Nos. 1 and 2, who are her parents. The respondent is husband of Smt. Sudha. The respondent (husband) filed a complaint under sections 500/34/149 of, the Indian Penal Code against the petitioners in the court of judicial Magistrate 1st Class, Amritsar, on January 22, 1990. The complaint is founded on an allegation made in a petition dated June 13, 1989, under section 125 of the Code of Criminal Procedure made by the wife against the husband in the court of Chief Judicial Magistrate, Amritsar. In para 4 of the said petition for maintenance, it was averred by the wife that the respondent (husband) was a habitual drunkard and had illicit relations with his sister inlaw named Devyani wife of his younger brother, Arvind Puri. Further, allegation made in para 9 of the petition under section 500 of the Indian Penal Code is that the petitioners approached the respondent to arrive at an amicable settlement. The meeting was held at the house of maternal uncle of the respondent who is an ExMLA. Several respectable persons named therein were present. In their presence the petitioners i.e. Smt Sudha and both her parents again repeated the allegation that the respondent had illicit relations with Mrs. Devyani, wife of Arvind Puri, and that is why she was not going to live with the respondent. After recording preliminary evidence, the Chief Judicial Magistrate, Amritsar. passed the summoning order Annexure P3 dated June 14, 1990 The petitioners seek quashing of the complaint as also the summoning order on the ground that the same is an abuse of the process of Court.

It cannot be disputed that whether the allegations made in the complaint under section 500 of the Indian Penal Code are true or fals, cannot be gone into in the present proceedings. For the purposes of sec. 482 of the Code of Criminal Procedure the allegations made therein must be assumed to be true. It is also not disputed that the allegations do constitute the offence of defamation as defined in section 499 and the wife has no immunity from being prosecuted for defamation on the ground that the defamation committed was of her husband. See M.S. Verghese v. T.J. Ponnan and another, AIR 1970 SC 1876.

Shri P.S. Hundal, learned counsel for the petitioners, put forward two contentions :

(i) The offence of giving false evidence defined in section 191 and punishable under section 193 of the Indian Penal Code is constituted by the allegations made in the petition under section 125 of the Code of Criminal Procedure and therefore, the Court could not take cognizance without the requisite sanction in view of the provisions of section 195 (1)(b) of the Code of Criminal Procedure. Reliance is placed on Kallumatam Gurubasayya v. Sanna Setra Siddalingappa, AIR 1940 Madras 677.

(ii) The case of the petitioners is squarely covered under Ninth Exception to section 499 defining defamation and therefore, the complaint deserves to be quashed.

The contention of the learned counsel for the respondent, on the other hand, is that no sanction under section 195 (1)(b) of the Code of Criminal Procedure for prosecution was required and that benefit of exception to section 499 of the Indian Penal Code cannot be claimed by the petitioners at this stage. It will be only during the trial that the petitioners, would be entitled to substantiate the necessary ingredients of Ninth Exception and take benefit thereof. He has referred to a number of decisions of the Supreme Court in support of his contention.

I have given anxious consideration to the respective submissions of the learned counsel.

Prima facie, the offence under section 193 as defined in section 191 in the facts and circumstances of the case does not require sanction under section 195(1)(b) of the Code of Criminal Procedure. One of the ingredients of the offence of giving false evidence defined in section 191 is that the maker of the statement is either legally bound by an oath or an express provision of law to state the truth. I have not been referred to any provision showing that the petitioner was legally bound by an oath an express provision of law to state the truth, in the petition for maintenance. It is significant that the copy of the petition Annexure P1 placed on record by the petitioners, contains no verification at the foot of the petition. It is settled law that to attract the application of section 193 it must be shown that the statement was made on oath or verification and such oath or verification was validly administered/made and it was in accordance with an express provision of law. In the absence of any provision having been brought to my notice and the fact that the petition does not beat any verification, prima facie section 193 is not attracted and prior sanction under section 195 is not required. In so far as the authority relied on by the learned counsel for the petitioners is concerned, the same is a short order without discussing the aspect which has been referred to by me above. It is hardly of any assistance to the petitioners.

On the second point, it is settled law that the benefit of the exception cannot be claimed at this initial stage. Reference in this connection may be made to Om Parkash v. State of Haryana, AIR 1971 SC 1388 and Sewakran Sobhani v. R.K. Karanjiya and others, AIR 1981 SC 1514. It is settled law that availability of the protection under the exception could not be examined at the stage of summoning and it has to be examined only during the trial.

For the foregoing reasons, there is no merit in either contention of Mr. Hundal. The petition under section 482 of the Code of Criminal Procedure accordingly fails and the same is dismissed. The parties through their counsel are directed to appear in the trial Court for further proceedings according to law on. February 18, 1991.