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Judgment
Heard Mr, Mr. R. Ali learned counsel for petitioner. Also heard Mr, A. K. Bhuyan learned counsel for the respondent No. 2.
Present application has been preferred under section 482 CrPC for quashing the complaint case being CR Case No. 2512/2015 pending in the Court
of SDJM (S) II, Kamrup (M) Guwahati under section 494/495 IPC.
The respondent herein lodged the complaint in the Court of the CJM, Kamrup Guwahati to the effect that on 11.01.1996 he got married with the
present petitioner but due to various reasons beyond expectation and limitation of the complainant, for the conduct of his wife, he ultimately divorced
his wife on 18.08.2011 as per Muslim Law. Later on, respondent came to know that the petitioner was previously married to another person and
during subsistence of the previous marriage she entered marriage with the respondent by suppressing the earlier marriage. It is stated in the complaint
that he came to know that the petitioner got married on 11.6.1987 with one Saukat Ali and their marriage still subsisting not dissolved and she has
entered into the second marriage with the respondent for which she is liable to be convicted under section 494/495 IPC.
The aforesaid complaint was registered as CR Case No. 2512/2015 and after examination of the complainant, the court took cognizance of the
offence under section 494/495 IPC and issue summons to the accused/the petitioner to face the trial.
Challenging the aforesaid case the present petition has been preferred under section 482 CrPC for quashing the aforesaid complaint case on the
ground that the petitioner is cousin sister of the respondent and they entered into their marriage by knowing each other. Denying any sort of marriage
earlier it has been submitted that by demanding landed property and cash amount etc. the petitioner was tortured by the respondent and finally driven
her out from their house for which she has to take shelter in the house of her father and thereafter she filed a case under section 498A IPC vide All
women PS Case No. 51/2011 and as a counterblast the respondent also filed a counter case being Bhangagrah PS Case No. 123/2011 under section
447/323/506/353/34 IPC.
It is contended by the petitioner that she has challenged the divorce given by the respondent before the Family Court which is in pending. She has
also filed petition under Domestic Violence Act as well as petition under section 125 CrPC but the respondent herein manufactured some forged
documents regarding marriage in collusion with the Sadar Kazi, Kamrup, to frustrat the claim of the petitioner. Further it is stated that the respondent
filed a petition before the Family Court seeking custody of the son and in the said petition the accused petitioner had made an averment that the
petitioner earlier married to one Saukat Ali in the year 1987 and was divorced by said Saukat Ali in the year 1994. One divorce certificate was also
attached by the petitioner himself in the aforesaid case. But despite such his admission about the divorce between the parties, the respondent had filed
the present complaint petition with the false allegation that she married the respondent during the subsistence of her earlier marriage. Accordingly,
prayer has been made to set aside the aforesaid criminal proceeding.
The respondent in his affidavit-in-opposition has seriously contended all the contention of petitioner made in her petition. It is submitted that although
the said Saukat Ali and the father of the petitioner denied the marriage of the petitioner with Saukat Ali, but the investigating Officer of the said case
has stated that her father as well as Saukat Ali admitted about such marriage before him. As regards the photocopy of divorce certificate annexed in
the custody petition it is submitted that same was given by the father of the petitioner namely Muslim Ali and her uncle in the year 2011, otherwise he
has no personal knowledge of the same. Further, in the year 2013 on verification through RTI from the office of Marriage and Divorce Register the
respondent came to know that the petitioner got marriage with said Saukat Ali but there is no record of divorce. On verification of records it come to
the knowledge of respondent that the said divorce certificate is a forge document. The Sadar Kazi of marriage registrar has given evidence in affidavit
in FC (Civil) 545/2011 that there is no record of divorce between the parties (vide annexure B,C,D). The Hon’ble High Court has quashed the DV
Case filed by the petitioner (vide annexure-A). It has also been contended that the petitioner has all through denied her earlier marriage with Saukat
but other witnesses have admitted the same.
The learned counsel Mr. Ali for the petitioner has put forward his argument that the allegation in complaint petition has no authenticity in view of
the admission of the respondent himself about the earlier divorce, so filing of the case is nothing but a counterblast against her allegation to save his
skin.
Referring to the decision (2010) 11 SCC 749 it has been submitted that to prove an offence under section 494 the 1st marriage must be subsisting at
the time of 2nd marriage, which is not made out by the respondent in his complaint petition.
Refuting such contention, the learned counsel for the respondent Mr. A. K. Bhuyan has urged before this court that both the parties has denied the
allegation and the counter allegation raised against each other and in that context where entire matter relates to disputed facts that cannot be decided
in a petition under section 482 CrPC.
I have considered the submission of both the parties and it is highly disputed whether the petitioner entered into marriage with another person prior
to marriage with the petitioner and whether divorce was effected prior to such marriage with petitioner? It is to be noted that the petitioner has not
come up with specific case that neither she married with any other person nor there was any divorce. In that case the respondent as complainant has
to substantiate his case by way of his evidence which is essentially a subject matter of trial. As regard the acceptability of document relied by the
petitioner at this stage of filing this petition for quash proceeding it has been held by the Hon’ble Apex Court that such document/annexure cannot
be termed or read as evidence without being tested and proved. (Refer Monu SC 0946/2013). Similarly, while exercising jurisdiction under section 482
it is impermissible for the court to look into the material produced before the court, acceptability of which is essentially a matter of consideration of
trial court and the same cannot be appreciated by the High Court like a Trial Judge.
Learned counsel for respondent Mr. Bhuyan relying on the decision (1986) 3 SCC 67 J.P Sharma Vs. Vinod Kumar Jain submitted that if the
prima facie offence is made out on the basis of the allegation made in the complaint, without going into the truth or otherwise, the High Court cannot
exercise its power under section 482. The question at this stage is not whether there was any truth in the allegations made but it is whether on the
basis of allegation cognizable offence has been made out 13. The learned counsel for the respondent also referred to the decision 1990 (Supp)SCC
686 Dhanalakashmi Vs. R Parsanna Kumar and Others wherein it has been held that in a case where there is specific allegation in the complaint
disclosing the ingredients the offence taken cognizance of it is for the complainant to subsitance the allegation by evidence at a later stage. In absence
of circumstances to hold prima facie that the complaint is frivolous, when the complaint does not disclose commission of an offence there is no
justification for the High Court to interfere under section 482. In a proceedings instituted on complaint exercise of inherent power to quash the
proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set
out in the complaint do not constitute the offence of which cognizance is taken by Magistrate it is open to the High Court to quash the same in
exercise of inherent power under section 482 CrPC. It is however not necessary that there should be a meticulous analysis of the case before the trial
to find out whether the case would end in conviction or not. The complaint has to be read as a whole.
Although, as per the provisions under section 482 CrPC the High Court has inherent power to make such order as may be necessary to give effect
to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice but the expression abuse of the
process of or to secure the ends of justice do not confer unlimited jurisdiction on the High Court and same can only be secure in accordance with law
including the procedural law or otherwise. Such an inherent power in the nature of extra ordinary power has to be used sparingly for assuming the
object mentioned in the Section 482 CrPC. Further in Alpic Finance Ltd. Vs. P. Sadasvian and another Manu SC/0106/2001 it has been held that
power to quash the FIR or the complaint can be exercised where the allegation made in the same are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings. However, at this stage the High Court is
not justified in embarking upon an enquiry so as to the probability, reliability or genuineness of the allegation made therein.
Turning to the case of parties, it is discernable that complaint petition prima facie make out any allegation which if, remain rebutted would result
conviction.
The petition is accordingly dismissed.