9911796707
TMI Blog2009 (10) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.10.2004, the Court has passed further order and observed that certain documents including earlier complaint and final outcome of two complaints would be required for perusal of this Court because the allegations made in the earlier complaints and disposal of the same would be relevant in the background of one fact that the petitioner had approached this Court on earlier occasion by moving the petition under Section 482 of the Criminal Procedure Code pending investigation in the year 2002. The Court thereafter issued rule on 21.10.2004 and after considering the list of events as well as the copy of the judgment wherein petitioner came to be acquitted and other relevant circumstances that have been placed on record, the Court granted stay against further proceedings of Criminal Case No. 1903 of 1996 pending in the Court of learned Judicial Magistrate First Class, Vijapur, pending the hearing and final disposal of this petition. 4. It is in the above background of the facts, the present petition is taken up for final hearing. 5. It is the case of the petitioner that the present respondent No. 2 - original complainant had lodged complaint under Sections 406, 498-A, 504, 506(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , one or the other hand, has decided to harass the petitioner and filed false criminal complaints against the petitioner which amounts to clear abuse of process of law on the part of the complainant. The complainant has developed a habit of filing criminal cases against the petitioner with malafide intention. Though several complaints have been filed by the complainant, the incidence is one and the same and thereby, the complainant has clearly misused the process of law. 9. Before filing the present petition, the petitioner had earlier filed Cri. Misc. Application under Section 482 of Cr.P.C. for quashing the proceedings as no case was made out by the complainant against the petitioner. At that stage, the petitioner withdrew the said application. However, after recording evidence of the complainant, which clearly shows that no case was made out against the petitioner and, therefore, the petitioner has filed the present petition under Article 227 of the Constitution of India on the ground that absolutely frivolous complaint is filed against the petitioner and it is nothing but an abuse of the process of the Court. 10. Mr. Prashant Desai, learned Senior advocate appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was also rejected by this Court on 20.09.2004. 12. Mr. Desai has further submitted that the complainant had filed Hindu Marriage Petition No. 104 of 1999 for judicial separation and when the purshish was filed by the petitioner considering for judicial separation, after about 5 years, the complainant withdrew the said petition inspite of the petitioner's objection on 20.04.2004. In the said petition, application for interim maintenance was filed and it was fixed at ₹ 2,300/- per month which was paid by the petitioner. Mr. Desai has further submitted that the complainant had filed Special Civil Suit No. 402 of 2002 for maintenance under Section 13 and even Civil Misc. Application No. 35 of 2003 was filed before the learned Assistant Judge, Mehsana for custody of son Kaushal on the ground of alleged second marriage. 13. Mr. Desai further submitted that the petitioner had also filed HMP No. 113 of 2001 for divorce under Section 13 of the Hindu Marriage Act, 1955. The said petition came to be allowed by the learned 7th Additional Senior Civil Judge, Mehsana by judgment and decree dated 29.04.2006, which was challenged by the complainant by way of Regular Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has already been acquitted earlier and it is an admitted fact that since 1991, the complainant has not been staying with the petitioner. 16. In support of his submission that the allegation regarding bigamy is absolutely false and frivolous, Mr. Desai relied on the decision of the Hon'ble Supreme Court in the case of Bhaurao Shankar Lokhande and Anr. The State of Maharashtra and Anr. 1965CriLJ544 wherein it is held that the word 'solemnize' means, in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore, essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application because, despite the rejection of the earlier application, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order, the High Court proceeded to consider the subsequent application of the respondents for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. The Court took the view that the High Court was perfectly entitled to do and there was no jurisdictional infirmity in the order of the High Court. 19. Based on the factual and legal position, Mr. Desai has strongly contended that Criminal Case No. 1903 of 1996 and any order passed therein deserves to be quashed and set aside. 20. Mr. P.K. Jani, learned advocate appearing for the respondent No. 2, on the other hand, has strongly objected to any relief that may be granted in this petition and the petition deserves to be dismissed. He has raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Court in the midst of the trial, it would be absolutely against the provisions of Cr.P.C. 21. Mr. Jani has further submitted that looking to the provisions contained in Section 216 of Cr.P.C., once the charge is framed by the trial Court, it would be appropriate for the petitioner to make an application under the provisions of Section 216 of Cr.P.C. for alteration of the charge at any time before the judgment is pronounced. When such an alternative efficacious statutory remedy is provided under Section 216 of Cr.P.C. as available to the petitioner, the question of invoking the jurisdiction of this Court under Section 482 would not arise. 22. Mr. Jani has further submitted that even on merits, the present petition deserves to be dismissed. The circumstances which led to the complaint filed by the complainant are that on 20.06.1995, the complainant saw one Ranjanben - accused No. 2 at the house of the petitioner and she was introduced as wife of the petitioner by the petitioner himself. On 20.09.1995, the complainant, therefore, filed a complaint in the Court of learned JMFC, Vijapur for the offences punishable under Sections 406, 498-A, 504, 506(2) and 114 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the order below Exh.109 decided on 23.03.2004 by way of filing a revision application. The petitioner availing the extraordinary remedy under Section 482 is not maintainable. He has, therefore, submitted that the present petition deserves to be dismissed. 23. In support of his submissions, Mr. Jani relied on the decision of the Hon'ble Supreme Court in the case of Amar Chand Agarwala v. Shanti Bose and Anr. 1973CriLJ577 wherein it is held that where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done was the examination of two prosecution and one Court witnesses and the High Court quashed the charge and the entire proceedings on the grounds that the complainant suppressed material facts and that the evidence on record did not establish the alleged offence, the order was liable to be set aside. The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on and to come to its logical conclusion, one way or the other, and decline to interfere with those proceedings. The questions whether there was suppression and whether the evidence established the alleged offence were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indravadan Ramniklal Mehta wherein it is held that the inherent powers of the High Court are to be used sparingly and only when there is no other provision in the Code for redressal of the grievance of the aggrieved person. 28. Mr. Jani further relied on the decision of this Court in the case of N.R. Desai v. Y.N. Parekh and Ors. wherein the petitioner filed an application for dropping the proceedings against him. Learned Metropolitan Magistrate rejected the application of the petitioner. Though there is an alternative remedy to file revision application before this Court, the petitioner has directly approached to the High Court and it is held that the petitioner has not given out any reason why he has directly approached this Court when revisional power is available in the case then Section 482 of Cr.P.C., may not have any applicability. The petitioner has efficacious alternative remedy available to file revision application and hence, the petition was dismissed. 29. Mr. Jani has further relied on the decision of the Hon'ble Supreme Court in the case of Mohinder Singh v. Gulwant Singh wherein it is held that the High Court appears to have exceeded the scope of enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders passed therein deserve to be quashed and set aside. While arriving at this conclusion, the Court is mindful of the fact that this is the second and successive petition for quashing and normally, the Court should not entertain and/or allow such petition. However, the facts are so glaring that the Court has to come to this conclusion to prevent the abuse of the process of law and also to secure the ends of justice. 34. The respondent No. 2 wife is in the habit of filing complaints after complaints. Initially, Criminal Case No. 850 of 1991 was registered against the petitioner pursuant to the complaint filed by the respondent No. 2 under Section 323, 504 506(2) of IPC. Though the petitioner was convicted and a sentence of three months was awarded, on an appeal being Criminal Appeal No. 55 of 2000 filed before the Sessions Court, Mehsana, the petitioner was acquitted and the order of conviction was quashed and set aside. The respondent No. 2 wife had thereafter filed another complaint under Section 498-A, 506 506(2) of IPC and also under Section 4 of the Dowry Act which was registered as Criminal Case No. 1310 of 1993. The petitioner was acquitted in the said criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court while admitting the present petition and granting stay against further proceedings in Criminal Case No. 1903 of 1996, has taken note of this aspect of the matter. The case of bigamy is totally false and other allegations were levelled in earlier complaints also from which the petitioner was acquitted. Hence, there is no justification in continuing the complaint under challenge against the petitioner. The challenge to the maintainability of the petition is also not sustainable in view of the decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh and Ors. (Supra). The Hon'ble Supreme Court has clearly held in that case that the facts and circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application because, despite the rejection of the earlier application, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. In the present case also, the case was registered in 1996 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
