Karnataka High Court
Gopi R. Mallya vs Smt. Pushpa on 11 June, 1997
Equivalent citations: 1998(1)ALT(CRI)28, ILR1998KAR474, 1997(4)KARLJ216
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. This petition is filed u/S. 482, Cr. P.C. questioning the order passed by the learned 7th Addl. C.M.M., Bangalore, taking cognizance of the offence and directing to issue process to the petitioner herein.
2. The brief facts of the case are : the petitioner is the husband of respondent and their marriage was solemnised in the year 1980. They lived happily for about 13 years. To his utter dismay on 26-3-93 when the petitioner returned home in the afternoon, he found his wife committing adultery with a stranger. Thereafter, the relationship of husband and wife become strained and they never lived as husband and wife. On 4-1-93 the husband filed a petition for divorce in M.C. No. 716/93 before the Addl. Prl. Family Court, Bangalore. In that petn. he has made a specific allegation in regard to adultery committed by the wife/respondent on that particular day. When the matter was pending before the Family Court, on 19-1-94 the respondent lodged a complaint against the petitioner for the offence under S. 500, IPC on the ground that he has made false and reckless allegations which defamed her in the eye of the public, etc. The learned Magistrate had taken cognizance of the offence, recorded the sworn statement of the complainant therein and directed to issue process. The petitioner appeared before Court and before the plea was recorded, he filed this petition to quash the entire proceedings.
3. Heard.
4. The learned Counsel for the petitioner at the very outset submitted that the complaint was not maintainable as the issue before both the Family Court as well as Criminal Court is one and the same. He also submitted, when the matrimonial Court is seized of the matter this complaint is not maintainable. He also submitted that the Magistrate has committed an error in taking cognizance of the offence. In support of his argument, he also placed reliance on a decision reported in 1960 Cri LR 7, Pars Ram v. Jalaldin, wherein the Punjab High Court has held that a party should not be encouraged to resort to the Criminal Courts in cases in which the point at issue between them is one which can more appropriately be decided by a Civil Court.
5. As stated earlier, the question involved is as to whether the respondent has committed adultery with a stranger. This is the only ground on which the matrimonial case for divorce came to be filed by the husband. If such allegations made in the Court, are to be treated as defamation and the maker of that statement has committed an offence, as rightly pointed out by the learned Counsel for the petitioner, neither of the spouses can approach the Court for divorce on that ground. Needless to say that these allegations are very essential for the petitioner, to succeed in the cause of divorce which is one of the grounds available for divorce to establish in Court. If he fails to establish that fact, it is for the Court to take appropriate action or it may be open to the petitioner/complainant to approach the Court on the basis of the finding of the Court. Therefore, since the matter is also pending before the Matrimonial Court to decide whether she has committed adultery or not and whether the petitioner is entitled for divorce or not, it is not open to the complainant to rush to the Criminal Court to lodge a complaint. In similar circumstances, in a decision , Trilok Singh v. Satyadeo Tripathi, their Lordships of the Supreme Court have held :
"Dispute raised was purely of civil nature and criminal proceedings initiated was an abuse of the process of the Court and deserved to be quashed."
In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, it was argued before the Apex Court that a case of breach of trust is both a civil wrong and a criminal offence, and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant's allegation, no objection could be taken at the preliminary stage. While answering this argument, their Lordships have held that it is for the Court to take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose. It is further held that no useful purpose is likely to be served by launching criminal proceedings to continue and the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. Therefore, from the above discussion, it is abundantly clear that no cause of action arose for the complainant to present a complaint before the Court.
6. The learned Magistrate has come to the conclusion that the defamatory statement or otherwise contained in a plaint petition falls within S. 499 and is not absolute. On the basis of it he came to the conclusion that there is a prima facie case to proceed against the petitioner. In this case, the statement made in divorce petition at this stage, cannot be said to be irrelevant. The entire case of the petitioner for divorce is based on this statement. It is no doubt true that procedure of the Court should not be imputedly used as the means of indulging in feelings of personal spite. There is no absolute privilege for a defamatory statement which is made in bad faith in a petition filed before the Court. It is well settled law that a party to a judicial proceedings enjoy only a qualified privilege. The civil petition came to be filed much earlier than the criminal complaint. If the issue in the civil suit is different from the point at issue in the criminal proceedings, it cannot be said that the criminal proceedings had been launched to prejudice the trial Court. But in this case, the issue in both the cases is one and the same. Further cause of action for the respondent arises only if the Court comes to the conclusion against the petitioner and not otherwise.
7. In the result, therefore, I proceed to pass the following :
ORDER The petition is allowed. The entire proceedings pending in C.C. No. 16291/94 on the file of the VII Addl. Chief Metropolitan Magistrate, Bangalore, are quashed and the complaint is dismissed.
8. Petition allowed.