Punjab-Haryana High Court
Dipika Lal vs Vipin Kumar Gupta on 15 April, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Misc.Petition No.14598-M of 2007
Date of Decision: 15.04.2009
Dipika Lal.
....... Petitioner through Shri
Vinod S. Bhardwaj,Advocate.
Versus
Vipin Kumar Gupta.
....... Respondent in person.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This is a petition under Section 482 of the Code of Criminal Procedure,1973 (for short, `the Cr.P.C.') for quashing of order of summoning dated 27.9.2006 (Annexure P1) and criminal complaint dated 23.1.2006 (Annexure P14) and all other consequential proceedings arising therefrom.
The petitioner was married to the respondent on 14.2.1997 which marriage ended up on the rocks generating tremendous ill-will in the process. Three children were born to the couple during the subsistence of the marriage, i.e., one daughter and other a pair of twins out of whom one survived, as a result of which they were left with two children. The elder daughter, namely, Damini and the son,namely, Timmi, were born on Crl.Misc.Petition No.14598-M of 2007 -2- ....
12.11.1997 and 30.3.1999, respectively. The children, since their birth, have been staying with the petitioner at her parental house. The petitioner is a practising Advocate in Delhi, while the respondent was a member of Delhi Judicial Service from where his services were terminated.
With a bitter history of discord, a petition under Section 13 of the Hindu Marriage Act,1955 (hereinafter described as `the Act') was filed by the petitioner seeking dissolution of marriage on the ground of cruelty. The same was accepted after contest by the respondent on 3.4.2006.
In those proceedings began a chapter of shameful allegations levelled by the parties against each other, which necessarily have to be extracted in order to appreciate the venomous hatred each of them has for the other.
The respondent,while filing his reply to the petition under Section 13 of the Act, made the following allegations:-
"ii) ............ The marriage was duly consummated. However, while doing sexual intercourse with the petitioner, the respondent discovered that the hymen of the petitioner was not intact and had already been ruptured, as it could admit penetration so easily. Unmindful of what she was going to say, the petitioner said `I never like contraceptives'. This fact alone is suggestive of the reality that the petitioner was not virgin at the time of her marriage with the respondent. Needless to mention that ever since then, the respondent felt deprived of Crl.Misc.Petition No.14598-M of 2007 -3- ....
natural sexual bliss/ gratification, while doing sexual intercourse with the petitioner........;
viii).......... She divulged that the newly born female child was not his daughter and confessed her having illicit relations with an Advocate namely Gautam, whom she stated to be a junior of one Shri Sud, Advocate. She said that the real/ actual father of that female child was Mr. Gautam, who she loved even prior to her marriage and with whom she continued to meet and cohabit even after marriage with the respondent............; ............. She also claimed and admitted her incestuous/ illicit relations with so many other persons mostly advocates practising at District Courts, Faridabad and Delhi High Court........;
......... During this period, she herself admitted to have fallen in love with certain advocates (name purposely withheld, as the petitioner may win over them and tamper with relevant evidence). She further voluntarily admitted her illicit physical relations with these advocates.........;
....... They all assured that the petitioner would not have any relation with any of above persons in future, with whom she had admitted her illicit relations............;
xv) That the respondent was and still continued to be a teetotaler and non smoker. However, the petitioner is a habitual Crl.Misc.Petition No.14598-M of 2007 -4- ....
drunkard. She used to consume liquor, whenever she stayed with the respondent..........;
xx) That the petitioner was fond of reading pornographic/ obscene literature containing nude pictures, nasty postures and indecent languages, and after being aroused, she used to force/ compel the respondent to have sexual intercourse with her for 4 to 5 times per night by repeatedly awakening the respondent from his sleep;
xxi) That the petitioner herself once disclosed/ confided to the respondent that she was a lesbian. She stated that during her law graduation at Agra Law College, she developed this bad habit. She further claimed herself to be a voluptuous lady and stated that it was practically impossible for her to live without her lesbian and shady relations with her real Mausi (name not disclosed as she was three aunts) and Mrs. Urmil Katyal, R/O Delhi Administration Flats, Timarpur, Delhi. She disclosed that during isolated moments, she used to have fun and frolic with above persons by caressing and fondling with private parts of her counter parts. She also stated that she used to go to clubs i.e. Army Officers Club, Dhaula Kaun and Army Officers Club,Noida. She stated that there was nothing wrong in modern era to indulge in kissing or manual satisfaction. The respondent himself noticed that the petitioner used to sleep Crl.Misc.Petition No.14598-M of 2007 -5- ....
with various South Indian nurses in her private room/ V.I.P. Suite in Khosla Hospital during her post delivery stay. This shows that the petitioner is guilty of adultery and fornication. She was in the habit of admiring handsome persons, both known and unknown by calling them `Sexy'. This caused mental disturbance to the respondent;"
This provoked, rather than necessitated filing of replication in which the petitioner levelled the following allegations against the respondent:-
"The respondent's own character is so drastically low and unimaginable that as confessed by the respondent himself, he had an intercourse with his own sister when she was only 14 years old and was alone in the Dhariwal House. Fearing disclosure of the same, as confessed by him, he burnt her to death, declaring it an accident by bursting of the stove. The filthiest act and the guilt is still haunting the respondent's mind and he sees every female with that same mental make up, as confessed by the respondent himself to the petitioner. With this mental make up the respondent wants to take revenge from every female, irrespective of her age or relation. Here also he wants to mentally torture the petitioner and his own baby girl."
The petitioner also repeated the aforementioned allegations Crl.Misc.Petition No.14598-M of 2007 -6- ....
against the respondent in her examination-in-chief while appearing as a witness before the Court in the divorce proceedings. The relevant extract is reproduced below:-
"Respondent told me once that he was having illicit relations with own sister and killed her by stove burning. Thereafter he also told me that I was feeling guilty and that is why I hate women and I want to take revenge from every lady on the earth. I and my children cannot be with the respondent and we apprehend danger to our life and he can do anything untoward with his daughter."
Thereafter, on 23.1.2006, the respondent filed complaint under Sections 500 and 504 of the Indian Penal Code,1860 (Annexure P14), the quashing of which has been sought in the instant petition, by alleging that the averments made by the petitioner in her replication and in her testimony in support of the said averments, have defamed him. Paragraphs 6, 7,8 and 16 of the complaint, which primarily spell out the grievance of the respondent, are reproduced below:-
"6. That the accused abovenamed filed a divorce petition U/S 13 of Hindu Marriage Act vide H.M.A.Case No.91 of 15.5.2000/ 6.4.2004 in the Court of Ld.District Judge, Faridabad. During the course of evidence, the accused abovenamed entered the witness box as PW2 and testified in the court of Shri R.K.Khangwal, the then Ld. A.D.J., Faridabad Crl.Misc.Petition No.14598-M of 2007 -7- ....
on 11.10.2003 and 24.1.2004. During her examination-in-chief recorded on 24.1.2004, the accused abovenamed deposed as under:-
`Respondent told me one that he was having illicit relations with his own sister and killed herby stove burning. Thereafter, he also told me and I was feeling guilty and that is why I hate women and I want to take revenge from every lady on the earth.'
7. That when the said evidence was being recorded, one Shri P.K.Mittal, Advocate (i.e. counsel for the respondent in the said) and one Shri Rajinder @ Binta S/o Sh.Goverdhan Lal R/o 5-D-76, NIT, Faridabad (i.e. friend of the complainant herein) were also present in the court room, who heard the said utterances made by the accused. The Ld. Presiding Officer as well as the complainant and his counsel took exception to the said allegation on the ground that the said allegation was being levelled by the accused herein for the very first time and was beyond the pleadings.
8. That the accused abovenamed had lodged innumerable complaints against the complainant herein with various police authorities, Delhi Bar Association, Hon'ble High Court of Delhi, Hon'ble High Court of Delhi, Hon'ble High Court Punjab & Haryana at Chandigarh and Bar Council of Crl.Misc.Petition No.14598-M of 2007 -8- ....
Delhi. She also filed divorce petition, maintenance petition and a criminal revision but in none of these proceedings/ litigation, she ever levelled such allegation. It would be pertinent and congruous to mention here that when the complainant herein(being respondent in the divorce petition) filed his detailed written statement dated 9.1.2002 running into 84 pages and made certain allegations against the petitioner (i.e. accused herein), the accused herein got awfully offended, enraged and infuriated and she went on to hurl totally false, fabricated, mischievous, derogator, disparaging, scurrilous, uncharitable and concocted allegations against the complainant herein in her examination-in-chief recorded on 24.1.2006 in the court of Shri R.K.Khangwal, the then Ld.A.D.J., Faridabad. It would also be in the fitness of things to point out here that even Hon'ble Presiding officer did not relish the aforesaid allegations and cautioned the accused herein not to transgress the limits of decency and morality. The accusations/ allegations levelled by the accused herein on 24.1.04 in the said divorce proceedings were calculated to harm the long standing reputation of the complainant herein and to tarnish his image in the estimation of his friends,relatives and known people including that of the Ld. Crl.Misc.Petition No.14598-M of 2007 -9- ....
Presiding Officer as well as Court staff, who all had the occasion to hear such false allegations of unchastely levelled by the accused against the complainant. Further more, the said allegations besides being false and motivated are defamatory per se. The same amount to character assassination and mudslinging and were sufficient to provoke the breach of peace in the court room itself but for the restraint, patience and perseverance exercised by the complainant and his friend and counsel.
16. That the imputations made by the accused in her sworn statement dated 24.1.2004 in divorce petition in the court of Shri R.K.Khangawal, the then Ld. A.D.J., Faridabad are actuated with malice and ill-will, which are nothing but a counter-blast to the contents of written statement filed by the complainant herein in the divorce petition.
17. That the complainant caused a legal notice to be sent to the accused through U.P.C. Through his counsel Shri Anil Kumar Juneja, Advocate, Delhi High Court, which was duly served on the accused by virtue of presumption attached to Section 27 of the General Clauses Act. Still, the accused did not comply with the directions contained in the said legal notice. Hence,this complaint case. The case of accused is not covered under any of the exceptions given U/S 499 IPC..
Crl.Misc.Petition No.14598-M of 2007 -10- ....
In the conspectus of circumstances delineated hereinabove, it is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to summon,m try and penalized the accused for the offence of defamation punishable U/s 500/504 IPC in accordance with law, in the interest of justice." The Additional Chief Judicial Magistrate, Faridabad (hereinafter described as `the trial Magistrate') to whom the complaint was assigned for disposal, after recording of the preliminary evidence adduced by the respondent, summoned the petitioner vide order dated 27.9.2006. The said order is reproduced hereunder:-
"Present: Complainant in person.
Arguments heard on the aspect of summoning of the accused. In preliminary evidence, the complainant appeared himself as CW1 and have also examined Ravinder Kumar PW2 and Anil Kumar PW3. In his examination, complainant has reiterated the facts stated in the complaint. The said version has been duly corroborated by CW2 and CW3. So after going through the evidence on record, I feel satisfied that a prima facie case is made out against the accused U/S 500 and 504 IPC. She be summoned to face trial under said sections for 24.12.2006."
Seeking quashing of the complaint and the summoning order, learned counsel for the petitioner has contended that the averments which the petitioner had made in the replication and the testimony that she had Crl.Misc.Petition No.14598-M of 2007 -11- ....
given in support thereof during the course of proceedings under Section 13 of the act, were made under a bona fide belief and in good faith and, therefore, the same came within the ninth exception of Section 499 of the I.P.C. He further contended that the respondent too levelled grave allegations against the petitioner and that she stood by the averments made in the replication and her statement because it was what was told to her by the respondent. Learned counsel for the petitioner argued that since ninth exception to Section 499 of the I.P.C. protected the petitioner, the complaint and the summoning order deserve to be quashed. He further argued that the testimony of the petitioner in the divorce petition was subjected to lengthy cross-examination by the respondent himself, but he could not shatter the same and further his defence was struck off because he had failed to pay the maintenance as a result of which he had not produced any evidence in support of his case or to belie the averments made by the petitioner in her replication with which he is aggrieved prompting him to file the complaint, Annexure P14.
On the other hand, the respondent contended that the provisions of Section 482 of the Cr.P.C. do not contemplate the quashing of the complaint when it throws up questions which have to be tested on the basis of evidence and that no complaint and summoning order can be quashed at the threshold. To support his contention, he placed reliance on the following judgments:-
1. State of Maharashtra Versus Ishwar Piraji Kalpatri and Crl.Misc.Petition No.14598-M of 2007 -12- ....
others, (1996) 1 S.C.C. 542;
2. Shatrughna Prasad Sinha Versus Rajbhau Surajmal Rathi and others, (1996) 6 S.C.C. 263;
3. Mary Angel and others Versus State of T.N., (1999) 5 S.C.C. 209;
4. Mahavir Prashad Gupta and another Versus State of National Capital Territory of Delhi and others, 2000 Crl.L.J. 4665 (S.C.);
5. State of Delhi Versus Gyan Devi and others, 2001 Crl.L.J. 124 (S.C.);
6. M.N.Damani Versus S.K.Sinha & Anr., 2002(1) C.R.J. 428 (S.C.);
7. State of Madhya Pradesh Versus Awadh Kishore Gupta and Ors., 2003(3) C.C. Cases (S.C.) 196;
8. State of Andhra Pradesh Versus Goloconda Linga Swamy & Anr., 2004(2) J.C.C. 1155 (S.C.);
9. Central Bureau of Investigation Versus Ravi Shankar Srivastava, 2006 Crl.L.J. 4050 (S.C.);
10. Minu Kumari and another Versus State of Bihar and others, (2006) 4 S.C.C. 359;
11. Maj.Gen.V.N.Kapur Versus M/S Proco Systems (P) Ltd., 1991 J.C.C. 543 (Delhi);
12.P.B.Nawas Khan Versus Directorate of Revenue Crl.Misc.Petition No.14598-M of 2007 -13- ....
Intelligence and another, 2001 Crl.L.J. 798 (Karnataka);
13. Rear Admiral (Retd.) Balakrishnan Ravi Mannon Versus Ms.Vandana Jhingan & Ors., 2002(1) JCC 608 (Delhi);
14. Ashwani Kumar Versus State of Punjab, 2002(3) R.C.R. (Criminal) 451 (P&H);
15. Gautam Adhikari & Anr. Versus Jagir Singh, I (2002) Current Criminal Reports 218 (Delhi);
16. Vijai and others Versus State of U.P. and another, 2004 Crl.L.J. 2963 (Allahabad);
17. Mammen Mathew Versus Kuniel Kumar and another, 2004 Crl.L.J. 852 (Bombay);
18. Shri Pankaj Narang Versus State & Anr., DCLR 2006(1) Delhi 644;
19. Sh.Syed Ashraf Versus State (Through CBI), 2006(1) C.C. Cases (HC) 200 (Delhi);
20. Constellation Enterprises Pvt. Ltd. & Anr. Versus P.E.C. Limited, 2006(1) C.C.Cases (HC) 315 (Delhi);
21. Om Parkash Mehta & Ors. Versus State & Anr., 2006(1) C.C.Cases (H.C.) 12 (Delhi);
22. Vir Sanghvi Versus State of Haryana, II (2006) C.C.R. 211 (P&H).
In view of the law laid down in the above mentioned cases, the respondent prayed that the instant petition be dismissed.
Crl.Misc.Petition No.14598-M of 2007 -14- ....
I have thoughtfully considered the rival contentions and have gone through the whole record as well as the above mentioned case law referred by the respondent.
It is pertinent to mention here that during the course of proceedings, intensive efforts were made for rehabilitation and rapprochement between the parties,but to no avail. The respondent was adamant in prosecuting the petitioner. Finding that the rapprochement was not possible, I embark upon to answer the present petition.
Section 482 of the Cr.P.C., which is under consideration, is reproduced below:-
"482. Saving of inherent power of High Court.- Nothing in this Code 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." (underlining is mine) In Madhu Limaye Versus State of Maharashtra, AIR 1978 S.C. 47, their Lordships considered the question as to whether the High Court can exercise its inherent power under Section 482 of the Cr.P.C. to quash an interlocutory order. The provisions of Section 397(2) of the Cr.P.C. which barred a revision against an interlocutory order, were also considered. It was held that the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other Crl.Misc.Petition No.14598-M of 2007 -15- ....
proceeding is to bring about expeditious disposal of cases finally. In the circumstances of the case before them, the following principles were laid down by their Lordships for exercise of the inherent power of the High Court:-
1. That the power is not to be resorted to if there is a specific provisions in the Code for the redress of the grievance of the aggrieved party;
2. that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
3. that it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
In Madhavrao Jiwaji Rao Scindia and another Versus Sambhajirao Chandrojirao Angre and others etc., AIR 1988 S.C. 709, their Lordships in paragraph 8 of the judgment observed as under:-
"8.Mr.Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the Crl.Misc.Petition No.14598-M of 2007 -16- ....
respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals, Dr.Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter, we are inclined to hold that the criminal case should not be continued."
The Apex Court in State of Haryana Versus Bhajan Lal, 1992 Suppl.(1) S.C.C. 336, while explaining the powers of the High Court under Section 482 of the Cr.P.C., laid down certain parameters, principles and guidelines, which are as follows:-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. Crl.Misc.Petition No.14598-M of 2007 -17- ....
1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just Crl.Misc.Petition No.14598-M of 2007 -18- ....
conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
Crl.Misc.Petition No.14598-M of 2007 -19- ....
In M.N.Damani Versus S.K.Sinha & Anr (supra), on which reliance was placed by the respondent, their Lordships of the Apex Court, while taking note of the judgment in Madhavrao Jiwaji Rao Schindia's case (supra), observed as under:-
"Thus, the said judgment was on the facts of that case,having regard to various factors including the nature of offences, relationship between the parties, the trust deed and correspondence following the creation of tenancy. The High Court has read para 7 in isolation. If para 7 is read carefully two aspects are to be satisfied : (1) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (2) whether it is expedient and in the interest of justice to permit a prosecution to continue........" (emphasis supplied) In B.S.Joshi and others Versus State of Haryana and another, 2003(2) R.C.R. (Crl.) 888 (S.C.), their Lordships of the Supreme Court carved out an exception for the purpose of securing the ends of justice in the facts and circumstances of a criminal case having its origin in a matrimonial dispute which has been compromised. It was observed as under
in paragraph 12 of the majority judgment:-
"It is in these circumstances that while exercising its powers under Section 482 of the Code, the Court has in given cases quashed the criminal proceedings where it felt that the same Crl.Misc.Petition No.14598-M of 2007 -20- ....
was required to prevent the abuse of the process of any Court or to otherwise secure the ends of justice. These decisions would necessarily involve an appraisal of the facts and circumstances of each case and this Court cannot while interpreting the statutory provisions take upon itself the onerous responsibility of extending the powers of compounding of offences to cases other than those listed in Section 320(1) and (2) of the Code. While it is true that it should be the endeavour of every one to bring into operation the conciliation process with a view to pursue consensual justice, yet for achieving this object the scope of Section 320 of the Code will have to be enlarged. Such an enlargement though desirable being in the domain of legislative enactment would fall out of the purview of statutory interpretation at the level of the High Court. This Court in this case does not have any material available before it to assess the utility of widening the scope of compromise in the criminal justice system as the possibility of the same being misused by the persons having at their command greater money and muscle power cannot be ruled out. It is because of this that we feel obliged not to extend in general terms the ambit of interest of justice as indiscriminate and uncontrolled reliance thereon may end in the abuse of the process of law which is one of the goals, which the enactor of Section 482 of the Code, seek to achieve.
Crl.Misc.Petition No.14598-M of 2007 -21- ....
The balance in each case will have to be struck to ensure that complete justice is done between the parties and for achieving this, each individual case will have to be scrutinized to find out whether it attracts any of the provisions incorporated in Section 482 of the Code to impel the Court to grant relief to a party either in the exercise of the aforesaid power or under Article 226 of the Constitution. Therefore, we would not like to launch an exercise for determining the scope of judicial intervention as provided under Section 482 of the Code in view of the terms "abuse of the process of law" and "in the interest of justice", as it would not be proper for us to provide a straightjacket formula for channelizing judicial responses to the facts and the circumstances of a given case. It would be more appropriate that the interpretation of these terms is left open to the response of an Hon'ble Judge to the facts and circumstances of a given case, as and when this Court is called upon to intervene in any matter for preventing the abuse of the process of law and advancing the ends of justice."
As noticed above, in B.S.Joshi's case (supra), the Apex Court clearly enunciated the principle that an F.I.R. can be quashed even where the offence was non-compoundable in cases where the parties have arrived at a compromise and settled all their disputes notwithstanding the bar under Section 320 of the Cr.P.C.
Crl.Misc.Petition No.14598-M of 2007 -22- ....
In State through Special Cell, New Delhi Vs. Navjot Sandhu alias Afshan Guru and others, 2003(2) R.C.R. (Crl.) 860(SC), while affirming the view expressed in State of Karnataka Versus L.Muniswamy and others, AIR 1977 S.C. 1489; Madhu Limaye's case (supra) and Bhajan Lal's case (supra), their Lordships of the Supreme Court observed as under:-
"It is settled that the High Court can exercise its powers of judicial review in criminal mattes. In State of Haryana v. Bhajan Lal this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any Crl.Misc.Petition No.14598-M of 2007 -23- ....
offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administrative of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to."
A Full Bench of this Court in Kulwinder Singh Versus State of Punjab, 21007(3) Law Herald (P&H) (FB) 2225, considered various judgments including Madhu Limaya Versus State of Maharashtra(supra), Bhajan Lal's case (supra) and B.S.Joshi's (supra) held as under:-
"The power under Section 482 of the Cr.P.C. is to be exercised Ex-Debitia Justitia to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para- meters to enable a High Court to invoke or exercise its inherent Crl.Misc.Petition No.14598-M of 2007 -24- ....
powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery."
In view of the law discussed hereinabove, it is my onerous duty to examine the controversy involved herein in the backdrop of the scandalous imputations that have emerged from both the petitioner and the respoindent.
It is to be noticed that both the petitioner and the respondent are well educated people belonging to respectable strata of society. The bitterness of marital discord has seemingly made them cross the norms of decency and brought out such vile allegations which has blurred the distinction between the vilifier and vilified.
Crl.Misc.Petition No.14598-M of 2007 -25- ....
If the averments which have been made by the respondent while replying to the petition under Section 13 of the Act preferred by the petitioner are to be seen, then one can only feel that the consequent allegations made by the petitioner were apparently a resultant provocation and an attempt to settle scores with the respondent. The allegations that have been made, defy not only human decency, but also reflect that the parties have abandoned their educational mores in their attempt to hit out at each other.
It is to be seen that there are two children born out of the wedlock, who are now fairly grown up to understand the realities of life. It is also to be noticed that the marriage has been dissolved by way of divorce.
On the one hand is the husband recklessly levelling allegations questioning the chastity of his wife even while he went to father the children from her and litigating for the custody of these allegedly ill-gotten children and on the other hand is the wife, who has chosen to level a most horrific imputation against her husband - the kind of allegations reveals that both the parties are now bereft of any sane reaction towards each other.
The Court is also to see that if the allegation as set out in the complaint is to be accepted on its face value, then also, it would be a communication between the husband and the wife made in the confidential confines of a marriage even though a rocky one. In these circumstances when only two individuals are privy to the goings on then the question that looms up is "whether at all such allegation can be proved?" In the opinion Crl.Misc.Petition No.14598-M of 2007 -26- ....
of this Court, such a conclusive answer from which a conviction may result, may prove elusive and hence, the continuance of proceedings would be a mere futility.
Moreover, it is a case where the continuance of the proceedings inter se between the parties is likely to increase the friction amongst them and is likely to create more bitterness, the spill over of which may impact the young children, who, sooner or later, are to discover the gory and gruesome `relations' which are responsible to bring them in this world. This Court is further of the opinion that this is a case where the power under Section 482 of the Cr.P.C. vested in it, has to be used to secure the ends of justice so that it comes down as a sledge hammer on the bitter vicious and vile feud amongst two individuals, who were once husband and wife.
Accordingly, this petition is accepted, the impugned complaint, the summoning order and all consequent proceedings are quashed in the interest of justice alone.
April 15,2009 ( Mahesh Grover ) "SCM" Judge