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1986 DIGILAW 343 (DEL)

GULAB PRIT v. SARDAR TIRATH SINGH

1986-10-21

JAGDISH CHANDRA

body1986
Jagdish Chandra, J. ( 1 ) THE petitioners have brought this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) for the quashing of the order dated 10-101985 passed by Shris. K. Kaushik, Metropolitan Magistrate, New Delhi whereby the petitioners were summoned. to face the trial for offences under Sections 418/420/34 Indian Penal Code as also for the quashing of the orders subsequent thereto and in particular order dated 5-5-1986. ( 2 ) THE complaint was filed by the respondent Tirath Singh against the petitioners on the allegations that the petitioners had, in furtherance of their common intention, cheated him by dishonestly concealing the age of Smt. Gulab Preet @ Preet Kaur (petitioner No. 1) and thereby fraudulently induced him to accept the marriage proposal for his son and as a result of which he had to suffer a loss of about Rs 75. 000. 00 and odd. ( 3 ) ACCORDING to the allegations of the complainant a matrimonial advertisement was given in the Daily Tribune published from Chandigarh by the complainant initing matrimonial proposal for his son Navdeep Singh and in this matrimonial advertisement the complainant invited an offer for the matrimonial alliance of his son for a girl with a maximum age of 20 years. It is further alleged that the age of theirl is alleged to have been given to the petitioner as 10th March 1961 whereas subsequently after her marriage it turned out to be 10th March 1957 with a gap of four years which gave rise to the aforesaid complaint. ( 4 ) THE learned magistrate after going through the pre-summoning evidence and the averments in the complaint came to the conclusion that there was a prima facie case against all the accused and consequently he passed the order dated 10th October, 1985 summoning all of them to face trial. Subsequently in pursuance to the aforesaid summoning order two further orders were passed on 10-10-1985 and 5-5-1986 for effecting service upon them. Vide order dated 5-5-1986 as one of the accused persons remained unserved, bailable warrants were ordered to be issued against her. All these three orders are now sought to be quashed by invoking the inherent powers of this Court under Section 482 of the Code. Vide order dated 5-5-1986 as one of the accused persons remained unserved, bailable warrants were ordered to be issued against her. All these three orders are now sought to be quashed by invoking the inherent powers of this Court under Section 482 of the Code. ( 5 ) IT was contended by the learned counsel for the petitioners that no prima facie case existed against the petitioners and further that on account of various litigations between the parties the present complaint wa only an instrument of harassment against the petitioners which should not be allowed to continue against them. It is also contended on their behalf that as the matrimonial litigation between the husband Navdeep Singh and his wife Smt. Gulab Preet seeking the anullment of the marriage by a decree of nullity on the ground that the husband s consent to the marriage was obtained by playing fraud upon him pertaining to the age of the girl, ended in the dismissal of that petition by the order dated 8-10-1986 of Shri R. C. Jain, Addl. Sessions Judge, Delhi disbelieving the allegation of any fraudulent mis-representation regarding age, the complaint should be quashed together with the subsequent proceedings therein and the impugned orders passed therein. ( 6 ) THE learned counsel for the petitioners has tried to convince the Court regarding the falsity of the allegation of cheating levelled in the complaint by the falher-in-law of the girl but the same cannot be gone into by this Court under Section 482 of the Code Prima facie case does appear from the averments made in the complaint which stands supported by the impugned order of summoning passed by the learned magistrate The limit of power of the Court under Section 482 of the Code has been settled by the Supreme Court in JP Sharma v. Vinodkumar Jain and Others, (1986)3 Supreme Court Cases 67 and the relevant observations therefrom are set out below:- "the High Court erred in quashing the criminal proceeding under Section 482 Cr P C. on an erroneous basis when on prima facie being satisfied the Metropolitan Magistrate had taken cognizance of the alleged offences. The queslion at this stage, is not whether there was any truth in the allegations made but it is whether on the basis of the allegations, a cognizable offence or offences bad been alleged to have been committed. The queslion at this stage, is not whether there was any truth in the allegations made but it is whether on the basis of the allegations, a cognizable offence or offences bad been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise on the allegation is- not a ground on the basis of which the complaint can be quashed. Taking all the allegations in the complaint to be true, without adding or subtracting anything, at this stage, it can be said that a prima facie case for trial had been made out That is the limit of the power to be exercised by the High Court under Section 482 Cr. P C. The High Court in the instant case exceeded that jurisdiction. "another Supreme Court authority upon this point is reported as Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others, AIR 1983 Supreme Court 67 which has laid down as follows :- "it is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code "the learned counsel for the respondent has also invited the attention of the Court to another Supreme Court authority reported as Khacheru Singh v. Slate of U. P and another, AIR 1982 Supreme Court 784 (2) which is a very short judgment and the relevant portion thereof is reproduced below :- "we do not see any justification, though we are not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge. Meerut in Criminal Revision No 83 of 1979, which was affirmed by the High Court of Allahabad by its order dated 7-5-1980. All that the learned Magistrate had done was to issue a summons to respondent No. 2 -Satyavir Singh. If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the- case may be. All that the learned Magistrate had done was to issue a summons to respondent No. 2 -Satyavir Singh. If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the- case may be. But it is difficult to appreciate why the order issuing "summons" to the accused should be quashed. We,. therefore, set aside the orders passed by the Session Court and the High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2,1979 and remit the matter to the trial court for disposal in accordance with. law. "even under Section 245 (2) of the Code pertaining to the procedure in respect of trial of warrant cases instituted otherwise than on a police report a Magistrate is entitled to discharge the accused at any stage of the case prior to the recording of evidence referred to in Section 244 of the Code if, for reasons recorded by him, he considers the charge to be groundless. In the face of these authorities (1986) 3 S. C. C. 67 (supra) and AIR 1983 S. C. 67 (Supra) the High Court is not entitled to quash the proceedings under Section 482 of the Code as it is desired by the learned counsel for the petitioners that the High Court should consider the finding of fact given by the matrimonial court in respect of the alleged chearing pertaining to the age of the girl but this fact can be considered by the learned magistrate under Section 245 (2) of the Code. ( 7 ) LA view of the aforesaid discussion while observing that the petitioners may try their luck before the learned magistrate by moving an appropriate application under Section 245 (2) of the Code for the discharge of the accused persons in view of the aforesaid judgment of the matrimonial court, the petitioner under Section 482 of the Code is dismissed.