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Gujarat High Court · body

2009 DIGILAW 6 (GUJ)

PARESH CHATURDAS PATEL v. STATE OF GUJARAT

2009-01-12

K.A.PUJ

body2009
( 1 ) THE petitioner - original accused in Criminal Case No. 1903 of 1996 has filed this petition under Article 227 of the Constitution of India praying for quashing and setting aside the proceedings of Criminal Case No. 1903 of 1996 initiated against the petitioner along with the order passed below application Exh. 109 in Criminal Case No. 1903 of 1996. ( 2 ) THIS Court vide its order dated 10. 09. 2004 permitted the petitioner to join the original complainant as party - respondent No. 2 and issued notice on the State Government as well as this newly joined party. While issuing the notice, the Court has observed that since November 2003, there is no substantive progress in the complaint filed against the present petitioner. The Court has also taken note of the various litigations that had taken place between the parties since May 1991 and this being a matrimonial dispute, the Court has issued notice to the respondents, more particularly, respondent No. 2. ( 3 ) ON 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) and 114 of the Indian Penal Code. ( 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) and 114 of the Indian Penal Code. In the said complaint, the complainant had made allegations with regard to bigamy marriage and it was also alleged that the complainant is the legally wedded wife of the petitioner and since the marriage is in existence, the petitioner has remarried with other woman. The learned JMFC, Vijapur directed the Police to inquire into the matter and passed order under Section 156 (3) of the Cr. P. C. After the investigation and the inquiry, the Police has submitted C summary report before the Court. However, since the complainant had opposed the same, ultimately, the Trial Court has again directed the Police to investigate the matter. The Police had thereafter submitted a charge-sheet on 18. 12. 1996. ( 6 ) IT is also the case of the petitioner that the complainant, without any cogent reason, had left the house of the petitioner on 18. 05. 1991. The petitioner and the complainant are also having son, namely, Kaushal. The complainant did not care for Kaushal and left the petitioner and his son on 18. 05. 1991. Though the complainant had voluntarily left the petitioner without any reason, with a deliberate intention, she had lodged the complaint under Section 323, 504, 506 (2) of IPC against the petitioner. ( 7 ) CRIMINAL Case No. 850 of 1991 was registered against the petitioner pursuant to the said complaint. In the said case, the petitioner had been convicted for the imprisonment of three months. However, so far as other accused are concerned, they were acquitted. Against the said conviction order, the petitioner had preferred Criminal Appeal No. 55 of 2000 before the Sessions Court, Mehsana and the learned Sessions Judge had quashed and set aside the order of conviction of the petitioner and acquitted the petitioner from the said charges. ( 8 ) DURING the said period, the complainant had also lodged another criminal complaint against the petitioner under Sections 498-A, 504, 506 (2) of IPC and under Section 4 of the Dowry Act. In the said complaint, the complainant had shown the incident of 18. 05. 1991. ( 8 ) DURING the said period, the complainant had also lodged another criminal complaint against the petitioner under Sections 498-A, 504, 506 (2) of IPC and under Section 4 of the Dowry Act. In the said complaint, the complainant had shown the incident of 18. 05. 1991. The said complaint was registered as Criminal Case No. 1310 of 1993. In the said criminal case, the petitioner had been acquitted by the trial Court on 10. 02. 2004. During the pendency of the aforesaid case, the complainant had lodged the present Criminal Case No. 1903 of 1996 on 29. 09. 1995 which shows that the complainant, 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 the petitioner has submitted that charge-sheet filed against the petitioner and the evidence adduced by the complainant do not disclose any of the offences alleged against the petitioner. The complainant is in the habit of lodging false complaint and the present proceedings are also deliberate attempt on the part of the complainant to harass the petitioner and looking to the conduct and malicious intention on the part of the complainant, the entire proceedings are required to be quashed and set aside. The complainant is in the habit of lodging false complaint and the present proceedings are also deliberate attempt on the part of the complainant to harass the petitioner and looking to the conduct and malicious intention on the part of the complainant, the entire proceedings are required to be quashed and set aside. He has further submitted that none of the ingredients of the offence under Section 494 is established against the petitioner even at the initial stage and more particularly, after recording the evidence. Earlier, the complaint was filed in the year 1993 against the petitioner by the complainant under Sections 498-A, 504 and 506 (2) of IPC and under Section 4 of the Dowry Act. The petitioner was acquitted in the said Criminal Case on 10. 02. 2004. He has further submitted that looking to the conduct of the complainant, it is very apparent that the complainant wants to harass the petitioner. Right from the date the complainant had left the petitioner's house, the complainant had been harassing the petitioner by filing false and frivolous complaints against the petitioner. ( 11 ) MR. Desai has further submitted that the petitioner is serving in the State Government and because of the false complaints being filed against the petitioner, the petitioner is facing lot of difficulty in the Government employment. He has further submitted that taking advantage of the pending complaint, the complainant filed an application before the State Government in the year 2002 for taking action against the petitioner in view of the fact that the petitioner was alleged to have married second time. The petitioner was given show-cause notice and inquiry was initiated on 15. 02. 2002. The petitioner challenged the said action of the State Government before this Court in Special Civil Application No. 10704 of 2002 wherein, after hearing the parties, ad-interim relief was granted by this Court and the inquiry was stayed. The said interim relief was confirmed after hearing the parties on 26. 02. 2004. The State Government thereafter filed Civil Application No. 4226 of 2004 in the said Special Civil Application for vacating the interim relief. However, the said Civil Application was also rejected by this Court on 20. 09. 2004. ( 12 ) MR. The said interim relief was confirmed after hearing the parties on 26. 02. 2004. The State Government thereafter filed Civil Application No. 4226 of 2004 in the said Special Civil Application for vacating the interim relief. However, the said Civil Application 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 Rs. 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 18 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 No. 37 of 2006 and the said appeal came to be dismissed by the learned Appellate Court. Thereafter, the complainant - wife filed Second Appeal No. 166 of 2007 before this Court. The said Second Appeal came to be dismissed by this Court on 18. 02. 2008 wherein while dealing with the contention regarding bigamy, this Court had observed that another facet of argument about the petitioner - husband having relationship with another woman, is also without any substance in as much as admittedly, when the appellant - wife left the matrimonial house in the year 1991, there was no such relationship and even later on, in the year 1995, when it is alleged, the appellant - wife in her deposition, has admitted that she is not living with the petitioner - husband. The Court has also considered the entry in the electoral roll which was subsequently deleted. The Court has also considered the entry in the electoral roll which was subsequently deleted. The Court, therefore, took the view that the same could not have been the ground or reason to leave the matrimonial house, which otherwise would perhaps be available as contention of obstinate desertion. He has, therefore, contended that on the basis of the decision rendered by this Court in Second Appeal, the present petition deserves to be allowed and the criminal case filed against the petitioner on the ground of alleged bigamy is required to be quashed and set aside. ( 14 ) MR. Desai has further submitted that it is settled law that High Court can exercise its power of judicial review in criminal matters under Article 226 of the Constitution of India and also inherent powers under Section 482 of the Criminal Procedure Code to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Looking to the facts and circumstances of the case, the exercise of powers would be in the interest of justice for the sole purpose to prevent the abuse of process of Court or otherwise to secure the ends of justice. Even as regards offence under Section 494, on the face of it, the said charge cannot be established and it does not constitute any offence against the petitioner. He has, therefore, submitted that this is a fit case where this Court should exercise its power under Articles 226 and 227 of the Constitution of India to prevent the abuse of process of law. ( 15 ) MR. Desai has further submitted that with regard to the charges levelled against the petitioner in the complaint under Section 506, 504 and 498-A, the 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 another V/s. The State of Maharashtra and another, AIR 1965 SC 1564 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 S. 17 of the Act, that the marriage to which S. 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 custom. The Court, therefore, took the view that unless the marriage between the parties was performed in accordance with the requirements of the law applicable to a marriage, the marriage cannot be said to have been 'solemnized' and, therefore, the husband cannot be held to have committed the offence under S. 494 of I. P. C. ( 17 ) MR. Desai further relied on the decision of the Hon'ble Supreme Court in the case of Kanwal Ram and others V/s. The Himachal Pradesh Administration, AIR 1966 SC 614 wherein it is held that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. The Court further held that where in prosecution for offences under Ss. 494/109 I. P. C. , the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons on statement of the alleged bridegroom that he had sexual relationship with the alleged bride and on admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified. ( 18 ) MR. Desai has relied on the decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W. B. V/s. Mohan Singh and others, AIR 1975 SC 1002 for the proposition that rejection of prior application for quashing is not a bar to entertain the subsequent application. ( 18 ) MR. Desai has relied on the decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W. B. V/s. Mohan Singh and others, AIR 1975 SC 1002 for the proposition that rejection of prior application for quashing is not a bar to entertain the subsequent application. The Hon'ble Supreme Court, in this case, held that "section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of Justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The Court further held 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. 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. ( 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 raised preliminary objection against the maintainability of the petition and submitted that the present petition cannot be entertained by this Court in as much as the petitioner had earlier approached this Court challenging the same proceedings, namely, the complaint in question, by filing Cri. Misc. Application No. 242 of 2002 wherein this Court has permitted the petitioner to withdraw this application and only indulgence was shown by the Court to reserve the liberty to the petitioner to file appropriate application before the concerned Judicial Magistrate First Class for early disposal of the criminal case. In the present case, charge is already framed by the trial Court in Criminal Case No. 1903 of 1996 and the trial Court has already proceeded to record the deposition / evidence of the original complainant and it is at this stage, that the present petitioner has, for the second time, approached this Court by way of the present petition for quashing of the complaint under Section 482 of the Criminal Procedure Code read with Articles 226 and 227 of the Constitution of India. He has further submitted that looking to the fact that the charge is already framed in the present case and that the evidence has been started to be recorded by the learned JMFC at Vijapur, it would not be appropriate for this Court to interfere at such a stage by exercising powers under Section 482 of the Cr. He has further submitted that looking to the fact that the charge is already framed in the present case and that the evidence has been started to be recorded by the learned JMFC at Vijapur, it would not be appropriate for this Court to interfere at such a stage by exercising powers under Section 482 of the Cr. P. C. for quashing of the criminal proceedings pending before learned JMFC, Vijapur in as much as the very purpose of passing the earlier order was to see that the petitioner was relegated to the trial Court for facing the trial and once having opted to do so and once having opted to make application before the trial Court for early disposal of the case, and now when the trial is proceeding wherein the evidence of the complainant is already recorded, any interference by this Court at this stage would militate the purpose of relegation and would amount to reviewing the earlier order which was passed on 11. 02. 2002 with respect to the very same complaint and as such, review is barred under Section 362 of Cr. P. C. Any interference at this stage by this Court is contrary to the cardinal principles of law because in such an eventuality wherein every case, the petitioner of a particular case, withdraws the petition before this Court with a view to proceed with the trial and then would again approach 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. 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 IPC. Section 406 prescribes punishment for criminal breach of trust. Section 494 prescribes punishment for marrying again during life time of husband or wife. Section 498-A prescribes punishment for husband or relative of a woman subjecting her to cruelty. On 20. 09. 1995, the learned JMFC directed the Police Officer in-charge of Vijapur Police Station to investigate the offence under Section 156 (3) of the Code of Criminal Procedure and submit a report. On 18. 12. 1996, charge-sheet was filed and case was registered as criminal case. Thereafter, charge was framed against the petitioner and the accused No. 2. On 05. 11. 2001, recording of evidence of the complainant was started. The complainant was cross-examined by the learned advocate appearing for the petitioner. On 11. 01. 2002, the petitioner submitted an application for quashing the criminal complaint No. 1310 of 1993 and Criminal Complaint No. 1903 of 1996. The petitioner has not placed the order of this application as also not placed a copy of the memo of criminal complaint. Therefore, it is not correct on the part of the petitioner to state that no such prayer was made. On 23. 03. 2004, the petitioner filed application Exh. 109 under Section 258 of Cr. P. C. for dropping the proceedings. On 18. 08. 2004, the said application came to be rejected by the learned JMFC, Vijapur. Mr. Jani has, therefore, submitted that with regard to the present complaint, earlier, the petitioner had filed Criminal Misc. Application No. 242 of 2008 and that is not stated by the petitioner. Instead of that, an evasive averment was made. On 18. 08. 2004, the said application came to be rejected by the learned JMFC, Vijapur. Mr. Jani has, therefore, submitted that with regard to the present complaint, earlier, the petitioner had filed Criminal Misc. Application No. 242 of 2008 and that is not stated by the petitioner. Instead of that, an evasive averment was made. The petitioner has neither enclosed the order passed by this Court nor enclosed memo of the said application. Even in the present petition, the petitioner has not joined the complainant as respondent No. 2. However, while passing the order on 10. 09. 2004, this Court has directed the petitioner to join the complainant as respondent No. 2. To the information of the complainant, one Ranjanben Patel, who is shown as accused No. 2 in the complaint, is found to have resided at the place of the petitioner and her name appeared in the voters list of 1995. Therefore, the prima facie allegation of the complainant about the petitioner having contracted another marriage during the subsistence of the marriage with the complainant is established. There is an alternative remedy available to the petitioner to challenge 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/s. Shanti Bose and another, AIR 1973 SC 799 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 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 matters to be considered by the trial Court after an appraisal of the entire evidence. ( 24 ) MR. Jani further relied on the decision of the Madras High Court in the case of M/s. Zoom Vision Rep. By Y. Hariharan, Managing Partner and others V/s. M/s. P. Manickam and Co. Rep. By its Partner M. Nagarajan, 2001 (4) Crimes 96 wherein it is held that once the trial has commenced, no application under Section 482 of Cr. P. C. has to be entertained for quashing proceedings. ( 25 ) MR. Jani further relied on the decision of the Hon'ble Supreme Court in the case of Hamida V/s. Rashid Alias Rasheed and others, (2008) 1 SCC 474 wherein it is held that the inherent powers of the High Court under Section 482 will have to be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done. When there was an effective alternative remedy available, the practice of High Courts in entertaining petitions under Section 482 is highly deprecated. Ends of justice be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 of Crpc at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice. ( 26 ) MR. Jani further relied on the decision of the Hon'ble Supreme Court in the case of Arun Shankar Shukla V/s. State of Uttar Pradesh, 1999 (6) SCC 146 wherein it is held that the High Court overlooked the important legal aspect that accused had a right of appeal against the order of conviction purported to have been passed. Expression "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court. Expression "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court. These aspects are to be secured in accordance with law including procedural law. It is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. The order passed by the High Court entertaining the petition under Section 482 and other interim orders passed thereunder are accordingly quashed. ( 27 ) MR. Jani further relied on the decision of this Court in the case of Jagatsinh N. Soda V/s. Indravadan Ramniklal Mehta, 2003 (3) GLR 1849 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/s. Y. N. Parekh and others, 2002 (4) GLR 3260 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/s. Gulwant Singh, 1992 (2) SCC 213 wherein it is held that "the High Court appears to have exceeded the scope of enquiry contemplated under S. 202 and had gone into the question of sufficiency of evidence for conviction of the offence of bigamy. Further, in view of the admission made by the learned Counsel for the respondents admitting before the Court the marriage of Darshan Singh with Mohinder Pal, the conclusion arrived at by the Court in the impugned order that the complaint does not contain any allegation of the performance of the marriage of Mohinder Pal with Darshan cannot be sustained and is liable to be set aside. " ( 30 ) MR. Jani further relied on the decision of this Court in the case of Upendra Chamanlal Sehgal V/s. State of Gujarat, 1986 (1) GLR 319 wherein while dealing with the question regarding maintainability of second application, it is held that once the High Court has entertained the application and rejected it, it was not open to the petitioner to file second application. The Court found that till filing of second application, no fresh events have occurred and hence, second application is not maintainable. ( 31 ) MR. Jani further relied on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh V/s. Awadh Kishore Gupta, 2004 (1) SCC 691 wherein it is held that it was impermissible for the High Court to look into materials since the investigation was still pending at that stage. Even if the charge is framed, the High Court cannot appreciate the evidence but can evaluate material and documents on record to the extent of its prima facie satisfaction about existence of sufficient ground for proceeding against the accused. The Court should not act on annexures to the petitions under Section 482, which cannot be termed as evidence without being proved. The Court further held that while exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. ( 32 ) BASED on this factual and legal position, Mr. Jani has strongly urged that there is no substance or merits in the petition filed by the petitioner and the same is required to be dismissed. ( 32 ) BASED on this factual and legal position, Mr. Jani has strongly urged that there is no substance or merits in the petition filed by the petitioner and the same is required to be dismissed. ( 33 ) HAVING heard learned advocates appearing for the respective parties and having considered their rival submissions in light of the statutory provisions and the decided case law on the subject, this Court is of the view that the petition deserves to be allowed and Criminal Case No. 1903 of 1996 initiated against the petitioner along with 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 and 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 and 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 case on 10. 02. 2004 and comes the third complaint under Sections 406, 498-A, 504, 506 (2) and 114 of the Indian Penal Code which is registered as Criminal Case No. 1903 of 1996. Basis of filing of this complaint 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. Basis of filing of this complaint 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. This is not enough for the purpose of making an allegation of bigamy as there is nothing on record to suggest that the marriage between them was solemnized nor it was celebrated or performed with proper ceremonies and due form. Even otherwise, admission of marriage by the accused is not evidence of the marriage for the purpose of proving marriage in an adultery or bigamy case as held by the Hon'ble Supreme Court in the case of Kanwal Ram and others V/s. The Himachal Pradesh Administration (Supra ). Even in Second Appeal No. 166 of 2007, this Court has passed an order on 18. 02. 2008 rejecting the plea regarding bigamy raised on behalf of the respondent No. 2 wife for the purpose of objecting to the decree of divorce passed in favour of the petitioner husband. The respondent No. 2 wife has also filed several other proceedings against the petitioner husband. She has filed a suit for judicial separation and when the petitioner agreed by filing a purshish, the said suit was withdrawn. She has also filed a complaint before the State Government where the petitioner is serving. On a notice being issued, the petitioner filed Special Civil Application before this Court and he has obtained the order of injunction against the implementation of the said notice. All these proceedings and their outcome will have to be judged in light of the fact that the respondent No. 2 herself has left the matrimonial house way back on 18. 05. 1991 leaving the petitioner as well as their only son and thereafter, series of litigations were filed by her against the petitioner. It, therefore, clearly appears to the Court that the only intention of the respondent No. 2 wife is to cause harassment to the petitioner. ( 35 ) IT is true that the petitioner has approached this Court earlier by filing Misc. Criminal Application No. 242 of 2002 and the same was ultimately withdrawn. However, considerable time was elapsed since the withdrawal of the said petition and filing of the present petition before this Court. ( 35 ) IT is true that the petitioner has approached this Court earlier by filing Misc. Criminal Application No. 242 of 2002 and the same was ultimately withdrawn. However, considerable time was elapsed since the withdrawal of the said petition and filing of the present petition before this Court. This 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/s. Mohan Singh and others (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 there was no much progress in the matter. The Court, therefore, rightly entertained the present petition and looking to the peculiar facts of this case, the petition deserves to be allowed. ( 36 ) THE authorities cited by the learned advocate appearing for the respondent No. 2 do not render much assistance to the respondent No. 2. The judgments are based on the peculiar facts found by the Court. When a gross case is made out by a party establishing that the other side is abusing the process of law and unless the Court intervenes and restrains the other side from such abuse and to secure the ends of justice, such abuse would be perpetuated. Despite the fact that the respondent No. 2 has failed on almost all occasions in roping the petitioner in several complaints, the respondent No. 2 went on filing such complaints. Despite the fact that the respondent No. 2 has failed on almost all occasions in roping the petitioner in several complaints, the respondent No. 2 went on filing such complaints. The present case is registered in 1996 and in 2009 also, the same is pending. The marriage between the petitioner and the respondent No. 2 was broken in 1991. Divorce between them is upheld upto the level of High Court and there is no prima facie evidence establishing that the petitioner remarried with other woman at any point of time. Considering this factual background and the endeavour of the Court to render substantial justice between the parties, this Court is of the view that it would be a fruitless exercise to continue this proceeding against the petitioner. The Court, therefore, allows this petition and accordingly, Criminal Case No. 1903 of 1996 pending before the Court of learned Judicial Magistrate First Class, Vijapur and any order / orders passed therein are hereby quashed and set aside.