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2010 DIGILAW 3252 (MAD)

V. D. Grahalakshmi v. Narayanan Venuprasad Menon

2010-08-02

S.NAGAMUTHU

body2010
Judgment :- The dismissal of the private complaint filed by the petitioner in Crl.M.P.No.2293 of 2008 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai under Section 203 Cr.P.C. is under challenge in this revision. 2. The facts, in brief, are as follows: - The petitioner was married to one Mr.T.Prasanth, a Cine Actor, on 01.09.2005 at Chennai and out of the said wedlock, she has given birth to a male child on 31.07.2006. Subsequently, due to some matrimonial dispute, they have been living apart. While so, her husband Mr.T.Prasanth filed F.C.O.P.No.1992 of 2007 before the Family Court at Chennai against the petitioner herein for grant of a decree of nullity of the said marriage. In the said petition, her husband Mr.T.Prasanth had averred that the petitioner was already married to the respondent herein on 30.11.1998 itself and the said marriage was also duly registered at the office of the Marriage Registrar, Chennai Central on 30.12.1998. But, according to the petitioner, there was no such marriage between her and the respondent on 30.11.1998 and therefore the above averment in the F.C.O.P.No.1992 of 2007 filed by her husband Mr.T.Prasanth was a shocking information to her. Therefore, according to her, she approached the Registrar and collected material records and from that she came to know that the respondent had produced a different woman under the name and style of D.Grahalakshmi and got the marriage registered as though there was a marriage on 30.11.1998 between the petitioner and the respondent. The said act of the respondent, according to the petitioner, amounts to offences of forgery, cheating by impersonation etc., The complainant further alleges that for registering the said marriage, the respondent had induced a lady not known to the complainant to impersonate the petitioner before the Marriage Registrar. It is further alleged that the respondent had fabricated false and bogus invitation cards, used the same before the Registrar and also falsely declared before the Marriage Registrar that there was marriage between the petitioner and the accused as if it was performed by a prokit by name Mr.Murali Iyer. It is further stated that the marriage between her and Mr.T.Prasanth was the only marriage and there was no marriage at all between her and the respondent. With the above allegations, the private complaint was filed. 3. It is further stated that the marriage between her and Mr.T.Prasanth was the only marriage and there was no marriage at all between her and the respondent. With the above allegations, the private complaint was filed. 3. On taking cognizance of the offences stated in the complaint, the learned Magistrate on 29.05.2008 recorded the statement of the petitioner as required under Section 200 Cr.P.C. The learned counsel on record for the petitioner declared that no further witness, for the present, was to be examined. Based on the said statement made by the learned counsel, the learned Magistrate perused the materials on record and passed final order on 13.06.2008 thereby dismissing the complaint under Section 203 Cr.P.C. It is the said order, which is under challenge in this revision. 4. At the out set, the learned Senior Counsel appearing for the petitioner would submit that the impugned order is perverse in the sense that the learned Magistrate has stated that under Section 319 Cr.P.C., in future, the respondent could be added as an accused in another case in C.C.No.5967 of 2007. At this juncture, it should be mentioned that Mr.T.Prasanth had preferred a complaint to the police as though he was cheated by the petitioner and her parents in contracting marriage with him by suppressing the earlier marriage between the petitioner and the respondent herein and also for bigamy. On completing the investigation, the police has filed a final report for the offences under Sections 418, 494, 496 and 387 r/w. 120(b) I.P.C. In the said case in C.C.No.5967 of 2007, the petitioner and her parents are the accused and they are facing trial. The learned Magistrate has therefore held that in respect of the offences said to have been committed by the respondent as alleged in this private complaint, he can be added as an accused in C.C.No.5967 of 2007 under Section 319 Cr.P.C. in future. The learned Senior Counsel appearing for the petitioner would further submit that the materials placed by way of private complaint, the documents and the statement recorded from the petitioner under Section 200 Cr.P.C. would clearly make out a prima facie case for issuing summons under Section 204 Cr.P.C. to the respondent and thus the impugned order of the learned Magistrate requires interference at the hands of this Court. 5. The learned Senior Counsel appearing for the respondent would vehemently oppose the revision. 5. The learned Senior Counsel appearing for the respondent would vehemently oppose the revision. However, he would fairly concede that the sole reason stated in the order of the learned Magistrate that the respondent could be added as an accused under Section 319 Cr.P.C. in C.C.No.5967 of 2007, is totally erroneous. But the learned Senior Counsel would submit that though the impugned order cannot be sustained for the reasons stated in the order, still, the revision is liable to be dismissed as there are no materials available on record even to make out a prima facie case to issue summons under Section 204 Cr.P.C. to the respondent. The learned Senior Counsel would further submit that since the marriage has been registered, there is a presumption of marriage as per law and therefore the complaint is totally baseless. In this regard, he would rely on a judgment of this Court in N.Poongodi and two others Vs. V.Irulappan reported in 2008-2 L.W. (Crl.) 1101. The learned Senior Counsel would further submit that this Court would be circumspect and judicious in exercising its discretion and should take all the relevant facts and circumstances into consideration before directing the learned Magistrate to issue process lest it would be an instrument in the hands of the private complainant as vendetta to harass the respondent. In this regard, the learned Senior Counsel relies on a judgment of the Honble Supreme Court in Punjab National Bank and others Vs. Surendra Prasad Sinha reported in 1993 Supp.(1) Supreme Court Cases 499 and yet another case in M/s.Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and others reported in 1998 Supreme Court page 128. For all these reasons, the learned Senior Counsel would submit that the impugned order of the learned Magistrate may be sustained. 6. I have considered the rival submissions and also perused the records carefully. 7. At the out set, I have to state that while deciding the question as to whether to dismiss the complaint under Section 203 Cr.P.C. or to issue summons to the accused under Section 204 Cr.P.C., it is incumbent on the part of the learned Magistrate to apply the test of a prima facie case. It is not the consideration of the Court at that stage to formulate opinion about prospects of conviction or acquittal. It is not the consideration of the Court at that stage to formulate opinion about prospects of conviction or acquittal. To asses whether summons could be issued or not, the Court is required to look into the averments in the complaint, the documents filed therewith and the statements of the complainant under Section 200 Cr.P.C. and statements, if any, recorded from the witnesses under Section 201 Cr.P.C. 8. Keeping in mind the above said principles of law, let me now look into the facts of the facts. In the complaint, it is categorically stated that there was no marriage between the petitioner and the respondent and she never had been to the Registrars Office for registering the marriage. It is further stated that the application filed before the Registrar of Marriages for registration was not signed by her. It is further alleged that the documents like the invitation card etc., produced before the Registrar were all forged documents. It is again stated that on getting the xerox copy of the original application filed before Registrar, it was subjected to comparison by a handwriting expert by name Mr.P.T.Ashok Kashyap and the said expert has given a certificate that the signature is a forged one. Then, in paragraph No.7 of the complaint, it is stated that in connection with a case in C.C.No.5967 of 2007 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai, the respondent in his statement under Section 161 Cr.P.C. has categorically admitted the following facts viz., i) On 30.11.1998, no marriage was performed at V.M. Kalyana Mandapam between him and the complainant; ii) For the purpose of registration or the alleged marriage, he prepared a fake marriage invitation through his friend Sudhir and iii) that no iyer performed the marriage. From these materials, the learned Senior Counsel appearing for the petitioner would submit that a prima facie case has been made out to issue summons to the respondent. 9. In my considered opinion, such statement made under Section 161 Cr.P.C. in connection with a different case by an accused cannot be used in this case for any purpose because it is barred by Section 162 of Cr.P.C. The learned Senior Counsel would make an attempt to say that when the said statement was made, the respondent was not an accused, the same could be looked into. I regret, I am not able to agree with the said proposition propounded by the learned Senior Counsel. In this regard, I have to state that a statement made under Section 161 Cr.P.C. during the investigation can be used for the limited purpose enumerated in Section 162 Cr.P.C. only and not otherwise. Therefore, the alleged statement made by the respondent in connection with C.C.No.5967 of 2007 cannot be made use of in this case for any purpose. Further, the said statement is in the nature of a confession and since it was made to a police officer, it is irrelevant as per Section 25 of the Evidence Act. Therefore, this statement cannot be relied on. But, the averments made in the complaint, in my considered opinion, prima facie go to make out a case for issuance of summons. Whether these allegations are true or not is a matter for trial to be decided at a later point of time. 10. It was pointed out by the learned Senior Counsel appearing for the respondent that though there is an averment in paragraph No.6 of the complaint that Mr.P.T.Ashok Kashyap, handwriting expert has given a certificate on 30.07.2007 stating that the signature found on the application for the registration of marriage was a forged one, neither the said witness has been cited in the private complaint nor the document has been produced. For this, the learned Senior Counsel for the petitioner would submit that it is by inadvertence the same has been omitted. However, he would submit that the petitioner is prepared to produce the said witness by filing an additional list of witnesses and also documents. 11. In my considered opinion, this case is at its threshold. A matrimonial dispute cannot be lightly viewed just like that of any other dispute. When a serious offence of forgery is alleged which involves the future and modesty of a woman, on such a technical ground that some witnesses have been omitted to be cited, statements under Section 201 Cr.P.C. have not been recorded and documents have not been produced, the complaint cannot be foreclosed at its very inception. In my considered opinion, the procedure contemplated under Sections 200, 201, 203 and 204 Cr.P.C. are all only means to justice and they cannot be termed as substantive provisions. After all procedure is the handmaid of justice. In my considered opinion, the procedure contemplated under Sections 200, 201, 203 and 204 Cr.P.C. are all only means to justice and they cannot be termed as substantive provisions. After all procedure is the handmaid of justice. Therefore, a too technical approach cannot be adopted in a case of this nature where such serious offence is alleged. 12. In respect of the contention of the learned Senior Counsel for the respondent that there is presumption of valid marriage because there is registration, I regret that I am unable to agree with the said argument. Such presumption of valid marriage, which is also rebuttable, can be raised if only there is valid registration. When the very registration of the marriage is alleged to have been obtained by playing fraud and impersonation, I am sure that such presumption cannot be raised. Therefore, the observations made in N.Poongodis case (2008-2 L.W. (Crl.) 1101) relied on by the learned Senior Counsel cannot be made applicable to the facts of the present case. In respect of the other two judgments of the Honble Supreme Court relied on by the learned Senior Counsel, having a cautious approach, I am of the view that this is not a case where the complaint can be dismissed at its threshold under Section 203 Cr.P.C. 13. The learned Senior Counsel appearing for the respondent nextly relied on certain documents, which have been filed by way of typed set of papers. The first one is, the affidavit of the petitioner filed before this Court in an earlier proceeding dated 18.06.2007 and yet another affidavit filed before this Court in Crl.O.P.No.17590 of 2007 dated 20.06.2007. In those affidavits, the petitioner has averred that the registration of the so-called marriage between her and the respondent was made to the knowledge of Mr.T.Prasanth. Relying on this, the learned Senior Counsel would submit that having stated that only with the knowledge of Mr.T.Prasanth the marriage was registered, now it is not open for the petitioner to point her fingers against the respondent. In my considered opinion, these materials cannot be considered at this stage. Why these affidavits were filed, under what circumstances and what are the contents of the affidavits are all matters to be analysed by the learned Magistrate during trial when the maker of the affidavits is examined as a witness. In my considered opinion, these materials cannot be considered at this stage. Why these affidavits were filed, under what circumstances and what are the contents of the affidavits are all matters to be analysed by the learned Magistrate during trial when the maker of the affidavits is examined as a witness. The learned Senior Counsel would also rely on the counter filed by the petitioner in O.P.No.1869 of 2007 and the complaint given by the petitioner to the Deputy Commissioner of Police, T.Nagar, Chennai, dated 16.06.2007. In my considered opinion, as I have already stated, these are all documents, which can be looked into at the appropriate stage of trial, if there is any such trial. 14. Coming back to the sole ground on which the complaint was dismissed by the learned Magistrate, in my considered opinion, it is needles to point out that Section 319 Cr.P.C. can be invoked by the Court to add an accused who is not already facing trial, only in a case where in respect of the offence for which trial is being conducted, there are allegations made in evidence during trial. Here the case in C.C.No.5967 of 2007 relates to the dispute between the petitioner and Mr.T.Prasanth. Now, in respect of offences alleged in the said case, the respondent, admittedly, has got no role to play. The offences which are alleged in the present private complaint have got nothing to do with the offences which are being tried in C.C.No.5967 of 2007. Therefore, in my considered opinion and as conceded to by the learned Senior Counsel appearing for the respondent also, the learned Magistrate has committed a serious illegality in holding that under Section 319 Cr.P.C. the respondent could be added as an accused at a later point of time. Thus, the sole ground on which the order came to be passed is liable to be set aside. At the same time, the request of the learned Senior Counsel appearing for the respondent to sustain the impugned order for different reasons also cannot be accepted. 15. Thus, the sole ground on which the order came to be passed is liable to be set aside. At the same time, the request of the learned Senior Counsel appearing for the respondent to sustain the impugned order for different reasons also cannot be accepted. 15. Before parting with the case, I have to clarify that the learned Magistrate, while deciding either to dismiss the complaint under Section 203 Cr.P.C. or to issue summons under Section 204 Cr.P.C., shall do it strictly in accordance with law guided by the settled principles of law without being influenced by any of the observations made in this order. 16. In the result, this Criminal Revision Petition is allowed, the impugned order is set aside and the matter is remitted back to the learned Magistrate, who shall permit the petitioner to examine further witnesses under Section 201 Cr.P.C., to file additional exhibits, if any and also to examine additional witnesses, if any, and then to decide whether to issue summons under Section 204 Cr.P.C. or to dismiss the complaint under Section 203 Cr.P.C. The petitioner shall co-operate with the Lower Court by producing the witnesses so that the learned Magistrate can pass order as directed above within a period of two months from the date of receipt of a copy of this order. It is made clear that until an order is made either under Section 203 Cr.P.C. or under Section 204 Cr.P.C., the respondent shall be given no opportunity to appear before the learned Magistrate. But at the same time, it will not prevent the respondent to be present in Court whenever the case is called and to watch the proceedings.