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Gauhati High Court · body

2016 DIGILAW 852 (GAU)

Tage Kaku v. Radhe Raja

2016-09-09

A.K.GOSWAMI

body2016
JUDGMENT : A.K. Goswami, J. This application under Section 482 of the CrPC is filed for quashing of Complaint Case No.65/2015 under Section 497 IPC pending before the Court of the learned Judicial Magistrate, First Class, Yupia. 2. The respondent No. 1 had filed a complaint on 28.09.2015 against one Tagam Mibang and the present petitioner showing them as opposite party No.1 and opposite party No.2. In the complaint, it is stated that the complainant was married to the present petitioner as per the 'Apatani' customary law and out of the wedlock, they had four children. The complainant is an Executive Engineer in the Public Health Engineering Department and the opposite party No.2 is an Assistant Teacher posted at Government Middle School, G-Sector and the opposite party No. 1 is an Extra Assistant Commissioner. It is stated that the opposite party No. 1 and the opposite party No.2 became friends through facebook and later on, it developed into an illicit relationship, as they started meeting each other at secret places including in absence of the complainant, at his own residence as well as in the residence of the opposite party No. 1 to have illicit intercourse. During the visits of the opposite party No. 1, the opposite party No.2 used to switch off the CCTV cameras installed in his house. According to the complainant, on 29.07.2015 at about 9:00 AM, he saw both the opposite party No. 1 and the opposite party No.2 together in a car near the Office of the Accountant General, Itanagar and when he enquired where she was, the opposite party No.2 lied to him saying that she was at some other place alone. On being asked to come back home for some urgent discussion, she came around 10:30 AM and as they were in conversation, a message came in the mobile phone of the opposite party No.2 which prompted the complainant to check the mobile messages and in the body of the complaint petition, number of messages by mobile phone exchanged between the opposite party No. 1 and the opposite party No.2 on 29.07.2015 are reproduced. The opposite party No.2 then begged forgiveness on being found out and thereafter, the complainant started to check the CCTV footages of his house and he found that the opposite party Nos. The opposite party No.2 then begged forgiveness on being found out and thereafter, the complainant started to check the CCTV footages of his house and he found that the opposite party Nos. 1 and 2 had come out from the complainant's bed room on 23.07.2015 and had also locked themselves up in the bed room on 24.07.2015 and they did not open the door despite repeated knocks of the domestic helper and daughter of the opposite party No.2 after she had returned from school. Later on, the opposite party No.2 opened the door and when the daughter and a relative went inside the room, the opposite party No. 1 was not seen but after they had left, the opposite party No. 1 came out from the very same room, which suggested that the opposite party No. 1 had hidden himself and the said events demonstrated that they were having illicit intercourse. 3. The complainant also ascertained from his family members and domestic helpers that the opposite party No. 1 very often visited the house of the complainant and he also used to leave his son at the residence of the complainant. The complainant had sent back opposite party No.2 to her parental home for divorce as per 'Apatani' customary law. Realizing the mistakes committed by her and imploring not to divorce her, the opposite party No.2 sent a number of messages by mobile phone to the complainant while he was visiting his children at Bangalore. Some of the messages were also incorporated in the complaint petition. As the complainant did not forgive, the complainant's mother was threatened by opposite party No.2 saying that she would implicate and rope in the complainant and his other family members in false criminal cases, if she could not convince her son to forgive her. Failing to succeed in such endeavour, the opposite party No.2 filed a case alleging domestic violence, registered as Domestic Violence Case No.09/2015, in the Court of the learned Judicial Magistrate, First Class, Yupia. A complaint case was also filed against the complainant and his mother being C.R. Case No.56/2015 under Section 500/506/509 34 IPC in the Court of the learned Judicial Magistrate, First Class, Yupia. 4. The instant criminal petition came to be filed by the petitioner, who is the opposite party No.2 in the complaint petition, on 14.07.2016. A complaint case was also filed against the complainant and his mother being C.R. Case No.56/2015 under Section 500/506/509 34 IPC in the Court of the learned Judicial Magistrate, First Class, Yupia. 4. The instant criminal petition came to be filed by the petitioner, who is the opposite party No.2 in the complaint petition, on 14.07.2016. When this application was filed, the case was fixed for evidence before charge. The petitioner has not enclosed the copy of the order taking cognizance and initial deposition but a statement is made in Paragraph-26 that no cognizance was taken against the petitioner. A lady, who was not a party in the complaint case, is also arrayed in the instant petition as respondent No.2, contending that the complainant had married her and that she is in the family way. 5. In the petition, the petitioner has stated that the complainant/respondent No. 1 was having illicit relationship and he had started levelling false allegations against her of having extra-marital affairs. She had been tortured physically and mentally and was also assaulted on a number of occasions and that the complainant has a violent temper. From 28.7.2015 to 31.07.2015, she was repeatedly beaten by the complainant/respondent No. 1 and on 31.07.2015, the complainant/respondent No. 1 ousted her from the matrimonial home and he informed the clan brothers and elders of the petitioner of his intention to divorce the petitioner. The clan members, elder sister, elder brother and mother went to the house of the complainant/respondent No.1 on 3.8.2015 but he refused to keep the petitioner as his wife and, therefore, divorce had taken place on 03.08.2015 as per the 'Apatani' custom and they are no longer husband and wife. It is stated that the complaint petition was filed in order to harass the petitioner and the opposite party No. 1 therein and that cognizance was taken on 19.01.2015 (sic) (should have been 19.01.2016) against the opposite party No. 1. 6. I have heard Mr. M. Pertin, learned senior counsel for the petitioner as well as Mr. P.K. Tiwari, learned senior counsel, appearing for the respondent No. 1. None appears for respondent No.2. 7. Mr. Pertin, learned senior counsel for the petitioner has submitted that although no cognizance was taken against the petitioner, the continuance of the case will effect the reputation of the petitioner adversely. P.K. Tiwari, learned senior counsel, appearing for the respondent No. 1. None appears for respondent No.2. 7. Mr. Pertin, learned senior counsel for the petitioner has submitted that although no cognizance was taken against the petitioner, the continuance of the case will effect the reputation of the petitioner adversely. Even if the allegations are taken at its face value then also no prima facie case under Section 497 IPC is made out. He has further submitted that the complainant/respondent No.1 did not have any locus to lodge the complaint under Section 497 IPC as the complainant ceased to be the husband when the complaint was lodged on 29.09.2015 as he had divorced the petitioner on 03.08.2015. He has submitted that the complainant/respondent No. 1 had married the respondent No.2 and, therefore, this Court ought to quash the complaint in exercise of powers under Section 482 Cr.P.C., as permitting the complaint case to be proceeded with would be an abuse of the process of the Court. In support of his submissions, Mr. Pertin has placed reliance on the judgments of the Apex Court in the case of Smt. Sowmithri Vishnu v. Union of India & Anr. reported in AIR 1985 SC 1618 ; Gian Singh v. State of Punjab & Anr., reported in (2012) 10 SCC 303 and a judgment of the Kerala High Court in the case of Sivadasan v. State of Kerala & Anr., delivered on 30.03.2016. 8. Mr. P.K. Tiwari, learned senior counsel appearing for the complainant/respondent No. 1 has submitted that the petitioner cannot maintain this application as she is neither an accused/convict nor an informant/complainant. The accused, against whom cognizance was taken, has not approached this Court and is also not made a party to the proceeding and if the complaint case is quashed, same would result in shielding the accused and closure of the prosecution. He has submitted that the plea taken that the petitioner had been divorced by the complainant/respondent No. 1 is also false as in the Domestic Violence Case No.09/2015, filed on 29.08.2015, the petitioner had described herself to be the wife of the complainant and in the case filed on 02.09.2015 being C.R. Case No.56/2015 also, the petitioner had described herself as the wife of the complainant/respondent No. 1. He has further submitted that no material has been placed by the petitioner before this Court to demonstrate that the complainant/respondent No. 1 had divorced the petitioner. It is submitted by him that the complaint petition, prima facie, discloses commission of an offence under Section 497 IPC and the same is also supported by the evidence of the complainant and the report submitted by the investigating authority, which had not been brought on record by the petitioner, and on consideration of the materials on record, the learned trial Court had taken cognizance of the offence under Section 497 IPC against the opposite party No.1 by order dated 19.01.2016. He has contended that law does not require that there has to be any direct evidence of sexual intercourse and conclusions regarding sexual intercourse shall have to be gathered on the basis of reasonable inferences drawn from the totality of the facts and circumstances of the case. He has submitted that, needlessly, another lady had been drawn into the litigation although she is not a party to the proceeding before the learned trial Court. He places reliance on the judgments of the Apex Court in the case of Earnist John White v. Mrs. Kathleen Olive White (Nee Meade) & Ors. reported in AIR 1958 SC 441 , Nirmaljit Singh Hoon v. State of West Bengal & Ors., reported in AIR 1972 SC 2639 ; Smt. Sowmithri Vishnu v. Union of India & Anr., reported in AIR 1985 SC 1618 ; Md. Qamruddin v. Md. Khursheed, reported in (1981) 0 Supreme (Pat) 27 and a judgment of the Kerala High Court in the case of K.C. Ramachandran v. Puthiya Purayil Baburaj reported in 2010 (2) Crimes 424 (Ker). 9. Section 497 IPC is one of 6 Sections in Chapter-XX of the IPC which is entitled "Of Offences Relating to Marriage". For better appreciation, Section 497 IPC is quoted herein below:- "497. Adultery.- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor." 10. The offence of adultery as defined in Section 497 IPC can only be committed by a man, and not by woman and the section explicitly provides that the wife shall not be punishable even as an abettor. 11. In Yusuf Abdul Aziz v. State of Bombay; reported in AIR 1954 SC 321 , the Apex Court had held that Section 497 IPC does not offend Articles 14 and 15 of the Constitution. After almost two and half decades since Yusuf Abdul Aziz was decided once again a challenge was mounted in Smt. Sowmithri Vishnu (supra), contending that Section 497 IPC is violative of Articles 14, 15 and 21 of the Constitution of India. Once again the Supreme Court held that Section 497 IPC does not offend Articles 14, 15 and 21 of the Constitution. 12. In Smt. Sowmithri Vishnu (supra), the Apex Court had observed that the contemplation of law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime and is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law as stability of marriages is not an ideal to be scorned. While acknowledging that right to life includes the right to reputation, it was held that because Section 497 IPC does not contain a provision that wife must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is not bad in law. The Apex Court held that if the wife makes an application in the trial Court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the Court. Therefore, the contention advanced by Mr. M. Pertin that the complaint case is required to be quashed, as continuation of the case may affect the reputation of the petitioner adversely, is without any merit. Therefore, the contention advanced by Mr. M. Pertin that the complaint case is required to be quashed, as continuation of the case may affect the reputation of the petitioner adversely, is without any merit. A prosecution for adultery cannot be quashed on the ground that the reputation of the wife of the complainant and/or informant may be adversely affected as the legislature views such a wife as a victim only. 13. Though Mr. Tiwari had questioned the maintainability of the present petition as the petitioner is neither an accused nor a complainant, having regard to the observations of the Apex Court in Smt. Sowmithri Vishnu (supra) that there is nothing, either in the substantive or the adjectival criminal law, which bars the Court from affording a hearing to a party, who is likely to be adversely affected, directly or indirectly, by the decision of the Court and also having regard to the fact that the petitioner has raised the issue of divorce, I am not inclined to take a view that this petition is liable to be dismissed on the ground that the same is not maintainable. 14. Section 198(1) of the CrPC provides that no Court shall take cognizance of an offence punishable under Chapter-XX of the IPC except upon a complaint made by some person aggrieved by the offence. Section 198(2) CrPC provides that for the purpose of Section 198(1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 IPC, which prescribes punishment for enticing or taking away or detaining a married woman with criminal intent. 15. There was and is no dispute that the petitioner was married to the complainant/respondent No. 1 and, therefore, the petitioner is the wife of the complainant/respondent No. 1. If that be so, the complainant/respondent No. 1 will be a person aggrieved and he would be entitled to file a complaint case alleging adultery. Mr. Pertin, learned senior counsel for the petitioner has contended that the complainant/respondent No. 1 had divorced the petitioner on 03.08.2015 according to 'Apatani' custom. At this stage, it is only an assertion of the petitioner and it cannot be authoritatively pronounced and held that the petitioner has ceased to be the wife of the complainant/respondent No. 1 on being divorced. Pertin, learned senior counsel for the petitioner has contended that the complainant/respondent No. 1 had divorced the petitioner on 03.08.2015 according to 'Apatani' custom. At this stage, it is only an assertion of the petitioner and it cannot be authoritatively pronounced and held that the petitioner has ceased to be the wife of the complainant/respondent No. 1 on being divorced. As on today, it is not a proved fact that the complainant/respondent No. 1 had divorced the petitioner and on the contrary, submission of Mr. Tiwari is that the petitioner filed Domestic Violence Case No.09/2015 and C.R. Case No.56/2015, on 29.08.2015 and 02.09.2015, respectively, describing herself as the wife of the complainant/respondent No. 1. It will be very hazardous to hold in absence of any conclusive material that the complainant/respondent No. 1 had divorced the petitioner on 03.08.2015, prior to filing of the complaint case on 28.09.2015 and, therefore, it must be held that the complainant/respondent No. 1 was competent to lodge the complaint case against the opposite party No. 1 alleging that he had committed adultery with his wife. Reliance placed by Mr. Pertin on Smt. Sowmithri Vishnu (supra) to contend that the Apex Court had quashed the complaint case under Section 497 IPC on the ground that the complainant had already obtained divorce against his wife and, therefore, the instant complaint case is also liable to be quashed, is without any merit as in Smt. Sowmithri Vishnu (supra), the fact of divorce was a proven fact, which is not the case herein. 16. Section 203 of the CrPC provides that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no "sufficient ground" for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. In Section 202 CrPC also the expression "sufficient ground" finds place. The words "sufficient ground" mean the satisfaction that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. In Section 202 CrPC also the expression "sufficient ground" finds place. The words "sufficient ground" mean the satisfaction that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. Even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of a process cannot be refused. (See Nirmaljit Singh Hoon). 17. How adultery has to be proved was laid down in Loveden v. Loveden, reported in (1810) 181 E.R. 618. In the said case, Sir William Scott had observed as follows:- "It is a fundamental rule, that it is not necessary to prove that direct fact of adultery: because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable: it is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion: and unless this were the case, and unless this were so held, no protection whatever can be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid universally, though many of them, of a more obvious nature and of more frequent occurrence, are to be found in the ancient books: at the same time it is impossible to indicate them universally: because they may be infinitely diversified by the situation and character of the parties; by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearing in decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion: for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature: they are facts determinable upon common grounds of reason: and Courts of Justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtleties and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same." 18. In Md. Qamruddin (supra), the High Court of Patna had held that in order to prove the case under Section 497 IPC, it is not necessary that a witness must prove having seen the sexual act of cohabitation and that the fact of sexual intercourse may be proved by circumstantial evidence as well. The Kerala High Court in K.C. Ramachandran (supra) had taken a similar view while stating that in cases relating to adultery, the chance of having an eye witness is very remote and adultery is a matter that can be proved through the surrounding circumstances emerging in a particular case. 19. In Earnist John White (supra), the evidence was that the wife went to Patna and stayed with the respondent No.2 under an assumed name. They occupied the same room. Evidence on record disclosed that there was undoubtedly a guilty inclination and passion indicated by the conduct of the respondent No.2 and the conduct of the wife as shown by the evidence was consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No.2 and, accordingly, the Apex Court set aside the judgment of the High Court and passed a decree nisi for dissolution of the marriage. 20. In Gian Singh (supra), the Apex Court had reiterated that the power possessed by the High Court under Section 482 Cr.P.C. is of wide amplitude but requires exercise of that power with great caution and circumspection and that exercise of inherent power would entirely depend on the facts and circumstances of each case to prevent abuse of process of any Court or to do real, complete and substantial justice. 21. Bearing in mind how allegation of adultery has to be proved, as indicated above, if the statements made in the complaint petition are taken, at its face value, a prima facie case of an offence under Section 497 IPC is made out. 21. Bearing in mind how allegation of adultery has to be proved, as indicated above, if the statements made in the complaint petition are taken, at its face value, a prima facie case of an offence under Section 497 IPC is made out. The learned trial Court had examined the complainant under Section 200 CrPC and had considered the report submitted by the Investigating Officer, which also included statements of two daughters of the petitioner and the complainant/respondent No.1 and on the basis thereof held that a prima facie case was established against Tagam Mibang. 22. In view of the above discussion, I am of the considered opinion that no illegality had been committed by the learned Magistrate in taking cognizance of the complaint under Section 497 IPC against the opposite party No. 1 on the basis of the materials on record available before him. 23. Resultantly, I find no merit in this petition and, accordingly, the same is dismissed.