Allahabad High Court
Smt Kavita vs State Of U.P. And Another on 9 January, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:4552
Court No. - 73
Case :- APPLICATION U/S 482 No. - 19091 of 2024
Applicant :- Smt Kavita
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Atul Tej Kulshrestha,Vinay Singh
Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been preferred against the summoning order dated 08.11.2023, passed by learned Civil Judge (S.D.)/F.T.C., Baghpat in Complaint Case No.2381 of 2023 (Smt. Sumit Rathi Vs. Kavita), Police Station- Baraut, District- Baghpat. The order dated 01.05.2024, passed by learned Additional Sessions Judge/F.T.C., Court No.1, Baghpat in Criminal Revision No.14 of 2024, is also being impugned, whereby revision against summoning order dated 08.11.2023 has been dismissed.
3. It has been submitted by learned counsel for the applicant that impugned complaint has filed by the opposite party no.2 making false and baseless allegations. The allegation that applicant was already married with one Bittu @ Arun and she solemnized second marriage with one Sanjeev, before her marriage with opposite party no.2, is wholly false. It was submitted that in the complaint, there are no pleadings about any ritual of Saptapadi in respect of alleged first and second marriage of applicant with aforesaid persons and thus no prima-facie case under Section 494 IPC is made out. Learned counsel has referred case of Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah and Another (2001) 3 Supreme Court Cases 13 and submitted that for prosecution under Section 494 IPC, it is necessary to plead about alleged rituals and Saptapadi of alleged first marriage. It was submitted that revisional court has also not considered the facts and law in correct perspective and dismissed her revision. It was submitted that both the impugned orders are against facts and law and thus liable to be set aside.
4. Learned counsel for the opposite party no.2 has opposed the application and submitted that there is sufficient evidence on record that before her marriage with opposite party no.2, the applicant was married with one Bittu @ Arun and thereafter she has married with one Sanjeev and without getting divorce from them, she has married with opposite party no.2. It was stated that in inquiry under Section 202 Cr.P.C., witness Vikas Kumar has clearly stated that applicant was married with Bittu @ Arun and he has attended that marriage and that marriage was solemnized by necessary rituals including Saptapadi. He has also stated that no divorce has taken place between applicant and said Bittu @ Arun. It was submitted that in view of statement of Vikas Kumar and other material on record, a prima-facie case is made out against the applicant. It is further submitted that revision against summoning order has already been dismissed and in such circumstances, the interference under Section 482 Cr.P.C. can be made only in exceptional circumstances.
5. I have considered the rival submissions and perused the record.
6. At the outset it may be mentioned that by impugned order dated 08.11.2023 the applicant was summoned for offence under Section 494 IPC and thereafter, the applicant has preferred a criminal revision against aforesaid order dated 08.11.2023, which has been dismissed by learned Additional Sessions Judge/F.T.C., Court No.1, Baghpat vide impugned order dated 01.05.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.
7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held:
"3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."
8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that-
" .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside."
9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:-
"In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''
10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482Cr.P.C. but High Court should not act as a second Revisional Court under garb of exercising inherent powers. While exercising inherent powers in such a matter, the High Court can interfere only where it is satisfied that if complaint is allowed to be proceeded with, it would amount to abuse of the process of Court or that interest of justice otherwise call for quashing of the charges. When High Court on examination of record finds that there is grave miscarriage of justice or abuse of process of the Court or the required statutory procedure has not been followed with or there is failure of justice, it is the duty of High Court to have corrected it at the inception lest grave miscarriage of justice would ensue. It is therefore to meet the ends of justice or to prevent abuse of process that High Court is preserved with inherent powers and would be justified under such circumstance to exercise inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and it has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court can not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
11. In case of Dr. Surajmani Stella Kujur (supra), the Hon'ble Apex Court has held as under:-
"Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non- est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute."
12. In the instant matter, there are allegations that the applicant before her marriage with opposite party no.2, was already married with one Bittu @ Arun. In inquiry under Section 202 Cr.P.C. witness Vikas Kumar has clearly stated that applicant was married with Bittu @ Arun and he has attended that marriage and that marriage was solemnized by performing necessary rituals including Saptapadi. He has also stated that no divorce has taken place between applicant and said Bittu @ Arun. As stated above revision against summoning order has already been dismissed. In view of attending facts and circumstances, applicant does not get any benefit from the aforesaid case of Dr. Surajmani Stella Kujur (supra). The revisional Court has also considered entire facts and position of law and revision was dismissed by a reasoned order. No patent illegality or perversity could be shown in the impugned orders. As criminal revision against aforesaid order dated 08.11.2023, has already been dismissed, thus in such situation the interference under Section 482 CrPC can only be made when there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice. Applying the principles set out in the judgments referred above to the case on hand, this Court is of the view that there is no compelling circumstance or exceptional circumstance warranting invocation of section 482 Cr.P.C. by this Court. Therefore, this application under section 482 Cr.P.C. deserves to be dismissed.
13. The application u/s 482 Cr.P.C. is hereby dismissed.
Order Date :- 9.1.2025
SP/-/S K Srivastava
