Delhi High Court

Smt. Suresh Khullar vs Shri Vijay Khullar on 20 July, 2009

Author: V.K.Shali

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. Rev. P. No.393/2009

                                        Date of Decision : 20.07.2009

Smt. Suresh Khullar                                    ......Petitioner
                                 Through:       Mr. Rajesh Ranjan,
                                                Advocate

                                     Versus

Shri Vijay Khullar                                 ...... Respondent
                                 Through:       Nemo.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                           YES
2.     To be referred to the Reporter or not ?                NO
3.     Whether the judgment should be reported
       in the Digest ?                                        NO

V.K. SHALI, J. (Oral)

1. This is a criminal revision petition filed by the petitioner

against the order dated 13.2.2009 passed by Sh. Neeraj

Kumar Gupta, learned ASJ, Dwarka Courts discharging the

petitioner for an offence under Section 376 IPC in respect of

which the learned MM had committed the case to the

learned ASJ.

2. Briefly stated the facts of the said case are that the

petitioner as early as 1992 or so had filed a complaint

under Section 498A/406 IPC against her husband Vijay

Khullar, his parents and other relatives who were

numbering around seven in all. The entire family was

dragged in the said case on account of the matrimonial

differences/disputes arising between the petitioner, Smt.

Suresh and the respondent, her husband Vijay Khullar.

3. The learned Magistrate after recording the preliminary

evidence issued order of summoning for an offence under

Section 498A/406 IPC only against Vijay Khullar and his

mother, Bimla Rani. Bimla Rani, died during the pendency

of the case and thus only one accused Vijay Khullar-

respondent herein was left to face the trial.

4. The complainant, after the accused had put in appearance,

was permitted to adduce her evidence at the stage of pre-

charge level. After the said stage of adducing evidence at

the level of pre-charge, the learned Magistrate, Ms.

Geetanjali Goel passed an order on 27.6.2008 directing

that according to her, prima facie case under Section 376

IPC was made out against Vijay. The reasoning given by

the learned Magistrate for arriving at such a finding was

that in the statement of the petitioner it transpired that at

the time when the respondent, Vijay Khullar had

contracted marriage with the petitioner, he had obtained an

ex-parte decree of divorce against his previous wife. But

later on after the marriage of the respondent with the

petitioner, the said ex parte decree was set aside during the

subsistence of the present marriage. On the basis of these

facts, the learned Magistrate erroneously assumed that the

ex parte decree having been set aside, the consent of the

petitioner in the instant case was not a free consent and

therefore any physical relationship established by the

respondent, Vijay Khullar with the petitioner was covered

by clause 4 of Section 375 IPC and it tantamounts to

commission of offence of rape punishable under Section

376 IPC.

5. That matter was committed to the Court Sessions. The

learned Additional Sessions Judge to whom the case was

allocated, vide his detailed order dated 13.2.2009 has set

aside this order on the ground that there was no specific

and direct evidence to the effect that the ingredients of

Section 376 IPC were established, namely having sexual

intercourse with the petitioner by the respondent.

6. It was also observed by the learned Sessions Judge that

since an offence punishable under Section 376 IPC is very

serious in nature and there are no averments, it could not

be assumed from certain vague references in the statement

of the petitioner that an offence under Section 376 of IPC is

made out by the petitioner. The learned Sessions Judge

was of the opinion that no offence under Section 376 of the

IPC is made out and accordingly set aside the order of

committal and remanded the matter back to the learned

Magistrate to be tried in accordance with law.

7. The petitioner feeling aggrieved by the aforesaid impugned

order dated 13.2.2009 passed by the learned Additional

Sessions Judge has filed the present revision.

8. I have heard the learned counsel for the petitioner and

perused the record. The main contention of the learned

counsel for the petitioner is that since the ex parte decree

against the first wife obtained by the respondent, Vijay

Khullar, was set aside during the subsistence of the second

marriage, therefore the consent obtained by the respondent

from the petitioner for contracting the marriage was vitiated

by fraud and any physical relationship established by the

respondent with the petitioner constituted rape within the

definition of Section 375(4) IPC. The learned counsel for

the petitioner has also placed reliance on case titled

Bhupinder Singh Vs. Union Territory of Chandigarh

(2008) 8 SCC 531 and urged that in the said case also, the

Supreme Court was of the view that since the consent of

the victim who happened to be the second wife of the

petitioner in the said case had been obtained during the

subsistence of the first marriage, therefore offence was held

to be duly covered by Section 375 Sub-Section (4) and

accordingly his conviction and sentence was upheld by the

Supreme Court. The Supreme Court even went to the

extent of setting aside the order of the High Court whereby

the sentence of the said petitioner was reduced.

9. I have carefully considered the submissions and perused

the record. At the outset, it must be stated that the

judgment which has been relied by the petitioner is not

applicable to the facts of the present case for the simple

reason that in the case reported, there was a conviction

which was handed down by the Court against Bhupinder

Singh for an offence under Section 376 of the IPC by the

Trial Court in a police case and he was sentenced to

rigorous imprisonment of seven years by the Trial Court

which was reduced to three years by the High Court by

enhancing compensation from Rs.10,000/- to Rs.1.00 lac.

It was this order of the High Court, which was interfered by

the Supreme Court.

10. The noticeable fact in the reported case was that the

second marriage was contracted during the subsistence of

the first marriage and there was no dispute about the fact

that it was a police case which was registered against the

petitioner in the said case. As against this, in the case in

hand, it has come in evidence at the stage of pre-charge

evidence that when the marriage had been contracted

between, Vijay Khullar with the petitioner, he had obtained

decree of divorce from his first wife and the same was ex

parte. It has also come on record that it was after a period

of six months from the said ex parte decree he had

contracted the second marriage. The said ex parte decree

was set aside later in point of time after having contracting

the marriage with the petitioner between the two cases. So,

this is one of the distinguishable fact between the two

cases.

11. The second distinguishable fact is that as against the FIR

which was registered in Bhupinder Singh's case (supra) in

the present case, the complainant/petitioner had put

criminal justice machinery into motion way back in 1992

and only Sections 498A/406 IPC were invoked. There was

not even an iota of averment either about the ingredients of

offence of rape given in Section 375 IPC or mention about

the Section itself in the said complaint. It seems that at

later stage, the petitioner had become wiser to put the

respondent/accused for trial for such a heinous offence in

order to teach him a lesson.

12. Needless to say that the learned Magistrate in the instant

case also seems to have fallen into error by assuming that

in a criminal complaint case in respect of which the

warrant trial procedure is to be followed at the time of

framing of charge, only a prima facie evidence is to be seen.

It is in this context that the learned Magistrate seems to

have referred to the judgment of Supreme Court in case

titled Onkar Nath Mishra & Ors. Vs. State (NCT of

Delhi) & Anr. 2008 (1) JCC 65. The learned Magistrate

seems to be oblivious of the fact that in a warrant trial case

instituted on the basis of a complaint at the stage of

framing of the charge, quantum of proof which is required

for framing of the charge is much higher than in a State

case for the purpose of framing of the charge. This would

be evident from the fact that Section 245(1) says that in

such cases, charge could be framed only when the

evidence, which is adduced by the complainant at the pre-

charge level, is of such a nature that it is left unrebutted

would result in conviction. Therefore, the said quantum of

proof would be much higher than the prima facie case and

slightly lesser than the beyond reasonable doubt. The

Magistrate seems to have fallen into grave error on account

of her ignorance about the said provision of law. The exact

language of the Section is as under :

"245(1). If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

13. The learned Magistrate also seems to have assumed that

prima facie ingredients of Section 376 IPC are made out.

While dealing with Section 376 IPC, the Apex Court has

interpreted it specifically that it must be established that

there was penetration while as in the instant case there is

not an iota of averment made by the petitioner about the

said fact much less the evidence. Only some vague and

stray averments against the husband that he would not

indulge in sexual intercourse or use contraceptive to avoid

pregnancy could not be assumed that there was sexual

intercourse between the petitioner and the respondent. In

a serious offence like this, things could not be left for