Kumari Nirmala Chauhan and Another vs Vinod Sharma

D.B. Lal, J.—This is a petition by Kumari Nirmala Chauhan and Shrimati Belmati Chauhan under Article 227 of the Constitution of India read with Sections 401 and 482 of the Code of Criminal Procedure. It is stated that a Criminal complaint under Sections 365, 366, 498 and 494/109 of the Indian Penal Code was instituted by the Respondent Vinod Sharma against the two Petitioners and Moti Ram Chauhan and Ram Gopal Singh. It was alleged in the complaint that Kumari Kalpana Chauhan grand-daughter of the accused Petitioner No. 2 and a niece of the accused Petitioner No. 1, was reading in S.D.B. College, Simla, and sometimes in 1971 onwards she developed intimacy with the Respondent Vinod Sharma. Several letters exhibiting deep affection between them were exchanged between the parties and some of the letters were produced along with the complaint. It was alleged that the matter came to such a climax that on 18-11-1972 Kumari Kalpana Chauhan performed marriage with the Respondent at Karaida Temple on the Prospects Hill, Simla. One Pt. Satya Parkash performed the marriage between them. Several friends of either party were present at that occasion. In token thereof a photograph was taken and garlands were exchanged by the newly married.

The case of Vinod Sharma was that Kumari Kalpana Chauhan informed the Petitioner No. 1 on that very day and told her of her marriage with the Respondent. The Petitioner No. 1 thereafter invited them at the Quality restaurant where they went along with a few friends. The two Petitioners were present at the Quality restaurant. After giving treatment to Kalpana Chauhan and the Respondent, the two Petitioners asked Kalpana Chauhan to go with them to their house so that the fact regarding marriage could be divulged to the family. The Respondents case was that the two Petitioners thereafter brought Kalpana Chauhan to their house, but detained her thereafter. The other two accused Moti Ram Chauhan and Ram Gopal Singh subsequently played their part by abetting the two Petitioners from concealing Kalpana Chauhan and detained her from the company of the Respondent.

After suffering such a forced separation from Kalpana Chauhan, the Respondent came to High Court with a petition u/s 491, Code of Criminal Procedure, read with Article 226 of the Constitution. In that proceeding under habeas corpus, Kalpana Chauhan was produced in Court, and a Division Bench recorded her statement. However, it was found that she was not being detained by these accused without her consent and that she was free to move out; the petition under habeas corpus was not pursued and the same was dismissed. Thereafter the present complaint was filed by Vinod Sharma against the four accused including the two Petitioners for the respective offences.

The learned Chief Judicial Magistrate recorded several witnesses on behalf of the complainant. He also perused the letters exchanged between the parties. Kalpana Chauhan was also examined before the Magistrate. She denied a few of the letters and the same were subsequently examined by a hand-writing expert Shri S. N. Sen. A report was received and these letters were found in the handwriting of Kalpana Chauhan. After considering the entire evidence, the Chief Judicial Magistrate held that there were sufficient grounds for proceeding against the two Petitioners for the offence under Sections 498/109 and he has issued process u/s 204 of the Code of Criminal Procedure. Against that order, the two Petitioners have come up in this Court in the present petition.

Section 397 of the Code of Criminal Procedure strictly prohibits revision to High Court against any interlocutory order by the Magistrate. There can be no dispute that the order summoning the two accused was an interlocutory order. The learned Counsel refers to Section 401 and submits that powers of the High Court in revision are described under that Section, meaning thereby that the prohibition contained in Section 397 is rendered nugatory by Section 401. I do not agree with this reasoning. What has been prohibited u/s 397 cannot be held permissive u/s 401. It is nowhere provided in Section 397 that a revision against an interlocutory order is protected u/s 401. That apart, both these Sections stand independent to each other and have the same compelling value. It is, therefore, idle to contend that the revision against an interlocutory order when it is prohibited u/s 397 will still be maintainable u/s 401.

Similar appears to be the. position u/s 482 of the Code of Criminal Procedure. What has been prohibited u/s 397 cannot be held permissible under inherent jurisdiction of the High Court. There can be no abuse of process when revision itself is not permissible u/s 397. Therefore, the Petitioners are incorrect when they press into service Section 482 which deals with inherent power of the High Court.

The Petitioners naturally fall back upon Article 227. For that again, they have to point out any error as to jurisdiction. If the Magistrate exercised jurisdiction where there was none or failed to exercise jurisdiction where there was one, something could be stated that error regarding jurisdiction was committed and the subordinate tribunal was required to be set right under Article 227. But such is not the position in the present case. The Magistrate had the jurisdiction to entertain the complaint. He considered the evidence adduced before him. He held that sufficient grounds for proceeding existed. As a result, the process was issued u/s 204. The learned Counsel then submitted that upon the very allegations made in the complaint as well as in the statements of witnesses, no offence u/s 498 was made out. This does not appear to be so. u/s 498 the two Petitioners should be held to have taken or enticed away Kalpana Chauhan who should be proved to have married Vinod Sharma. That apart, if the two Petitioners can be held to have concealed or detained Kalpana Chauhan, with the specific intention, they would again be liable for the offence under that Section. The witnesses Vinod Sharma (P.W. 1), Kishori Lal (P.W. 2) and Shishu Pal. (P.W. 5) have all stated that the two Petitioners asked Kalpana Chauhan to visit them at the Quality restaurant. Thereafter they took her to their house, and that was prima facie sufficient to give a ground for proceeding against them.

The letters Ex. P.W. 3/1, Ex. P.W. 3/3, and Ex. P.W. 3/4 do indicate that the writer had deep affection for Vinod Sharma and if these letters belonged to Kalpana Chauhan, it appears sufficient intimacy developed between them. The photograph (Ex. P.W. 3/2) decidely shows Kalpana Chauhan with a garland along with the Respondent. At any rate, the case has yet to go through the trial. The evidence produced will prove or disprove as to whether the offence under Sections 498/109 was committed by the Petitioners. They may ultimately succeed in escaping the consequence. Whatever I have stated in this judgment shall not be taken to prove or disprove anything against them. It suffices to say that the plea that no case is made out even upon the complaint and on the basis of the statements of witnesses, is not borne out from the record. Unless it is held that prima facie no case was made out or that no legal evidence existed to prosecute the Petitioners, or that there was any legal bar to prosecute them, or that any other manifest injustice has resulted, jurisdiction under Article 227, which is exceptional and extraordinary, cannot be exercised. The High Court is not sitting in revision or appeal against the preliminary order made by the Magistrate. It cannot be stated that any fallacious or spiteful criminal prosecution has resulted.

With these observations, I do not think the petition is either maintainable under Article 227 of the Constitution. In the result, the petition appears to be without any force, and the same is dismissed.