Ms. Gurbax Singh vs Lt. General H. Kaul

A.L. Vaidya, J.—The present Petitioner preferred a complaint under Sections 376/493/494/420/498-A/500 IPC against the present Respondent. The trial Magistrate, after recording the preliminary evidence came to the conclusion that there were sufficient grounds to proceed against the accused, Lt. General H. Kaul (Retd.), u/s 493/420 IPC only.

The present Petitioner as well as the accused assailed the aforesaid order of the trial Magistrate whereby the accused was ordered to be sued for the commission of offences under Sections 493/420. However, the impugned order for which the trial Court had declined to proceed against the accused under the remaining sections of law was held to be justified by the learned Sessions Judge and, therefore, the revision petition which was preferred by the complainant, was dismissed while the revision petition which had been preferred by the accused was allowed and, accordingly, the complaint was ordered to be dismissed.

The present petition u/s 482 of the Code of Criminal Procedure has been preferred by the complainant assailing the aforesaid order passed by the learned Sessions Judge(Forest) Shimla on various grounds.

I have heard the learned Counsel for the parties and have also scrutinized the record.

In order to appreciate the points submitted before this Court it is at the very outset essential to look into the allegations made by the complainant in her complaint.

The complainant is the widow of late A. General Gurbax Singh and, according to her, the accused systematic made such approaches in order to develop intimacy with her which intimacy ultimately led to a mock marriage between the Complainant and the accused in October 1986. It was also averred that the complainant came in touch with the accused somewhere in the year 1984-85 when she returned from Australia. According to the complainant, she succumbed to the approaches of the accused and apart from personal relationship so developed, the accused started corresponding with the complainant making evident that he was head over heals bent upon marrying her and in this behalf the accused represented to her that his love for her was divine and could be equated to that of Shiva and Parvati and hence could never fail. The complainant filed the copies of those letters with the complaint.

It was also averred that the accused took the complainant to Srinagar and went to Shankracharya Temple and Kheer Bhawani temple (Tulmul) where he pledged his life to the complainant before the deities in the temple and filled the Maang of the complainant with Sindhoor to completely win her confidence. According to the complainant, in the month of October 1986 the accused at the residence of Shri R. Swamy ( House No. 3062, Sector 40-D, Chandigarh) went through a form of marriage with the complainant in the presence'' of Ms. Pushpa Swami, Ms. Kamla Naru, Mr SushiL Kumar and S. Harbans Singh and formally accepted the complainant as his legally wedded wife.

The complainant further averred in her complaint that on 22nd May,1987, after the marriage of his daughter, the accused came to the house of the complainant at Shimla and cohabited with her and lived with her as her husband for ail intents and purposes till 12th August,1987, when he deserted the complainant in a most mysterious manner. According to the complainant, she made frantic efforts to trace the accused and was shocked to learn that he had gone back to stay with his previous wife and on this the complainant was aghast to learn that the accused had a legally wedded wife with whom his marriage was legally subsisting. She further alleged in the complaint that the accused had intentionally concealed this fact from the complainant and had all along been representing to her that he was a divorcee and there was no legal or any other impediment in his marriage with the complainant. According to the complainant, had she known that the accused was a married person and whose marriage had not been legally dissolved, she would never have developed any relationship with him, least of all marrying him. The complainant has also filed copies of the petition u/s 13 of the Hindu Marriage Act along with application under Order 23 Rule 1 Code of Civil Procedure. She averred that she was ignorant of the said proceedings. These divorce proceedings were pertaining to the original wife of the accused.

The complaint very specifically averred in the complaint that the accused with mala fide intention obtained the consent of the complainant for marriage and sexual intercourse fully knowing that he was not her husband and that her consent was so given as she believed that the accused was lawfully married to her. The marriage of the accused with the complainant was void abinitio and thus the accused has committed the offence of rape against the person of the complainant. It was also pleaded in the complaint that on account of fraudulent and deceitful marriage with the complainant, knowing fully well that he was not lawfully married to her, the complainant was wrongly made to believe that she was lawfully married to the accused, thereby inducing a belief of lawful marriage, the accused cohabited and had sexual intercourse with her by obtaining her consent deceitfully. According to the complainant, the accused at that relevant time had a wife with whom his marriage was legally subsisting and the accused thus committed the offence of marrying the complainant during the life time of his first wife. The accused mala fide concealed the factum of his former marriage from the complainant. It was also averred that the accused enticed the complainant and by his intentional acts of omission and commission subjected the complainant to cruelty and was guilty of an offence u/s 498-A IPC.

It was also pleaded in the complaint that from May 1987 the accused conducted himself as the husband of the complainant she treating him as such gave the entire control of her home and valuable property etc. to the accused. The keys of the Godrej almirah, wherein she had kept her jewellery and cash, were also handed over to the accused by her in good faith and total trust but, however, in August 1987 the accused while deceptively parting from the complainant removed jewellery worth more that Rs. 50,000/- and Rs. 25,000/- as cash without the consent of the complainant and thereby committed an offence of theft as the property was removed with dishonest intention. The complainant also pleaded that after winning the confidence of the complainant, the accused dishonestly induced her to part with a sum of Rs. 15,000/- for the purchase of Maruti van for his daughter, which sum the complainant would never have given had she known the fraudulent intention of the accused. According, to the complainant, the keys of the said almirah were sent to her through Brig. C. Goswami, Dy. GOC Army Headquarters, Shimla.

According to the complainant, on account of the behaviour of the accused she became nervous, wreck and did not know what to do with herself and for about more than six months thereafter she was on tranquillisers and she had also to look after her aged mother who suffered a heart attack on account of the conduct of the accused towards her daughter and it was only with the lapse of time that the complainant was able to compose herself and in February 1988 she issued a notice to the accused, a copy where of was filed along with the complaint. It was also alleged in the complaint that on receipt of the said notice the accused promised the complainant that he would tender written apology to her and also return to the complainant the jewellery and cash removed by him dishonestly but the accused failed to do so and embarked upon dilatory tactics to put off the complainant on one ground or another. The reply of the accused has also been filed with the complaint. The complainant again issued a notice to the accused in August,1988 but the accused did not care to reply to the said notice but again assured the complainant that he would soon tender the requisite apology and return the valuables removed by him, as stated above. According to the complainant, the accused assured that this would be done by the end of November 1988 positively but the accused failed to do so, hence the present complaint. For the delay in the filing of the complaint, it has been averred that it could not be filed earlier because of mental condition of the complainant, sickness of the mother of the complainant and false assurances given by the accused.

In support of her preliminary evidence, the complainant examined herself, alongwith Shri R. Swamy and Sardar Harbans Singh.

Apart from the oral preliminary evidence which was examined by producing aforesaid witnesses including the complainant herself, certain document were also tendered in evidence as a part of preliminary evidence. Ex. Cw1/A is the photostat copy of the letter dated 15th May,1987; Ex. Cw1/B is the photostat copy of another letter dated 15th May,1987, written by the accused and Ex.CW1/C is the third photostat copy of the letter dated 22nd May,1987, addressee to the complainant by the accused. All thes letters are nothing but a sort of love letters written by one lover to another. These letters do not even reflect that the parties were husband and wife but only lover and beloved.

The other documents filed were the certified copy of the petition, preferred u/s 13 of the Hindu Marriage Act by the accused against his wife, Smt. Manju Kau seeking dissolution of their marriage by decreed of divorce dated 6th June,1987; certified copy o the order dated 19-8-1987 passed in the aforesaid petition of divorce whereby the Petitioner was allowed to withdraw the petition on account of some settlement between the parties and the petition accordingly was dismissed as withdrawn. There is another certified copy of the petition preferred under Order 23 Rule 1 read with Section 151 CPC by the present accused in the aforesaid divorce proceedings wherein it has been alleged that after filing the petition the Petitioner having been persuaded by family friends had decided not to press the petition in view of the mutual arrangement/settlement between the parties. Apart from that, there are certain affidavits of the witnesses who witnessed the marriage of the complainant with the accused, as alleged by her in the complaint. The photostat copies of the notice issued on behalf of the complainant to the accused dated 13th February,1988, reply thereto sent by the accused on 8-8-1988 and another notice dated 25th February,1988 sent by the complainant, have also been filed. These notices pertained to the facts as already disclosed in the complaint by the complainant.

A legal objection has been raised on behalf of the Respondent "that the present Petitioner had already availed of an opportunity to assail the order passed by the trial Magistrate through a revision petition preferred before the Sessions Judge, Shimla, who, after hearing the parties, disallowed that revision petition and as a consequence thereof dismissed the complaint and the present relief sought u/s 482 Code of Criminal Procedure could not be made legally available to her on account of the bar in this behalf provided u/s 397 Code of Criminal Procedure. It is not so simple a matter, as has been contended by the learned Counsel for the Respondent during these proceedings. In order to appreciate the point in Issue being submitted, the relevant provisions of the Code of Criminal Procedure have to be taken note of:

Section 397 of the Code reads as under:

Calling for records to exercise powers of revision.-(I) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge, for the purposes of this Sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application, under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Section 483 of the Code, which deals with the inherent powers of the High Court, runs as under:

Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Both these provisions are independent in nature. Section 397(3) bars further petition, to be preferred by the same person in the other forum, meaning thereby that a revision petition once preferred before the Sessions Judge again could not be so submitted before the High Court. The object of Section 397(3) is very much apparent. It only prevents a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of subordinate Criminal Court has been afforded option either to approach the Sessions Judge or the High Court and once he selects to exercise that option before one forum, he is precluded from invoking the revisional jurisdiction of the other forum. The language of Section 397(3) of the Code in this behalf is crystal clear.

However, on the other hand Section 482 of the Code deals with the inherent powers of the High Court. This is altogether an independent provision and not at all, in a way, connected with the provision of Section 397 Code of Criminal Procedure, as referred to earlier. The inherent powers by the High Court have to be exercised as provided u/s 482 Code of Criminal Procedure Following principles may be noticed in relation to the exercise of inherent powers of the High Court.

(i) The powers to be exercised by the High Court be exercised in very exceptional cases;

(ii) The powers to be made use of in case the Code of Criminal Procedure does not provide specifically the relief asked for;

(iii) The High Court to exercise this inherent power in order to prevent abuse of process by any Court or to secure substantial justice.

In the aforesaid background, it has been submitted on behalf of the Respondent that Section 397(3) gives finality to the order passed by the Sessions Judge in the revision petition preferred by the parties. By invoking powers u/s 482 Code of Criminal Procedure would mean to ignore the express provision, as envisaged u/s 397(3) Code of Criminal Procedure I think such an inference will not be legally available. As already observed. Section 482 Code of Criminal Procedure is an independent provision.

Admittedly, there is no specific provision in the Code whereby the order passed by the learned Sessions Judge u/s 397 Code of Criminal Procedure could be assailed. There is no doubt that Sub-section (3) of Section 397 of the Code gives finality to that order but in case the so called final order has been passed, assuming for argument''s sake, by abusing the process of the Court or otherwise it has resulted in substantial injustice to a particular party, I think such an order comes within the ambit of Section 482 Code of Criminal Procedure and can be assailed by any party. It has to be ascertained before invoking the powers u/s 482 Code of Criminal Procedure that the said order has done grave and substantial injustice to a party and by passing such an order the process of the Court has been seriously abused. What would be the remedy available to a party if the order of learned Sessions Judge passed in a revision petition suffers from the aforesaid legal lapses, does the finality attached to the order u/s 397(3) Code of Criminal Procedure impose a bar upon a party to assail such an order under the inherent powers of the High Court? The answer would be in the negative. In such an eventuality the High Court''s inherent powers can definitely be invoked in order to seek redress against such an order suffering from aforesaid legal lapses. In that context facts and circumstances of an individual case have to be taken note of in order to come to a conclusion whether it would be justified for this Court to invoke the powers u/s 482 Code of Criminal Procedure.

A bare reading of Section 482 of the Code clearly indicates that the High Court will interfere, if necessary, when something contrary to law has been done by the subordinate Court.

The opening words of Section 482 of the Code records "nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court..."This expression "nothing'' in this Code includes Section 397 as well. Therefore, in a given case the High Court can exercise its inherent powers u/s 482 of the Code. Obviously, on the basis of the provision of Section 397 Code of Criminal Procedure second revision petition could not have been filed in the case and that is why recourse to Section 482 of the Code seems to have been made.

Certain precedents have been cited in this behalf.

In Madhu Limaye v. State of Maharashtra (AIR 1978 S.C. 47), his lordship Justice Untwalia, while dealing with the proposition, made the following observations in paragraphs 8 and 10 of the judgment, which are being reproduced here-in-below:

u/s 435 of the 1898 Code the High Court had the power to "call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court", and then to pass the necessary orders in accordance with the law engrafted in any of the sections following Section 435. Apart from the revisional power, the High Court possessed and possesses the inherent powers to be exercised exdebito justitiae to do the real and the substantial justice for the administration of which alone Courts exist. In express language this power was recognized and saved in Section 561A of the old Code. u/s 397(1) of the 1973 Code, revisional power has been conferred on the High Court in terms which are identical to those found in Section 435 of the 1898 Code. Similar is the position apropos the inherent powers of the High Court. We may read the language of Section 482 (corresponding to Section 561A of the old Code) of the 1973 Code. It says:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevents abuse of the process of any Court or otherwise to secure the ends of justice." At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

As pointed out in Amar Nath and Others Vs. State of Haryana and Another, the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above'', the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.

Raj Kapoor and Others Vs. State and Others, made the following observations, which would be relevant for appreciating the controversy in hand:

The inherent power of the High Court u/s 482 does not stand repelled when the revisional power u/s 397 overlaps. Nothing in the Code not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, when a specific provision is made eas'' resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. There is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court''s jurisdiction. The limitation is self -restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the Court in the face. In between is a tertium quid, as for example, where it is more than a purely interlocutory order and less than a final disposal. In such case the inherent power can be exercised.

The apex Court, again, in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, dealt with this proposition and came to the conclusion that Section 482 has a different parameter and is a provision independent of Section 397 Code of Criminal Procedure It was further observed that inherent powers u/s 482 can be exercised only when no other remedy was available to the litigant and not where a specific remedy is provided by the statute and that the power being an extraordinary one, it has to be exercised sparingly.

Learned Counsel for the Respondent, in support of his submissions, has tried to find support from apex Court''s judgment in Dharampal and others Vs. Smt. Ramshri and others, In this case it has been held that the revision assailing the order of the Magistrate was filed which was dismissed by the Sessions Court and, therefore, second revision petition against the order of Sessions Judge, before the High Court should not be entertained in exercise of its inherent power u/s 482 Code of Criminal Procedure The ratio of the ruling is definitely correct that in exercise of inherent power second revision could not be entertained as there was a bar for entertaining such a second revision created by Section 397(3) of the Code. The question that fell for consideration of their lordships of the apex Court in the aforesaid case was whether the High Court could have used the power u/s 482 Code of Criminal Procedure and entertained the second revision at the instance of the Respondent. In that background it was held that Section 397(3) bars the second revision application by the same party and that the inherent power u/s 482 Code of Criminal Procedure could not be invoked for exercising powers which were expressly barred by the code and, therefore, their lordships came to the conclusion that the High Court had clearly erred in entertaining the second revision at the instance of the Respondent. There is absolutely no dispote to the aforesaid proposition laid down in Dharampal and Ors. (supra). In the reported case it has not been referred and discussed at all that inherent powers u/s 482 Code of Criminal Procedure could be invoked even for assailing orders passed in a revision preferred u/s 397 Code of Criminal Procedure especially when the order, alleged to have been assailed, could be so done within the parameter of Section 482 Code of Criminal Procedure. This aspect of the matter has been considered in other cases cited earlier and discussed, as above. Therefore, the applicability of Dharampal and others Vs. Smt. Ramshri and others, will not at all be available in so far as the facts of the present case are concerned. These facts have to be dealt with in accordance with the provisions of Section 482 of the Code under which the Petitioner has selected to assail the order passed by the Courts below.

On the basis of the aforesaid principles laid down in the cited cases the ratio referred therein has to be appreciated in the background of an individual case and, more particularly in the case under reference. These powers, no doubt, have to be exercised sparingly but then it will depend upon the factual side of each individual case.

The complaint in the present case was preferred before the trial Court on 26th December, 1988. Needless to say, as per case of the complainant the marriage between the parties took place in October 1986 and thereafter, after the marriage of the daughter of the accused, as per complainant, he resided with her as her husband for all intents and purposes till 12-8-1987. Thereafter, the complainant was alleged to have been deserted by the accused. Some letters were written by the accused to the complainant, as referred to earlier. These letters were, admittedly, written after the so called marriage averred by the complainant.

The complainant examined herself, alongwith other witnesses, in support of her case and tendered certain documents also. Learned Sessions Judge, after appreciating the said preliminary evidence, came to the conclusion that no criminal offence was made out against the accused and, accordingly, dismissed the complaint.

In the present proceedings u/s 482 Code of Criminal Procedure this Court does not find, while going through the records and the order of the learned Sessions Judge, any occasion to invoke the power conferred u/s 482 Code of Criminal Procedure The order under reference does not suffer from any legal infirmity and does not amount to any substantial injustice and it cannot be said to be an order resulting in the abuse of the process of law.

There is no dispute to the proposition that on the basis of the preliminary evidence examined by the complainant if there appears to be sufficient grounds for proceeding against the accused, summons or warrant could be issued to the accused.

Before the material on record is appreciated, let the statement of the complainant made before the trial Magistrate as a preliminary evidence be taken note of The entire statement may not be referred here but the main aspect regarding the earlier marriage of the accused and the knowledge of the complainant to that effect can safely be referred. It has been the case of the complainant, as disclosed in the complaint, that she never knew and she was kept in dark that the accused was a divorce and with that belief the intimacy between the parties developed and marriage between them was also solemnized in October 1986.

The complainant very specifically deposed before the trial Magistrate on oath that after the marriage the accused shifted to her house at Shimla and both of them lived as husband and wife till August 1987 when the accused deserted her in most mysterious manner. She further added that when the accused deserted her she made efforts to trace him and was shocked to know that he had gone back to live with his previous wife and that his earlier marriage was legally subsisting. She has been very specific in deposing that had she known that the accused was already a married person having a living wife, she would never have married him or had any sexual relations with him. According to her, the accused malafide concealed the factum of his previous marriage from the complainant.

It may not be out of place to refer here that in the complaint the case of the complainant was that she was aghast to learn that the accused had a legally wedded wife with whom his marriage was legally subsisting and that the accused had intentionally concealed this fact from the complainant and had all along been representing to her that he was a divorcee and that there was no legal or other impediment in his marriage with the complainant. Here before the Court, while making a deposition on oath, the complainant nowhere stated that the accused had represented to her that he was a divorcee. On the other hand she specifically stated that had she known that the accused was already; a married person, having a living wife, he(sic she)would never have married him. She further stated that the accused had mala fide concealed from her the factum of his previous marriage. I think the statement of concealment of marriage by the accused made by the complainant cannot be accepted as a truthful version even at this stage. The records and the complaint very clearly reflected that the complainant knew very well that the accused was a married person. Para 5 of the complaint recorded that on 22.5.1987, after the remarriage of his daughter, the accused came to the house of the complainant at Shimla. This only meant that the accused was a married person having a daughter. In case it was known to the complainant, it was with her tacit consent that inspite of that knowledge that the relations, as alleged, were developed between the parties. Now it does not lie in the mouth of the complainant to say that she was kept in dark by the accused that he was a married person, having a living wife and this version of the complainant cannot be believed to be a correct version. The complainant before the trial Court stated on oath that by winning her confidence the accused had dishonestly induced her to part with a sum of Rs. 15,000/- for the purchase of a Maruti van for his daughter, meaning thereby that the complainant knew that the accused had a daughter. It appears, the conduct of the parties reflected that inspite of the previous marriage of the accused, the parties developed some relations and solemnized marriage keeping the other persons, who were the witnesses to the said marriage, away from knowing the fact of the earlier marriage of the accused.

It may be very specifically pointed out here that the letters referred to above were written after the so called marriage. If the parties, after the marriage claimed themselves to be husband and wife, where was the necessity of not disclosing this fact in the letters, referred to above. As earlier pointed out, these letters were written in May 1987 and if one goes through them one cannot even remotely have the inference that these were the letters written by a husband to his wife. It has come in evidence also that just after the marriage of the parties, they did not reside together. Had the complainant been not aware of the fact that the accused had a living wife, she would have definitely resided with the accused after such marriage because in normal course the husband and wife should have resided together after the marriage unless they were prevented from doing so by the circumstances which were beyond their control.

In the letters, alleged to have been written by the accused to the complainant, it has been very specifically referred that the accused shall be definitely with the complainant towards the end of the month for a while and then things would move just after that till they were together for ever as they had decided. The accused also wrote that he was trying to hasten the matter and be with the complainant soon. In the letter dated 22nd May, 1987, it has been written by the accused that it was painful now to be away from her and the next few days were going to be full of turmoil but then it could not be helped and one had to go through it to reach one''s goal. The learned Sessions Judge has referred, in detail, these letters. The extracts of these letters would go to show that the complainant and the accused had not united together on account of some hurdle in their way and for removing that there was going to be turmoil and the accused was ready to face the same in order to enable him to live together with the complainant for ever.

Thus, on the basis of the aforesaid circumstances at the most it could be inferred that the complainant and the accused might have undergone a marriage ceremony in the house of R. Swami but it is difficult to believe that the complainant did not know that the accused was not a divorcee.

The statements of other witnesses were in regard to the alleged marriage solemnized at Chandigarh. The documents also pertained to some notices issued by the complainant and the response given by the accused and certified copies of some divorce petition referred earlier.

Thus, on the basis of the preliminary evidence it cannot be said that the complainant did not know before August 1987 or before the alleged marriage that the accused was not a divorcee. So the alleged deception on the part of the accused is not made out from the preliminary evidence.

The sum and substance of the preliminary evidence examined lead to the sole inference that there was a mutual trust between the parties knowing fully well about one another''s background which trust due to some reason was eroded all of a sudden which has given rise to all these proceedings. In such a background the circumstances brought on record do not result in the commission of any crime alleged to have been committed by the accused, more so the offences for the commission of which he has been accused in the complaint.

Learned Sessions Judge''s order under reference has been passed after properly appreciating the evidence and the law in this behalf and that being so it does not come within the ambit of Section 482 Code of Criminal Procedure requiring interference of this Court on the basis of the provision of law, already discussed above. The present petition, as such, stands dismissed.