Case Note & Summary
The petitioner, father of Supriya, filed a criminal writ petition challenging the order of the Additional Sessions Judge, Ahmednagar in Criminal Revision No.8 of 2021, which had quashed the process issued against respondent Nos.1 to 4, the family members of accused Jagdish, in a private complaint alleging cheating and criminal breach of trust. The dispute arose from the marriage of Supriya with Jagdish, which was allegedly induced by concealment of Jagdish's prior subsisting marriage with Amita Nimbalkar. The petitioner's daughter Supriya had earlier married on 09.12.2012 and divorced in 2014. In August 2017, accused Kaushik, father of Jagdish, approached the petitioner proposing marriage between Jagdish and Supriya. Kaushik disclosed that Jagdish had married Yogita Tupe but had divorced her and showed divorce papers. Prior to the marriage, accused Jagdish, Kaushik, and respondent Nos.1 to 4, who are Jagdish's mother, two sisters, and brother-in-law, visited the petitioner's house and participated in discussions regarding the marriage settlement. The marriage was solemnized on 21.11.2017. After 8-10 months, Supriya discovered through an advocate's reply that Jagdish had a first wife, Amita Nimbalkar, and that marriage was subsisting. The petitioner sought explanation but received no satisfactory answer. He filed a private complaint under Sections 420, 406, 109, 34 of the Indian Penal Code before the Chief Judicial Magistrate, Ahmednagar. The Magistrate referred the complaint to police for enquiry under Section 202 of the Code of Criminal Procedure, 1973. The police enquiry allegedly revealed that Jagdish's first marriage with Amita Nimbalkar was performed in 2012, a second marriage with cousin Yogita Tupe in 2014, and the third marriage with Supriya on 21.11.2017. The Chief Judicial Magistrate issued process against all accused, including respondent Nos.1 to 4. The Sessions Court in revision partly allowed the challenge and set aside the process against respondent Nos.1 to 4, holding that they had no knowledge of the previous marriage. The petitioner challenged this order in the High Court. The legal issues before the High Court were whether the Sessions Court was justified in setting aside the process against the family members and what standard applies at the stage of issuance of process. The petitioner's counsel argued that respondent Nos.1 to 4, being close relatives, knew about the prior marriages and actively concealed the fact; the police enquiry report showed sufficient material. The respondents' counsel contended that they were not aware of the first marriage as it was performed without consent of parents and relatives, and that they had disclosed the second marriage and divorce. The High Court, after examining the complaint and material, held that the relationship of mother, sisters, and brother-in-law made it unbelievable that they were unaware of Jagdish's first marriage. The Court noted that the police enquiry report and witness statements, including the statement of respondent No.3, indicated knowledge of the first marriage. The Sessions Court had ignored this material and arrived at a perverse finding. Relying on the principle in Jacob Harold Arnha & Anr. Vs. Mrs. Vera Aranha & Anr., (1979) Cr.L.J.974, the Court reiterated that at the stage of issuing process, the Magistrate is not to determine ultimate conviction or acquittal but only whether a prima facie case exists. The High Court set aside the Sessions Court order and restored the Chief Judicial Magistrate's order issuing process against respondent Nos.1 to 4 for offences under Sections 420, 406, 109, 34 of the Indian Penal Code.
Headnote
A) Criminal Procedure - Issuance of Process - Standard of Prima Facie Case - Code of Criminal Procedure, 1973, Sections 202, 397 - At the stage of issuing process, the Magistrate is not required to determine whether the accused will ultimately be convicted or acquitted, but only whether there are sufficient grounds to proceed further. The complaint and police enquiry report revealed prima facie material that accused Jagdish had contracted previous marriages including a subsisting first marriage with Amita Nimbalkar, and that the respondent family members participated in marriage settlement discussions; therefore, the Chief Judicial Magistrate rightly issued process. Held that the Sessions Court erred in assessing probability of conviction instead of prima facie case (Paras 11-12). B) Criminal Procedure - Revisional Jurisdiction - Perverse Findings and Ignoring Material Evidence - Code of Criminal Procedure, 1973, Section 397 - The Sessions Court in revision set aside the process against respondent Nos.1 to 4 solely on the defence of lack of knowledge, without considering the police enquiry report and witness statements which indicated that respondent No.3 learned about the first marriage through the second wife and that the mother and sisters were closely related to accused Jagdish. The High Court held that this finding was not only incorrect but perverse and required to be set aside (Paras 8-11). C) Indian Penal Code - Cheating and Criminal Breach of Trust - Common Intention and Abetment - Indian Penal Code, 1860, Sections 420, 406, 109, 34 - Family members who actively participate in marriage settlement discussions and conceal a prior subsisting marriage can be proceeded against for the alleged offences. The relationship of mother, real sisters, and brother-in-law, coupled with evidence of knowledge of the prior marriages, constituted sufficient prima facie material to issue process. Held that the order of the Chief Judicial Magistrate issuing process against respondent Nos.1 to 4 was to be restored (Paras 8-9, 12).
Issue of Consideration
Whether the Additional Sessions Judge was justified in setting aside the order of issue process against respondent Nos.1 to 4 (family members) in Criminal Revision No.8 of 2021 on the ground that they had no knowledge of the prior subsisting marriage, and whether at the stage of issuing process the Magistrate is required to determine the ultimate conviction or only the existence of a prima facie case.
Final Decision
The High Court allowed the criminal writ petition, set aside the Sessions Court's order dated 09.02.2021 in Criminal Revision No.8 of 2021, and restored the Chief Judicial Magistrate's order issuing process against respondent Nos.1 to 4 for offences under Sections 420, 406, 109, 34 of the Indian Penal Code. It held that the Sessions Court's finding was perverse as it ignored the police enquiry report and statements showing knowledge, and that the mother and sisters could not be believed to be unaware of the son's/brother's prior marriage.
Law Points
- At the stage of issuing process under the Code of Criminal Procedure
- 1973
- the Magistrate need only be satisfied of a prima facie case
- not probability of conviction
- A revisional court cannot ignore police enquiry report and statements to set aside process
- Knowledge of close family members about prior marriage can be inferred from relationship and participation in marriage settlement
- Active concealment of a subsisting prior marriage can attract Sections 420
- 406
- 109
- 34 of the Indian Penal Code
- 1860 for family members
