The Supreme Court while dealing with a case of wife hiding divorce fact with second husband leading to criminal procedure talked about summoning order in complaint case. The Apex Court observed that “For summoning of an accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant.”
The Division Bench of Justice CT Ravikumar and Justice Rajesh Bindal was dealing with a Criminal Appeal in SLP No. 10746 of 2023 in Aniruddha Khanwalkar v. Sharmila Das & Others.
Factual Background – Cheating by Wife
The couple came in contact through a matrimonial site and meetings were held in the presence of two relatives of the wife. The husband was divorced. The wife was also married earlier, and a copy of divorce order was shown on phone. The said copy was allegedly unclear and the wife stated that Judge’s signatures were pending. The complainant husband married the respondent wife on April 28, 2018. The wife’s family allegedly misrepresented their financial status and induced the husband to part with Rs 2 lakhs, book tickets for the wife’s family to and from Vishakhapatnam to Gwalior, bear wedding expenses in entirety. On June 16, 2018, the couple found that they were pregnant. However, the wife was unhappy and wanted to abort the baby. When confronted by husband, she disclosed that she had not obtained divorce from her previous marriage, and that the decree shown on the phone was forged. The wife threatened to file false cases against the second husband. After the husband proceeded with legal action, the wife approached the Family Court and filed an application seeking conversion of contested divorce to divorce by mutual consent and it was granted the same day.
Legal Action by Husband
The husband initially filed a petition under Section 11 of the Hindu Marriage Act, 1955 before the Family Court seeking annulment of the marriage. He also filed a criminal complaint against the wife and two relatives in whose presence the marriage was solemnised. The Magistrate recorded preliminary evidence and after satisfaction of a prima facie case directed issuance of process against the wife for offences punishable under Sections 494 (bigamy) and Section 420 (cheating) read with Section 120B of the Indian Penal Code, 1860 (IPC) along with the two relatives. The summoning order was partly allowed by the Sessions Court which set aside the cognizance of the offence of cheating (IPC Section 420) against the wife and Section 420 r/w 120B against the relatives. The said order was upheld by the High Court. The complainant husband challenged the order passed by the Madhya Pradesh High Court quashing the summoning of wife and her relatives under Section 420 read with Section 120B of IPC.
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Court’s Analysis
The Court took note of the order of the Sessions Judge stating that the factum of earlier marriage was clearly disclosed to the husband. The Apex Court remarked that “The Sessions Judge failed to appreciate the fact that certain events had taken place thereafter, namely, apprising the appellant about the decree of divorce having been passed and showing the forged copy thereof to him on mobile. The Learned Sessions Court has considered the revision against the summoning order as if after trial the findings of conviction or acquittal was to be recorded. It was a preliminary stage of summoning. For summoning of an accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant.”
The Apex Court opined that the Sessions Court and High Court setting aside the summoning order for Section 420 read with Section 120-B IPC was not legally sustainable. The Court held that based on facts pleaded in complaint and evidence led by complainant husband, prima facie case was made out for issuing process against the wife and her relatives to face trial for offences summoned for. The Bench restored the order passed by the Magistrate.
