Decided on December 19,1983


Cited Judgements :-



H.L.Anand,J. - (1.)This petition under Section 482 of the Code of Criminal Procedure is directed the order of the trial court by which the trial court refused to summon Respondents 1 and 2 in a complaint under Section 500 of the Indian Penal Code and of the Additional Sessions Judge upholding the order of the trial Court.
(2.)The petition, which ex facie exposes a crude and clumsy attempt at character assassination of an educated young lady to defeat the claim for restitution of conjugal rights, has been made in circumstances which, to say the least show not only an utter disregard of any scruple on the part of an Advocate but also an unawareness on the part of the Courts below to their duty to give protection to a lady from an act of calumny. Respondent No. 2 is an Advocate of U.P. Respondent No. I is his,son and happens to be an Executive in a Nationalised Bank. Smt. Neelam Chaturvedi, sister of the petitioner who apparently come of a respectable family, was married to the son of the Advocate in June, 1979. Matrimonial disharmony seems to have overtaken the couple soon after the marriage primarily, if not wholly, according to the wife, because of the attitude of the father of the husband for reasons which could perhaps be attributed either to the generation gap or other factors. In 1980, wife sought restitution of conjugal rights in a court in Delhi and also sought maintenance pendente lite. The claim of restitution of conjugal rights and for maintenance was resisted by the husband. The father of the husband, being himself an Advocate, has been acting and appearing for the husband in the proceedings in Delhi. In the course of these proceedings, the father of the husband filed on behalf of his son an affidavit dated December 8, 1980 of one Brij Pal Singh, Respondent No. 3 herein, containing allegations of unchastity against the lady, in terms, which if untrue, could be described as a very crude and clumsy, as indeed, reckless attempt at character assassination of a respectable young lady to defeat the purpose of proceedings in which it was filed. Brij Pal Singh incidently is no relation of either of the parties, had never known the lady before and it is not a sheer coincidence that he was known to the father of the husband because only a little while before the date of the affidavit, they have had a business deal about a parcel of land. The close connection between the father and Brij Pal Singh was not disputed. In the affidavit, which was attested by an Oath Commissioner in Delhi on the identification of the deponent by the said Advocate, Brij Pal Singh alleges that the lady performs naked dance For money; that he had occasion to watch the performance for a payment of Rs. 200.00 in Delhi and that she was reportedly having sexual intercourse at the Delhi Railway Station with a person with two other persons waiting for their turn and claims that the deponent turned down an offer of such intercourse against a payment of Rs. 25.00 In the affidavit, Brij Pal Singh gave a Delhi address which was found to be false and it was not disputed that he is a resident of a town in U.P. The claim of the wife for restitution was decreed by the Additional Sessions Judge by an ex-parte order, but, unfortunately, the learned Additional Sessions Judge did not consider it necessary to deal with the request made on behalf of the wife that the deponent, the husband and his father were guilty of defaming the lady and of fabricating and using false evidence and should be suitably dealt with. The petitioner, who is the brother of the aggrieved lady, eventually filed a complaint of an offence under Section 500 read with Section 34 of the Indian Penal Code in the Court of a Magistrate in Delhi. The husband, his father, and the deponent were impleaded as accused in the complaint. In support of the complaint, the lady appeared and made a statement on oath alleging that a false affidavit had been procured by the husband and his father from Brij Pal Singh and had been filed in the proceedings before the Additional District Judge, with a view to defame the petitioner. She also alleged that the father of the husband and the deponent have had a deal with regard to immovable property and that the father and the deponent were, therefore, known to each other. It was also stated that the deponent in the affidavit gave a Delhi address which was found to be false. By an order of March 3, 1983, and now sought to be assailed, the trial court summoned Brij Pal Singh under Section 500 Indian Penal Code ., but discharged the husband and his father on the ground that there was "no evidence to summon them under Section 34 of the Indian Penal Code ." The order was upheld in revision by the Additional Sessions Judge by an order of May 4, 1983, on the ground that there was "no error apparent on the face of the record" nor had the trial court "acted with any illegality or material irregularity", which may justify interference in revision. .That is how the petitioner invokes the inherent powers of this Court.
(3.)I have heard learned .counsel for the petitioner, as well as the father of the husband, who argued the case on his behalf and that of his son, and it appears to me that both the husband and his father were eminently liable to be proceeded against for an offence under Section 500 read with Section 109 of the Indian Penal Code and that it would be a gross abuse of the process of the court, in the circumstances of the case, to discharge these two persons and both the courts below have taken a view of the matter which is absolutely perverse and, which no judicial tribunal, duly instructed in the law, could possibly take on any reckoning. By declining to issue process against the husband and his father, the courts below have rather taken lightly an attempt at character assassination of a young lady which deserved to be taken serious note of and if ultimately proved, would justify unreserved condemnation at the hands of any court.

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