JUDGMENT S.K. Phaujdar, J.
1. The present application under Section 482. Cr. P.C. has been filed with a prayer for quashing the proceedings in Complaint Case No. 3494 of 1995, Kiran Mehrotra v. Arvind Kumar Mehrotra, pending in the Court of Vlth Addl. C. M. M, Kanpur Nagar. On presentation of the application, further proceedings were stayed for certain period and the stay order was extended from time to time and it is in operation till the date of this judgment.
2. Respondent No. 1 appeared and in addition to other points, she took up a plea of maintainability of the application in view of the fact that the applicant had challenged this very proceeding before the Lucknow Bench of this High Court. Papers, however, have been filed to indicate that on 26.2.1997. the application before the Lucknow Bench in Criminal Misc. Case No. 342 of 1996 was allowed to be withdrawn with liberty to Arvind Kumar Mehrotra to file a fresh application before the competent court.
3. Respondent No. 1 filed the complaint before the Magistrate for offences under Sections 420, 405 and 496, I.P.C. It was stated that Arvind Kumar Mehrotra published an advertisement in a newspaper for a suitable bride and he declared himself to be a divorcee at the relevant time and as a bank officer. The respondent responded to this advertisement and the match was made and the parties were married at Kanpur. It was alleged that Arvind and his father, brother and mother deceitfully concealed that Arvind had been married on two previous occasions and his marriage with Smt. Priti was still subsisting. This suppression of fact was fraudulently made and thereby she and her parents were induced to agree to the performance of the marriage. It was further stated in the complaint that the complainant could know about the existence of marriage between Arvind Kumar and Smt. Priti Kumari from a ration card in which she was shown as the wife of Arvind Kumar during the periods 1980, 1981 and 1982. The ration card was allegedly issued at Patna (Bihar). According to the complainant, the accused Arvind had gone through the ceremony of marriage with her with a fraudulent intention knowing that he was not thereby lawfully married to her and as such an offence under Section 496 was made out. It was further alleged that the complainant was deprived of her valuable clothes and ornaments, etc. that were given to her in marriage and was turned out of her matrimonial home by Arvind Kumar and his relations. After examining the complainant and her witnesses, the court had taken cognizance and issued summonses. Although the sections mentioned in the application under which the applicant has been summoned are Sections 420, 405 and 496. in the complaint there was mention of Section 495, I.P.C. as well.
4. It was urged that deception has been alleged for concealment of the alleged marriage of Arvind Kumar with Priti and it was necessary to bring on record some legal proof about a subsisting marriage between Priti and Arvind, if at all there was any such marriage. It was contended that a marriage could not be proved by mere production of a ration card and this ration card was also riot legally brought on record and it was prima facie questionable as it purported to have been issued from Buxer in the district of Patna (in Bihar) although Buxer was never in the district of Patna at the relevant time or at any point of time. It was contended that the elements of the offences of Sections 405, 495 and 496. I.P.C. were not at all indicated in the complaint or in the statements of the witnesses.
5. Section 420,1.P.C. speaks of cheating and cheating has been defined in Section 415, I.P.C. There must be a deception in the commission of an offence of cheating and a dishonest concealment of fact would also amount a deception. The alleged deception in this case is that in the advertisement the applicant described himself as a divorcee although he was having a wife Priti with whom there was no divorce. For an offence under Section 495, I.P.C. one is to refer to the offence under Section 494, I.P.C. which covers bigamy. Section 495, I.P.C. is an aggravated form of bigamy when it is committed with concealment of the former marriage from the person with whom the subsequent marriage is contracted. Here again, the concealment is of the alleged former marriage with Priti. The offence under Section 496, I.P.C. covers an act when a person with fraudulent intention goes through a ceremony of being married knowing that he was thereby not lawfully married. For this offence also, the marrlge between Kiran and Arvind would not be lawful if only any one of them had a spouse living at the time of this marriage.
6. To constitute an offence under Section 405, I.P.C. an entrustment and dishonest misappropriation are to be alleged and, of course, prima facie proved before a summons under this Section could be issued. The complaint application is at Annexure 6 to the present application. Regarding properties, the only averments are to be found in paragraphs 3 and 4. It was stated in those paragraphs that the only purpose of the matrimonial advertisement was to get sufficient presentation in cash and kind by way of dowry and this greed for money was uneatable. When the accused persons found that they could not get anything more from the parents of the complainant, they turned her out of her matrimonial home. The complaint is not specific as to what were the materials and as to how a trust thereof was created or how the same were misappropriated. Absence of allegation of return of the valuables of the wife by the husband in the complaint, has been attempted to be made up in the statement of Pankaj Tandon in his statement under Section 202, Cr. P.C. when he alleged that sufficient money and other valuables were given in the marriage in the form of ornaments, clothes, etc. But she was turned out without those materials. Whether the absence of allegation in the complaint could be filled up by such a statement through a witness-is certainly a question that can be and should be looked into by the court.
7. Before entering into a discussion whether the elements for the alleged offences were there in the complaint and whether those elements were present before the Magistrate through the complaint or statements under Sections 200 and 202. I.P.C. a question regarding amplitude of powers under Section 482 may be determined. Section 482, Cr. P.C. retain the inherent powers of the High Court for making such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of the court or otherwise to secure the ends of justice. As to how far those powers should be exercised and under what-circumstances have been indicated by the Supreme Court in Bhajan Lal's case. in subsequent decisions again, the Supreme Court struck a note for the High Courts regarding use of the powers under this Section. In the case of State of Bihar v. Kajendra Agarwala, JT 1996 (1) SC 601, it was observed that the jurisdiction of the High Court to quash an order of cognizance of criminal offences should be exercised in exceptional cases and great care must be taken to scuttle the prosecution at its inception. In the concerned case, the Supreme Court was of the view that the High Court had exceeded its jurisdiction by trying to appreciate the evidence and by quashing the order of cognizance. The appeal of the State of Bihar was thus allowed. The facts behind the case before the Supreme Court were stated in paragraph 3 of the reported judgment. The police had chased a truck that had been going in speed and that had not stopped inspite of signal. The truck was intercepted and was found laden with pieces of iron belonging to the Bharat Coking Coal Limited. The name of the accused Rajendra Agarwal was divulged by the driver of the truck as the person at whose premises the truck was loaded. On query, they could not produce any valid document for the materials. A case under Section 414. I.P.C. was registered and after investigation, charge-sheet was submitted. The RanchI Bench of the Patna High Court was moved under Section 482. Cr. P.C. for quashing the order of cognizance and the prayer was allowed. The High Court was of the view on the perusal of the materials that there was no prima/facie case made out from the materials. The Supreme Court disagreed with the approach made by the High Court and referred to its own decision in the case of Mrs. Roopan Deol Bajaj V. K. P. S. Gill, wherein it had been observed that only in exceptional cases, Le., in the rarest of rare cases of mala fide initiation of the criminal proceedings to wreck private vengeance by laying a complaint or lodging an F.I.R. which itself did not disclose at all any cognizable offence, the court could embark upon the consideration and exercise of this power under Section 482, Cr. P.C.
8. The signal conveyed by the decision is absolutely clear and that is that the power under Section 482, Cr. P.C. should not be used every now and then to interfere in every criminal proceeding. It should be used to quash an F.I.R. or a complaint if only it did not disclose any cognizable offence. This could be Judged certainly from the F.I.R. and the complaint and no doubt from other attending circumstances as had been observed by the Supreme Court in other cases.
9. Thus, in this proceeding the only Job of this Court would be to see if the necessary elements for the offences mentioned in the complaint and or summonses were there and if the same have been legally brought on record. Undisputedly, the parties had a divorce proceeding between them and divorce was allowed at the instance of the husband-present applicant. There had been.a proceeding under Section 125. Cr. P.C. as well at the instance of the wife-respondent-complainant of the instant case. The undisputed materials of these proceedings could be taken as attending circumstances to be taken up together with the complaint.
10. For the offences under Sections 420, 495 and 496, I.P.C., the basic allegations is of concealment of alleged marriage of Arvind with one Priti Kumari. This marriage was certainly alleged in the complaint but the materials to enter such a marriage were stated in paragraph 6 of the complaint. It is relevant to mention here that undisputedly Arvind was married with one Shashi and there had been a divorce between him and Shashi prior to the matrimonial advertisement seeking a suitable match. In the complaint it was stated that the name of Priti Kumari appeared as the wife of the accused No. 1 in the list of his family members in a family ration card at Patna. The statement of Pankaj Tandon is, however, absolutely silent about this part of the allegation. He stated that at the time of marriage Arvind and his relatives had indicated that his marriage with Shashi had been dissolved, but he did not show the decree of divorce either at the time of marriage or thereafter and if this statement is read, deceipt has been alleged on this aspect. A line, however, is there that no disclosure was made regarding a second marriage. The ration card from which relationship of Arvind and Priti Kumari was proposed to be proved is Annexure CA1 annexed to the counter-affidavit of Kiran Mehrotra. It was stated in the counter-affidavit that the deponent had come to know that prior to the marriage of Arvind with Shashi, he had a wife named Priti Kumari and a photostat copy of the family ration card from Buxer in the district of Patna was annexed which is Annexure CA1, as indicated above. This document must have been seen or taken possession of by Kiran when she had been staying with Arvind, Le. prior to her being turned out on 23.4.95. A divorce between Arvind and Kiran has also been effected in the meantime and an application for divorce was filed by Kiran as well after 28.4.95. She made no allegation therein regarding Priti although Shashi and her marriage with Arvind was indicated in the petition of Kiran, Marriage is to be proved even at a prima/facie stage not by production of a ration card but by some other evidence admissible under the law. Section 50 of the Evidence Act may be relevant in this respect. It deals with opinion on relationship and the relevancy thereof. Under this Section, when a court has to form an opinion as to the relationship of one person to another, the opinion expressed by the conduct as to the existence of such relationship, of any person who as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact. But this opinion is not to be sufficient to prove a marriage in proceeding under the Indian Divorce Act or in prosecutions under Sections 494, 497 or 498, I.P.C. The question still remains whether by mere production of ration card a prior marriage could be proved or the face of absence of allegation a prior marriage in the divorce proceeding initiated by Kiran against Arvind at an earlier point of time. In my view, a mere allegation is not sufficient unless it was legally brought on record and the production of the ration card must be looked with suspicion in the light of absence of any suggestion of any earlier marriage of Arvind with Prlti when the fact of existence of such a ration card must have been known to Kiran prior to the filing of the divorce proceeding.
11. This may not be taken as an appreciation of evidence as it is only requiring the complainant to bring on record legal evidence even for a prima facie case. Otherwise, all wild allegations are to be accepted in the name of a prima facie allegation. The earlier divorce proceeding which is an undisputed one can always be looked into as one of the attending circumstances towards exercise of powers under Section 482. Cr. P.C. Once it is found that the allegation of prior marriage between Arvind and Priti is not legally sustainable. The very element of deception does not stand, and one deception goes away, the offences of cheating or of those mentioned under Sections 495 and 496 also wither away. It is accordingly found that the complaint read with the attending circumstances did not disclose any prima facte case for the offences under Sections 420, 495 and 496,1.P.C.
12. So far the offences of breach of trust, it is true that keeping away the wife's personal properties after marriage would amount to breach of trust, but such an offence must be alleged in the complaint and may not be inferred even without any suggestion. The complaint petition certainly spoke of delivery of valuables at the time of marriage as dowry. It certainly suggests that the husband and his relatives were dowry-greedy and demanded more and falling in their attempt had turned out Kiran. But the complaint is conspicuously silent about the retention of the properties by the husband or the in-laws. When the complaint does not" say so. it is of no consequence if Pankaj in his statement under Section 202. Cr. P.C. has given a feeble suggestion towards such retention.
13. It is true that the powers of Section 482, Cr.P.C. are to be exercised very sparingly but it is also true that the power must be exercised to check unwarranted criminal proceedings when it springs not from a suggested commission of an offence but palpably from any other mental attitude. The prior proceedings between the parties, the undisputed divorce between them prior to the lodging of the complaint, non-demand of the properties under Section 27 of the Hindu Marriage Act by the wife in the divorce proceeding suggest that the complaint was but a vent of ex-vengeance against the husband. The complaint in question and all proceedings that have been taken on it are, therefore, quashed.
14. The present application is accordingly disposed of.