H J ARANHA Vs. S H ARANHA

JUDGEMENT

(1.) Respondent No. 1 in this application filed a complaint against the petitioners under section 494 of the Indian Penal Code. According to respondent No. 1, she was legally married to the petitioner on 10th of May, 1964. For some days thereafter they lived together and then she was forced to leave the house of her husband and go to reside with her mother. It is her case in the complaint that since then she is living with her mother. It is also her case that the petitioner No. 1 was in the habit of developing illicit intimacy with different women from time to time. Originally accused No. 2 was employed by him as a domestic servant several years back. However, she was being treated as his mistress. She also came to know that accused No. 2 had given birth to a child on or about 30th January, 1975. When she made inquiries in this behalf she came to know from the Church record that accused Nos. 1 and 2 had been shown as father and mother of the child in question and accused No. 1 had stated that he had accused No. 2 had married some time previously. She has further made a statement in the complaint itself that she will examine the representative from the Church for this purpose. She also stated that she will rely on the certificate issued by the Church. According to the complainant accused complainant accused No. 2 gave birth to another child on 26th December, 1976 and she again obtained a copy of the hospital record and a copy of official certificate from the Bombay Municipal Corporation showing accused No. 1, as father and accused No. 2 as mother of the said child. According to the complainant her again accused No. 1 has told the hospital authorities that accused No. 1, in his wife. On these allegations she filed this complaint under section 494 of the Indian Penal Code against both the accused persons. The learned Metropolitation Magistrate, 6th Court Mazgaon, Bombay after satisfying himself about the allegations made in the complaint passed an order on 3rd of March, 1977 directing issue of process under section 494 of the Indian Penal Code against accused No. 1 and under section 494 read with section 114 of the Indian Penal Code against accused No. 2. It is this order which is challenged before us in this application which is filed under section 482 of the Code of Criminal Procedure.

(2.) The petitioner in this case has contended before us that the learned Metropolitan Magistrate committed an error in issuing process when even it is assumed that all the allegations made in the complaint are true, the complaint does not disclose any offence punishable under section 494 of the Indian Penal Code. According to the petitioner none of the ingredients necessary to prove an offence under section 494 of the Indian Penal Code are disclosed in the complaint. He further contended that this complaint has been filed with the sole intention of harassing him because of the previous litigation between the parties. It is the case of the petitioner before that as essential ingredients of the offence under section 494 are not alleged in the complaint itself, the complaint does not disclose any offence at all and, therefore, the order passed by the Metropolitan Magistrate directing issue or process is not only illegal but is also without jurisdiction. According to the petitioner for proving an offence under section 494 oft he Indian Penal Code, it is necessary that the complainant should allege as to when the marriage between the accused persons took place. In support of these contentions the petitioners are strongly relying upon certain decisions of the Supreme Court. However, it is not necessary to make a reference to these decisions as to now on the subject is well settled.

(3.) It is by now well settled that at the stage of issuing process it is not the duty of the Court to find out as to whether the accused will be ultimately convicted or acquitted. The objection of consideration of the merits of the case at this stage could only be to determine whether there are sufficient grounds for proceeding further or not. Mere existence the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover truth after a full and proper investigation, if, however, a bare perusal of a complaint or the evidence led in support of it show essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, then of course the complaint is liable to be dismissed at that stage only. What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what is stated can be true unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true (Debendranath Bhattacharya and others v. The State of West Bengal and another) A.I.R. 1972 S.C. 1607.