1. The petitioner (Mr. Puri) is aggrieved by the order of the learned Additional Sessions Judge setting aside the dismissal by the learned S. D. M. Delhi preferred against him under Section 497 of the Indian Penal Code by the respondent (Dr. K. L. Ahuja). The learned S.D. M. held an enquiry under Section 202 of the Criminal Procedure Code, during which he examined seven witnesses on behalf of the complainant and dismissed the said complaint. As against the said dismissal, Dr. Ahuja preferred a revision petition to the Additional Sessions Judge which was accepted.
2. It is seen from the records that even though the learned Additional Sessions Judge had merely ordered issue of notice to the respondent in that revision (described as State) appearance was entered in that criminal case on behalf of the present petitioner. An objection was raised, on behalf of the complainant, to the learned Additional Sessions Judge hearing counsel for the present petitioner, but the learned Additional Sessions Judge considered it appropriate to invite his counsel (who was present) also to address arguments.
3. It has been urged on behalf of the present petitioner that the learned Sessions Judge acted erroneously in setting aside the order of dismissal of the complaint when the learned Magistrate opined that there were not sufficient grounds for proceeding further with the complaint.
4. While dismissing the complaint the learned Magistrate observed as follows:-
'In view of the discussion above, the version of the complainant does not appear to be reliable. In such cases, it is the accepted principle of law that evidence must be of a character which would induce the guarded discretion of a reasonable and just mind to conclude that no other inference than that of misconduct can be drawn. Such evidence is lacking in the present case. Mere possibility that the offence might have been committed in such cases is not enough.'
5. The learned Additional Sessions Judge after discussing the evidence and the approach of the learned Magistrate concluded as follows:-
'I am unable to sustain the dismissal of the complaint in the present case by the learned trial court. The approach adopted is wholly unreasonable, and not what the law should permit. I, thereforee, while accepting this revision send back the case to the learned District Magistrate, Delhi, with direction to hold or get held through a Magistrate subordinate to him further enquiry into this complaint.'
6. Dr. K. L. Ahuja had married Mrs. (Dr.) R. R. Ahuja in the year 1949 when Mrs. Ahuja was working as a Lady Doctor in the Cantonment Board Hospital, Delhi Cantonment. Mr. Puri was the Deputy Director, Cantonment Lines, Ministry of defense, about that time, though he is stated to have been transferred from Delhi prior to their marriage, which was according to Hindu rites and customs. According to the husband, in July 1967, he came to know that his wife had illicit relations with Mr. Puri. Some neighbours, including Mrs. Puri, had complained to him about Mrs. Ahuja and Mr. Puri often being seen together. Mr. Ahuja advised his wife to put an end to her relationship with Mr. Puri, to which she agreed at first. In fact, he even asked Mr. Puri not to telephone to his wife. There are three grown up children of their marriage two of whom are girls.
7. Matters are stated to have come to head when on 13th October, 1967, a telephone call is said to have been received at Karol Bagh, where Mrs. Ahuja is running a Maternity Home; the husband, who had his own clinic in the Cantonment, was also doing some professional work at the maternity clinic, Karol Bagh. The call was answered by the nurse (parkash) when Mr. Ahuja took the receiver from her and heard Mr. Puri asking about the programme for the evening mistaking the nurse to be Mrs. Ahuja. When Mr. Ahuja questioned Mrs. Ahuja she retorted that he had no right to tell her anything. When Mr. Ahuja told her that he heard the person addressing her as 'darling' on the telephone, there was an altercation; she slapped him twice, to which he retaliated by slapping her once.
8. Both Mr. Puri and Mrs. Ahuja took a taxi and went to the latter's house at Inderpuri, collected all the articles, clothes, untersils, etc., and took them away to the Maternity Home to Karol Bagh. Mrs. Ahuja's brother (Mr. Amar Nath) telephoned Mr. Ahuja about this in the evening, Mr. Ahuja went to the clinic at Karol Bagh. Mr. Puri met him outside and abused him in filthy language. He did not go to the clinic thereafter.
9. The couple were using a car. Mr. Puri was informed by telephone that there was a case by his wife against him of a theft of that car., which was ultimately settled at the intervention of one Mahinder Nath (not examined).
10. Mr. Ahuja went to the Maternity Clinic to see his wife again on 28th October, 1967, having unsuccessfully tried to contact her on the telephone, but she told him that she would continue her relationship with Mr. Puri and would not live with her husband or allow him to come to the clinic.
11. A few days later, on 15th Novemeber, 1967, the husband gave a complaint to the police concerning damage caused to his car by his wife throwing something from the window in an attempt to insult him.
12. It is admitted that Mrs. Ahuja has also applied for judicial separation, which is pending.
13. The present complaint under Section 497, Indian Penal Code, out of which the present revision petition arises, was filed on 21st November, 1967.
14. Out of the persons referred to in the petition, a number of them viz., Mrs. Adena Dass, Mrs. Margaretts, Mrs. Puri, Mr. N. N. Malik, Mr. J. R. Chawla, Mr. A. N. Chhabra, Nurse Prakash and Mr. S. S. Khanna were not called; in the course of his own statement, the complainant had made reference to two other persons, Messrs. Vasudev Arora, and Sardari Lal, who were also not called. Pws. 4, 5 and 6 (Messrs. Hardayal Singh, Lakhbir Singh and Jagdish Chander respectively) were not cited as witnesses in the complaint or referred to in the sworn statement. The learned Magistrate recorded the evidence of some of the witnesses who have been cited in the complaint, namely P.W. 2 (R. L. Nayyar) P.W. 3 (A. N. Chawla) and P.W. 5 (R.R. Kapur).
15. It is necessary to have a full view of the entire evidence adduced by the complainant.
16. P. W. 2 had seen Mrs. Ahuja with a Sikh gentleman occupying a seat where he was sitting at the Sheila theatre to which place he had gone to see a picture on the 14th May, 1967; Mrs. Ahuja was resting her head on the person whom he recognised as Mr. Puri and he had put his arm around her back. He saw such movements four or five times during the show.
17. P.W. 3, who is no other than the brother-in-law of Mr. Ahuja had seen Mrs. Ahuja and Mr. Puri sitting on a bench at Connaught Place in the first week of October 1967 at about 9-10 P.M. and he had seen Mr. Puri putting his hand around her waist and walking away.
18. P.W. 5, who had been described in the complaint as one who could give conclusive evidence that Mr. Puri had adulterous relationship with Mrs. Ahuja, swore that he had gone to the clinic of Mrs. Ahuja at Karol Bagh in connection with a medical case of his friend (Raghbir Singh's wife). He went inside the clinic and enquired about Mrs. Ahuja who was said to be inside. When he walked inside the retiring room he found Mrs. Ahuja and Mr. Puri kissing each other. He had known Mrs. Ahuja for the past twenty years; and she told him that she would give time for consultation some other day. P. W. 5 informed Dr. Ahuja about this when he came to know of the quarrel between them.
19. Among those not cited as witnesses but examined was P.W. 4 (Hardayal Singh), a member of the Cantonment Board for about 12 years.he had seen Mrs. Ahuja and Mr. Puri walking hand in hand and Mr. Puri addressing her as 'meri jan' and was under the impression that they were husband and wife.
20. P.R. 6 (Raghubir Singh), another member of the Cantonment Board, had gone to the maternity clinic of Mrs. Ahuja about two years prior to his examination (he was examined on 23rd March, 1968) and the door of the clinic being closed from inside. When he rang the bell Mr. Puri came out and told him that she was not there and that she could not see him. But later she came out and said that she had no time. He had later seen them caressing each other in the Budha Park.
21. P.W. 7 (Jagdish Chander Dang) had seen Mr. Puri coming daily to the maternity clinic and going out in the evening with Mrs. Ahuja in a car. He had gone to the clinic in September 1967 and was toldby the nurse that he could not see Mrs. Ahuja for she had a guest. Mr. Puri came out half an hour later; as long as Mr. Puri was there he himself and the other patients were kept waiting.
22. On 9th April, 1968, after the examination of the above said seven witnesses including the complainant, the complainant had stated to the learned Sdm that he closed his case for the purpose of the enquiry and that he had given up Mrs. Edna Dass as she had been won over by the opposite party.,
23. The learned Sub-divisional Magistrate was of the view that the evidence of P.Ws. 2, 3 and 5 did not disclose the commission of the offence of adultery; whereas P.Ws. 4, 6 and 7 had not been mentioned as witnesses in the complaint. In the face of their statement that they had informed the complainant about what they saw, the omission to refer to them is significant. It could not be stated that the learned Sub-divisional Magistrate was 'unreasonable' in not placing reliance upon the version that Mrs. Ahuja and Mr. Puri were seen kissing each other inside the room of the maternity clinic where patients were either waiting or were supposed to wait for Mrs. Ahuja. The learned Sub-divisional Magistrate also referred to the allegation in the complaint that he had written letters to his daughters as early as in December 1965, regarding illicit relationship of Mr. Puri with his wife he deferred filing the complaint till 15th November, 1967. He also commented upon the two witnesses Mrs. Edna Dass and Mrs. Margaretts (the former alone was given up as won over) not being examined in spite of the allegation in the complaint that they could give conclusive evidence concerning the alleged adultery, narinder Nath Malik, to whom Mrs. Ahuja had made a confession according to the complaint, was also not examined. The learned Sub-divisional Magistrate considered that the complaint had been filed due to strained relationship between him and his wife who had even gone to the extent of lodging a report of theft against him. He, thereforee, expressed the opinion, in terms of Section 203 of the Code of Criminal Procedure, that there were not sufficient grounds for proceeding further with the complaint.
24. In this revision petition the question is whether the learned Additional Sessions Judge had valid and proper grounds for interfering with the order of dismissal passed by the learned Sub-divisional Magistrate under section 203, Criminal Procedure Code.before discussing this question, however, it is necessary to advert to two other objections raised on behalf of Mr. Ahuja.
25. It was contended that the learned Additional Sessions Judge committed an error in hearing the arguments of the accused's counsel to whom he had not ordereedd notice of the revision petition filed before him by the complainant. This question need not detain us because the learned Additional Sessions Judge had invited the counsel for Mr. Puri to address arguments, when he was present in Court at the time of the hearing of the revision petition. It appears tht notice of the revision petition did go to Mr. Puri but as it appears from the docket the learned Additional Sessions Judge had only ordered notice to the respondent which was the State. If, even by any error committed by the Office of the learned Magistrate, notice had also gone to Mr. Puri nothing prevented the learned Additional Sessions Judge from hearing Mr. Puri for it was his discretion to her him. A Full Bench of the CalcuttaHigh Court consisting of eight Judges, pointed out in Hari Dass Sanyal v. Saritulla (1888) 15 Cal 608 , that while no notice to an accused person was necessary in point of law before disposing of a revision petition directed against the order of dismissal under Section 203, Criminal Procedure Code and ordering a further enquiry as a matter of discretion it was proper that such a notice was given. In spite of that the learned Additional Sessions Judge had set aside the order of dismissal. In this situation the complainant cannot make any further grievance of this.
26. It was also contended that Mr. Puri had no locus standi, at this stage, to file this revision petition since, in an enquiry under Section 202, Criminal Procedure Code and before notice is directed to issue to the accused, the acccused has no locus standi to take part in that enquiry. This objection is again misconceived. The enquiry under Section 202, Cr. P.C. is over, the learned Sdm having dismissed the complaint. I do not see how Mr. Puri, who is the accused, could not invoke the revisional jurisdiction of this Court to complain that the proceedings direction to go on against him should be quashed,in other words, to urge that the order of dismissal passed by the learned Sdm should remain in force. I accordingly overrule the objection regarding the maintainability of this revision petition.
27. The learned counsel for Mr. Puri has drawn my attention to a decision of the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar : AIR1962SC876 which following Vadilal Panchal v. Dattataya Dulaji Ghadigaonkar : 1SCR1 explained the scope of Ss. 202 and 203, Cr. P.C. in the following terms:
'The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and section 203 lays down what materials are to be considered for the purpose. Under Section 203, Criminal Procedure Code, the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. thereforee, if he has not misdirected himself as to the scope of the enquiry made under Section 202, Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously.'
28. In Vadilal Panchal, : 1SCR1 the Supreme Court held that the Magistrate holding an enquiry under Section 202, Criminal P.C. had power to accept a plea of self-defense which was supported by the report of the enquiring officer and statement of witnesses and to dismiss the complaint without issue of process. Reversing the judgment of the Bombay High Court Dattatraya Dulaji Ghadigaonkar v. Vadilal Panchal Air 1958 Bom 335 which held that as a matter of law it was not open to the Magistrate to come to the conclusion that on the materials before him on offence had been made out and there was no sufficient ground for proceeding with the complaint, S.K.Das, J., (as his Lordship then wsa) pointed out that the Magistrate was required to apply his judicial mind to the materials on which he has to form his judgment and that in arriving at his judgment he was not fettered in any way except by judicial considerations; he was not precluded from accepting a plea based on an exception, provided it had been brought out in the evidence. These are questions which are necessary to be answered with reference to the facts of each case, no universal rule being applicable. Referring to the various decisions which had been cited by the Bombay High Court, the Supreme Court observed that it could not be laid down as an absolute proposition that a plea of self-defense cannot in any event be considered by the Magistrate in dealing with a complaint under the provisions of Ss. 200, 202 and 203, Cr. P.C
Even the Bombay High Court, referring to the wide discretion which the Magistrate derives under Section 203, Cr. P.C. insisted on his using the powers judicially , whether to proceed or not and precluded him from surrendering his judgment to the police. But the Bombay High Court went further to point out that when there was evidence that an offence had been committed there must be 'legal evidence' before the Magistrate establishing such an exception which the accused claimed, before the complaint can be dismissed under S. 203, Cr. P.C., the burden of establishing such an exception being clearly upon the accused. It was this portion of the Bombay High Court's view that did not find favor with the Supreme Court in Vadilal Panchal, : 1SCR1 . The test for interference with the order of dismissal under S. 203, Cr. P.C. was whether the Magistrate had misdiected himself as to the scope of the enquiry under Section 202, Cr. P.C. and whether he had applied his mind judicially to the materials before him. I have culled out verbatim the crucial observations of the learned Sub-Divisional Magistrate. I have also described how he set out the entire substance of the evidence before him and the omission tocite some of them. I have also shown how the learned Sdm not only appreciated the evidence in the context of the strained relationship between the spouses but also pointed out, for the specific reasons mentioned by him, that he did not find sufficient grounds to proceed further with the complaints.
As against what the learned Sdm had said the learned Addl. Sessions Judge was only able to say that the approach adopted was 'wholly unreasonable' and 'not what the law should permit.' I have not been shown how the approach of the learned Sdm was either unreasonable or one which the law did not permit. The complainant, it may be recalled, stated that he was closing his case (may be for the purpsoe of enquiry); he has not referred even now to anything more specifically about any further evidence which he wished to adduce further or was in a position to adduce. I have not been persuaded that the approach of the learned Sdm was unresonable; nor has the Addl. Sessions Judge said anything specifically in his order as to in which respect the approach was unreasonable in the context of what the law permits or does not permit a learned Magistrate conducting an enquiry under Section 202, Cr. P.C. the ambit of the enquiry has been clearly pointed out in Vadilal Panchal, : 1SCR1 as well as in Pramatha Nath Talukdar, : AIR1962SC876 . As against the above the learned counsel for Mr. Puri drew my attention to the observation of the Supreme Court in Chandra Deo Singh v. Prakash Chandra Boase : 1SCR639 that the duty of the court at that stage is only to see whether there is evidence in support of the complaint and not whether the evidence is sufficient to warrant a conviction. The Supreme Court pointed out that the accused person should not be permitted to intervene at the stage of enquiry under Section 202, Cr.P.C., for that would frustrate the very object of holding such enquiry and that is why the Legislature had made no specific provision permitting an accused person to take part in the enquiry. It was for this reason that the Supreme Court held that the enquiry by the Magistrate in that case was vitiated and had to be set aside. There is no such infirmity here so far as the enquiry conducted by learned Sdm was concerned.
29. The revisional jurisdiction has to be exercised in such a manner that it will compel a Magistrate to apply his judicial mind honesty to the complaint preferred to him but not so as to inhibit him from throwing out a complaint which, after applying his judicial mind to the relevant materials, he feels should be thrown out. Such an approach alone can give harmony and coherence to a situation where the exercise of revisional jurisdiction is involved.
30. If what the learned Additional Sessions Judge meant was that the approach was wholly unreasonable even then the above discussion would show this criticism of his approach is not correct. If the learned Additional Sessions Judge considered that there was anything in the law which precluded the Sdm in acting in the manner he did if is seen that there was none. A careful perusal of the judgment of the learned Sdm shows that he had not taken anything into consideration which the law did not permit; nor did he omit to take into consideration anything which the law required him to do.
31. It is settled law that in the matter of exercising revisional jurisdiction the Courtt will not by appreciating the evidence once again substitute its own judgment in the place of the learned SDM. In other words, it would not be a sufficient reason for a court of revision to interfere on the ground that if it had itself tried the complaint it might have come to a different conclusion. When a still furtehr revision is filed, complaining against the interference by a lower court in the exercise of revisional jurisdiction the necessary corrective has obviously to lie in the direction of setting aside the interference, in revision, which did not strictly fall within the ambit of its revisional jurisdiction. If the present case is looked at in that perspective, it seems to me, (I am now essentially concerned with the interference by the learned Addl. Sessions Judge who exercised revisional powers) that the interference by the learned Addl. Sessions Judge with the order under Section 203 Cr. P.C. was clearly not warranted and was in excess of his jurisdiction.
32. Vadilal Panchal : 1SCR1 is clear authority for the proposition that in applying his judicial mind to the materials on which he has to form his judgment, he is not fettered in any way except by judicial considerations. The important judicial consideration to which the Sdm alluded is the nature of proof that is necessary to establish adultery. It has been pointed out that the definition of 'adultery' under Section 10 of the Indian Divorce Act, for instance, is wider that the definition of 'adultery' in Section 497 of the Indian Penal Code (vide Olga Thelma Gomes v. Mark). 'Adultery' has itself not been defined in the Divorce Act and for that reason the courts had recourse to the principles laid down by English Divorce Courts. There is no criminal prosecution in England for adultery. Section 497 of the Indian Penal Code speaks of a person haiving sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man. What is essential for the offence of adultery is proof of 'Sexual intercourse'. It is also true that this could rarely be proved by direct evidence because precautions are taken to screen it from the view of others. But in evaluating the husband's accusation against his wife of adultery the entire back-ground and the context in which such accusation is made is highly relevant. When the parties concerned are sophisticated, conclusions cannot be arrived at on the mere basis of opportunities for sexual intercourse; such an inference may be more readily possible when dealing with persons whose social mores are more rigid and less sophisticated. The fact of adultery has, thereforee, to be inferred from the totality of circumstances that lead to it by fair inference and as a necessary conclusion. What those circumstances are cannot be laid down universally. Nonetheless, the circumstances must be such as should lead the guarded discretion of a reasonable and just mind to that conclusion; it is not to be reached by rash and intemperate judgment, or upon assurances that are equally capable of two interpretations.
33. In the above view the order of the learned Additional Sessions Judges is set aside the order of dismissal of the complaint will remain in force. The revision petition is accordingly accepted.
34. Revision allowed.