ORDER
(i) that the co-accused of the petitioners have been exonerated by the learned Magistrate, meaning thereby that they have not been summoned to stand trial ;
(ii) that in a proceedings under section 491, Cr. P. C. The petitioner No. 2 made a statement that she was legally wedded wife of petitioner No. 1. On this assumption, she was allowed to go with petitioner No. 1 and the habeas corpus petition was accordingly disposed of ;
(iii) that there is inordinate delay in filing of the complaint ;
(iv) that the marriage of petitioner No. 1 with petitioner No. 2 having been admitted by the respondent, no criminal prosecution is competent unless there is a civil decree to the effect that this marriage is either void or invalid because, in the peculiar circumstances of the case, question of status of the parties is involved ;
(v) that the learned Magistrate should not, on the reading of the record before him, have summoned the present two petitioners to face trial ; and lastly,
(vi) that there is likelihood of the petitioners being harassed when they appear before the learned Magistrate in pursuance of the notice issued to them to face the trial.
2.. The allegations in the complaint filed by the respondent to whom admittedly, petitioner No. 2 was at one time married, in so far as they related to the two petitioners, are : that petitioner No. 1 being a neighbor of the respondent ; taking undue advantage of his position in the house of the respondent ; enticed away his wife, i.e., petitioner No. 2 ; and thus violated trust reposed in him by the respondent ; and allegedly ruined not only the married life of a couple but also the four issues having been taken away by the petitioners. From this wedlock there is also some allegation of jewellery. The occurrence is stated to be of 2-9-1972. On 3-9-1972, the respondent claimed to have to lodge a report about it at Police Post Rang City. Thereafter, on account of intervention by Panchayat, the petitioner No. 2 came back to the house of the respondent and started living with him as his wife but petitioner No. 1 did not give up his fight for her and filed a petition in the High Court under section 491, Cr. P. C.,- as a result of which petitioner No. 2, appeared in the High Court, made a statement that the respondent had divorced her and that she had married petitioner No. 1 whereupon "the Court freed her" (azad karna) ; and she went away with petitioner No. 1 and started living with him. The allegation precedes that despite the fact that petitioner No. 1 is the wife of the respondent, who had never divorced her; the two petitioners are indulging in adultery. In para 7 of the complaint, some more facts are stated with regard to a divorce deed having been forged. In any case, according to the respondent, the divorce not having become effective in accordance with law, could not be pleaded as defence by the petitioners. The evidence which the respondent wanted to produce in support of the complaint is indicated in the complaint which is dated 21-11- 1972.
3. It is necessary to notice here that petitioner No. 1 filed a petition under section 491, Cr. P. C., against Abdul Rehman, allegedly an uncle of the respondent, asserting that he had illegally detained petitioner No. 2. That petition came up before my learned brother Dr. Javid Iqbal, J. On 26- 10-1972. A bailiff was sent to recover her from the house of Abdul Rehman. Vide his report-dated 30-10-1972 the bailiff reported that the alleged detenu was not found in the house of Abdur Rehman. On the other hand, the inmates of that house had informed him that petitioner No. 1 had abducted her. It is interesting to note that the respondent, who admittedly was earlier married to petitioner No. 2, was not imp leaded as a respondent in the habeas corpus petition. On 30-10-1972, it was undertaken on behalf of aforementioned Abdul Rehman that the detenu would be produced in Court on 10-11-1972 on which date petitioner No. 2 appeared and made the following statement: - "Manzoor Hussain petitioner is my husband. I married Manzoor Hussain petitioner about six months ago. I was married once before but was divorced. I married the petitioner at my own accord. Abdur Rehman respondent is my maternal uncle. Abdur Rehman respondent did not approve of this marriage. Abdur Rehman respondent along with few others forcibly took me away from the house of the petitioner, my husband. Ever since Abdur Rehman respondent has kept me in illegal confinement and he has placed restrictions on my movements and would not let me go back to my husband, the petitioner. I want to go back to the petitioner, Manzoor Hussain."
On the above statement, his Lordship passed the following order and disposed of the habeas corpus petition: - "In the light of the statement of Mst. Aziz Fatima, it is clear that her maternal uncle would not approve of her marriage with the petitioner as he brought her back from her husband's house and was not permitting her to return to her husband, the petitioner, whereas she wants to go with him.
She is major by age and is free to go wherever she likes. She has indicated in her statement that she wants to go with the petitioner who is her husband. She is permitted to go with her husband."
4. After hearing the learned counsel at some length, I do not agree with him that it is fit case for exercise of jurisdiction under section 561-A, Cr. P. C., so as to quash the proceedings. Except for the copy of the complaint, the other material which was before the learned Magistrate while summoning the petitioners to face trial has not been produced with this petition. However, I permitted the learned counsel to argue contentions No. (i), (iii) and (v) which relate to the merits of the case, on the basis of the material available in his brief.
5. I do not agree with the learned counsel that simply because the learned Magistrate has not summoned all the accused mentioned in the complaint to stand trial it is enough to hold that the case againstthe petitioners is false. In the complaint, specific allegations have been mad against the two petitioners. Moreover, reliance has. Been placed on their own admission and conduct.
Similarly, I do not agree with the learn counsel that the petitioners have been summoned to face the trial by the learn Magistrate without applying his mind to the facts of the case. The simple fact that the learned Magistrate has not given detailed reasons for summoning the accused is not sought to come to a conclusion that he did not apply mind to the facts of the case. Learned counsel has failed to satisfy me that it was incumbent for the learned Magistrate to have stated reasons for summoning the accused. In any case, the material against the petitioners was not such B that they should not have been summoned to face the enquiry/trial. The respondent has given details of the facts about the allegation that the petitioner No. 2 had been enticed away by petitioner No. 1 and she had been returned to him (the respondent) on intervention by a Panchayat.
He has categorically stated that he never divorced his wife. He further claimed that the so-called divorce deed is a forgery and in this behalf he asserted that the divorce deed is purported to have been written on 26-1-1972 while petitioner No. 2 resided with him as his wife up to 2-9-1972. He also relied on the fact that had the divorce deed been a genuine document, information about it would have been given to the Union Council but nothing was done in that direction. I also do not agree with the learned counsel that on account of the so-called delay in filing the complaint, the learned Magistrate should have refused to summon the petitioners as accused in this case. Learned counsel has ignored that the proceedings remained pending in the High Court till 10-11-1972 and it is mentioned in the complaint that after ascertaining the facts from the High Court the respondent came to know of certain circumstances about which he was not earlier aware. Thus it cannot be said that in this case when the trial proceeds, no explanation is likely to be offered for the so-called delay. On merits therefore, I see no justification at all for action under section 561-A, Cr. P. C. This disposes of contentions Nos. 1, 3 and 5 noted above.
6. The contention of the learned counsel, that in view of the proceedings in the High Court under section 491, Cr. P. C., and result thereof the learned Magistrate should not have summoned the petitioners to stand trial, has not impressed me either. The respondent was not a party in those proceedings. Moreover, they being of summary nature, this Court, after recording the statement of the alleged detenu, permitted her to go with the person whom she claimed to be her husband; main reason being that she 'was major and could, in the circumstances then placed before the Court, go .Any where she liked. But that does not mean that this Court finally decided the question of divorce of petitioner No. 2 by the respondent who admittedly, was not a party and/or that it was finally decided that the marriage between the two petitioners was legally valid. It is significant to note that it was observed in the order that `In the light of the statement of Mst. Aziz Fatima, her maternal uncle was not permitting her to return to her husband, the petitioner (petitioner No. 1 herein), whereas she wanted to go to him'. The observation that "she is major by age and is free to go wherever she likes" Is very significant and because "she has indicated in her statement that she wants to go with the petitioner" whom she declared as her husband, therefore, %he was permitted to go with him. The question of divorce by the first husband of Mst. Aziz Fatima was not put to issue nor was it necessary. Therefore, parties have bad no opportunity of leading evidence in this behalf.
In fact, her first husband (respondent herein) was not even summoned in -the Court nor his statement was recorded. I, therefore, hold that the -proceedings under section 491, Cr. P. C. Or the orders passed on the earlier petition are no bar to the continuance of trial of the petitioners for the offence they have been accused of. The concerned parties would now have full opportunity of stating and proving their respective positions.
7. It needs to be mentioned that by their very nature and purpose the proceedings under section 491, Cr. P. C., are summary in character. Controversies are not tried nor entire evidence is recorded under ordinary substantive and procedural laws civil or criminal. I have no doubt in m_ c mind that these proceedings are not intended to go beyond the summa consideration of the questions essentially relevant to the alleged detention, -e.g., whether an alleged detenu be set at liberty and as a consequence there to be permitted to go with the person of his or her choice and/or one claim in fright to the farmer---s custody or company. This position gets illustrated by reference to the order under section 491, Cr. P. C. Under discussion in this very case. There was no trial under Civil or Criminal Procedure of all the vital questions now in issue nor any final decision was given on questions .Qua the alleged divorce by the first husband of the detenu or with regard to the validity of her second marriage. Such orders under section 491, Cr. P. C., by their very import and scope are not legally binding on the persons concerned except qua questions of detention and/or liberty of the detenu and that too subject to any subsequent decision in a regular trial between the D concerned parties who want to agitate those or other similar or connected questions in ordinary Courts through proper proceedings; nor do they exonerate any person of any offence if, in fact, one has been committed under ordinary laws. Principle of res judicata in any form is not attracted to such situations, neither as a legal bar nor on account of any practice or policy.
8. The unusual argument of the learned counsel that before lodging a complaint under section 494/497 and/or 498, P. P. C. a husband under the law is required to get a declaration from a civil Court that this marriage subsists, does not need any elaborate comment. The criminal Court is no only competent but is also required to give finding on -the question o marriage when raised before it in connection with the aforementioned offences. There is neither any statutory bar nor any other impediment in so far as the jurisdiction and competence of the criminal Court is concerned.
9. The apprehension of the learned counsel that the petitioners would: be harassed if the trial proceeds, is vague and further, is not supported by any evidence. In so far as the complaint goes, there are concrete allegations against the petitioners. This, by itself, in my view, does not amount to harassm ent. If the petitioners apprehend any breach of the peace, they can seek protection and/or preventive measures in accordance with law.
10. None of the contentions raised by the learned counsel has succeeded. Otherwise too, the facts and circumstances of the case do not satisfy the conditions for an action under section 561-A, Cr.
P. C. Their Lordships of the Supreme Court in Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317)observed that the power given under section 561-A, Cr. P. C., can certainly not be so utilised as to interrupt or divert the ordinary course of p Criminal Procedure as laid down in the procedural statute and also that "the High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a' prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence".
11. In the light of the above discussion, this petition is dismissed in limine.