Holding

A summoning order may be upheld if a prima facie case is established on the complaint allegations and pre‑summoning evidence, and the Sessions Court’s setting aside of such an order was erroneous.

Summary

The appellant married respondent No.1, who had previously concealed her existing marriage and presented a forged divorce decree, inducing the appellant to part with Rs. 2 lakh and later discover her pregnancy. The appellant filed a criminal complaint alleging cheating and criminal conspiracy under Sections 420 and 120‑B IPC against respondents No.1, 2 and 3. The magistrate, after recording preliminary evidence, issued summons, but the Sessions Court set aside the summoning order, holding no offence was made out. The appellant appealed, arguing that a prima facie case can be established solely on the complaint allegations and pre‑summoning evidence. The Supreme Court held that the Sessions Court erred, emphasizing that for summoning an accused, a prima facie case must be made out on the basis of the complaint and pre‑summoning evidence, and restored the magistrate's order. Consequently, the appeal was allowed and the higher courts' orders were set aside, with the trial court directed to decide the case on its merits.

Issues considered

Whether a prima facie case for summoning an accused can be made out solely on the basis of the complaint allegations and pre‑summoning evidence.
Whether the Sessions Court erred in setting aside the magistrate's summoning order under Sections 420 and 120‑B IPC.
Whether the facts alleged constitute an offence of cheating and criminal conspiracy under Sections 420 and 120‑B IPC.

Legislation cited

Code of Criminal Procedure, 1973
Hindu Marriage Act, 1955s. 13(1), s. 13(1)(i), s. 13-B
Indian Penal Code, 1860s. 120-B, s. 34, s. 420, s. 468, s. 471, s. 494, s. 495, s. 506

Subjects

Issuance of processPrima faciePre-summoning evidenceSummoning order

Judgment

[2024] 5 S.C.R. 537 : 2024 INSC 342

Aniruddha Khanwalkar
v.
Sharmila Das & Others
(Criminal Appeal No. 2272 of 2024)
26 April 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ]

Issue for Consideration
Whether it is sufficient to make out prima facie case on the basis
of allegations for summoning of the accused.

Headnotes
A. Magistrate vide order dated 12.03.2019 directed issuance
of process against the respondents after recording
preliminary evidence and being satisfied that a prima
facie case was made out – Sessions Court partly allowed
the revision against the order of magistrate setting
aside the order to the extent of taking cognizance of the
offence punishable under section 420 of IPC against the
respondent no.1 and for the offence punishable under
section 420 read with section 120-B of IPC against the
respondent nos.2 and 3 – Appellant challenged the order
of Sessions Court before High Court – High Court upheld
the same – Appellant filed the appeal against the order
dated 25.04.2023 passed by the High Court upholding the
order of the Sessions Court – Appeal allowed. [Paras 2,
4, 5, 6, and 16]
B. Prima facie case is to be made out on the basis of
allegations and pre-summoning evidence for summoning
of an accused.
Held: The Sessions Court held that no offence punishable
under Section 420 read with Section 120-B, IPC was made
out as the factum of earlier marriage of the respondent no.1
was clearly disclosed to the appellant. The Sessions Judge
failed to appreciate the fact that certain events had taken
place thereafter, namely, apprising the appellant about the
decree of divorce having been passed and showing the forged
copy thereof to him on mobile. The Learned Sessions Court

* Author
538 [2024] 5 S.C.R.

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has considered the revision against the summoning order
as if after trial the findings of conviction or acquittal was to
be recorded. It was a preliminary stage of summoning. For
summoning of an accused, prima facie case is to be made
out on the basis of allegations in the complaint and the pre-
summoning evidence led by the complainant. [Para 12.1]

List of Acts
Code of Criminal Procedure, 1973; Indian Penal Code, 1860,
Hindu Marriage Act, 1955.

List of Keywords
Issuance of process, Prima facie, Pre-summoning evidence,
Summoning order.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2272
of 2024
From the Judgment and Order dated 25.04.2023 of the High Court
of M.P at Gwalior in MCRC No. 11184 of 2021
Appearances for Parties
Gopal Shankarnarayanan, Sr. Adv., Ms. Astha Sharma, Nipun
Saxena, Ms. Anju Thomas, Ms. Mantika Haryani, Ms. Aditi Gupta,
Ms. Ripul Swati Kumari, Archit Adlakha, Ms. Soumya Saxena, Aditya
Raj Pandey, Advs. for the Appellant.
Mukesh Kumar, Yashaswi S.K. Chocksey, Ankit Singh, Sushant
Sagar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
Leave granted.
2. The complainant is before this Court challenging the order dated
25.04.20231 passed by the High Court of Madhya Pradesh at Gwalior

1 Passed in Misc. Criminal Case No.11184 of 2021
[2024] 5 S.C.R. 539

Aniruddha Khanwalkar v. Sharmila Das & Others

vide which the order dated 11.01.2021 passed by the 4th Additional
Sessions Judge, Shivpuri2 quashing the summoning order dated
12.03.20193 passed by the Trial Court was set aside as far as Section
420, IPC is concerned against the respondent no.1/Sharmila Das and
Section 420 read with Section 120-B, IPC against the respondent
no.2/Usharani Das and respondent no.3/Sangita.
3. Briefly the facts as available on record are that the marriage of the
appellant was solemnized with the respondent no.1 on 28.04.2018 in
the presence of the respondent nos. 2 and 3. Having come to know
that on the date, the respondent no.1 had solemnized marriage with
the appellant, she was already married and had not obtained divorce
from her first husband, the appellant filed a petition4 under Section
11 of the 1955 Act5 before Principal Judge, Family Court, Shivpuri
(M.P.) seeking annulment of marriage between the appellant and
the respondent no.1.
4. Subsequently, the appellant preferred a complaint6 against the
respondent nos.1, 2, and 3 in which the Magistrate vide order dated
12.03.2019, after recording preliminary evidence and being satisfied
that a prima facie case was made out, directed issuance of process
against the respondent no.1 for the offences punishable under
Sections 494 and 420 read with Section 120-B, IPC, and against
the respondent nos. 2 & 3 for the offence punishable under Section
420 read with Section 120-B, IPC.
5. The aforesaid order was impugned by the accused persons/
respondent nos. 1 to 3 by filing Revision Petition7 before the 4th
Additional Sessions Judge, Shivpuri which was partly allowed by
the Sessions Court. The impugned order dated 12.03.2019 passed
by the Magistrate was set aside to the extent of taking cognizance
of the offence punishable under section 420 of IPC against the
respondent no.1 and for the offence punishable under section 420
read with section 120-B of IPC against the respondent nos.2 and 3.

2 In Criminal Revision No. 155 of 2019
3 Complaint Case bearing Case No. 7798 of 2019
4 Case No. RCSHM/34/2019
5 Hindu Marriage Act, 1955
6 The Court of Judicial Magistrate First Class, Shivpuri (M.P.) under Sections 495, 420, 468, 471 and 506
read with Section 34, IPC
7 Criminal Revision No. 155 of 2019
540 [2024] 5 S.C.R.

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6. The appellant challenged the order of Sessions Court before the
High Court. The same was upheld. It is against the aforesaid two
orders, the appellant is before this Court.
7. Learned counsel for the appellant submitted that both the parties
namely the appellant and the respondent no.1 came in contact
through a matrimonial site (name withheld) and thereafter meetings
were held at Visakhapatnam on 09.03.2018 and 10.03.2018 in the
presence of the respondent nos.2 and 3. The respondent no.1 was
earlier married as was even disclosed by her on the matrimonial
site. At the time of meeting the appellant was shown a smudged
copy of the divorce order passed in favour of the respondent no.1
on mobile phone. On the document, the date could not be clearly
seen as the copy of the order was not clear. It was stated that the
order is pending signatures of the Judge. Thereafter, the marriage
of the parties was solemnized on 28.04.2018. The respondents
dishonestly misrepresented that they are not financially well, and
thereby induced the appellant to part with ₹ 2 lakhs and bear the
entire expenses of the marriage.
7.1 On 16.06.2018, when respondent no.1 visited the doctor for a
checkup, she was found to be pregnant. She wanted to undergo
an abortion, but when confronted by the appellant, the reason
therefore she told that she had not yet obtained divorce from
her previous marriage. The document which was shown to him
on mobile phone was forged. This shows that the consent for
marriage was obtained dishonestly. The appellant was taken
aback. When confronted, the respondent no.1 threatened him
of filing false cases, which may lead to his dismissal from
Government service besides tarnishing his image.
7.2 As the appellant was in shock, he was left with no option but to
file complaint with the police on 08.07.2018. However, no action
was taken on the complaint. Thereafter, the appellant preferred
criminal complaint before the Magistrate on 20.07.2018.
7.3 Immediately after coming to know about the filing of the criminal
complaint by the appellant, the respondent no.1 approached
the Family Court, Panvel on 25.07.2018 where the Divorce
Petition filed by her first husband under Sections 13(1)(i) and
13(1) (i-a) of the 1955 Act was pending for more than 6 months.
The respondent no.1 filed an application seeking conversion
[2024] 5 S.C.R. 541

Aniruddha Khanwalkar v. Sharmila Das & Others

thereof to a divorce by mutual consent under Section 13-B of
the 1955 Act. After accepting the application the divorce was
granted on the same day.
7.4 In the complaint filed by the appellant he led both documentary
and oral evidence. Based on the evidence produced by the
appellant, a prima facie case was established. Consequently,
the Magistrate issued process against the respondents to face
trial under Sections 494, 420, read with Section 120-B, IPC.
7.5 Aggrieved by the same, the respondents preferred Revision
Petition before the Sessions Judge. However, without there being
any valid reason, the Sessions Judge set aside the summoning
order with reference to respondent no.1 under Section 420
of IPC and with reference to respondent nos.1 and 2 under
Section 420 read with Section 120-B of IPC; and confirmed the
order of Trial Court with reference to summons issued against
respondent no.1 under section 494 of IPC.
7.6 Challenge was made by the appellant to the aforesaid order
before the High Court raising the contention that the Court
without appreciating the facts of the case, which are self-
speaking, dismissed the Revision Petition. The impugned order
deserves to be set aside, as a prima facie case is made out
showing that the appellant had been dishonestly induced by
the respondent nos.1, 2 and 3 to believe that the respondent
no.1 had obtained divorce by showing him a forged order of
divorce from earlier marriage knowing well that it had not yet
been dissolved as on the date of marriage with the appellant,
and thereby dishonestly induced him to marry respondent no.1.
The respondents are liable to face trial under Section 420 read
with Section 120-B, IPC for the reason that all of them had
conspired with each other to dishonestly induce the appellant into
marrying respondent no.1 and parting away with huge amount.
8. On the other hand, learned counsel for the respondents submitted
that even on the basis of the pleaded facts and the material produced
by the appellant before the Magistrate, no offence under Section
420, IPC can be made out. It cannot be said to be a case of criminal
conspiracy and no offence of cheating is made out against the
respondents. There is no error in the orders passed by the Sessions
Court or the High Court. There was no concealment or cheating at
542 [2024] 5 S.C.R.

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the behest of the respondents as they had clearly disclosed all the
facts to the appellant from the very beginning. The appeal deserves
to be dismissed.
9. Heard learned counsel for the parties and perused the relevant
referred record.
10. The appellant and the respondent no.1 came in contact through a
matrimonial site. The appellant was already divorced whereas the
respondent no.1 had uploaded her status as “process of divorce
is under consideration.” After initial conversation, the appellant
along with his family members were invited to visit Visakhapatnam,
where they had interaction with the respondents. At the time of the
meeting the appellant was told that the respondent no.1 was earlier
married at Mumbai and the divorce had already taken place. On
being asked about the copy of the decree of divorce it was stated
that the same is pending for signature of the Judge concerned and
will be provided in due course. The respondents had shown to the
appellants an unclear photocopy of the decree of divorce which was
believed to be true. On 11.03.2018, the appellant gave his consent
for the marriage. Date was fixed as 28.04.2018. The respondents
pointed out that their financial condition was not good to come to
Gwalior for the marriage along with their other relatives. As a result,
the appellant booked tickets for the respondents and their relatives
from Visakhapatnam to Gwalior and vice-versa, and also gave ₹ 2
lakhs cash to the respondents as expenditure for marriage.
11. On 16.06.2018, on account of some medical complication the
appellant as well as the respondent no.1 rushed to the clinic of a
lady doctor in Shivpuri (Madhya Pradesh), where couple resided
after their marriage. The doctor disclosed that the respondent no.1
was pregnant. The joy of the appellant knew no bounds whereas the
respondent no.1 was very sad. The message was even conveyed
to the family members of the appellant as well as the respondent
no.1. The respondent nos.2 and 3 were not happy. The appellant
was surprised with the reaction. Later, when the reason was asked
by the appellant from respondent no.1, he was told that she is yet
to get divorce from her previous husband. It was a shock of life for
the appellant. It was nothing else but cheating by showing a fake
decree of divorce. It was for this reason only that the respondent no.1
wanted to get the pregnancy aborted. The appellant felt cheated.
[2024] 5 S.C.R. 543

Aniruddha Khanwalkar v. Sharmila Das & Others

When he told that he would take action against the respondents, he
was threatened with criminal cases of various matrimonial offences,
which he claimed to have been filed.
12. Written complaint was filed by the appellant to the Superintendent
of Police of Shivpuri, Madhya Pradesh on 07.07.2018 and to the
Station in-Charge, Physical Shivpuri on 08.07.2018. However, no
action was taken. It was thereafter, that the complaint was filed in
the court before the Magistrate on 20.07.2018. The Trial Court after
recording the preliminary evidence summoned the respondent no.1
to face trial under Sections 494 and 420 read with Section 120-B,
IPC and the respondent nos.2 and 3 to face trial under Section 420
read with Section 120-B, IPC.
12.1 The aforesaid order was challenged by the respondents before
the Additional Sessions Judge. The Sessions Court held that
no offence punishable under Section 420 read with Section
120-B, IPC was made out as the factum of earlier marriage
of the respondent no.1 was clearly disclosed to the appellant.
The Sessions Judge failed to appreciate the fact that certain
events had taken place thereafter, namely, apprising the
appellant about the decree of divorce having been passed
and showing the forged copy thereof to him on mobile. The
Learned Sessions Court has considered the revision against
the summoning order as if after trial the findings of conviction
or acquittal was to be recorded. It was a preliminary stage of
summoning. For summoning of an accused, prima facie case
is to be made out on the basis of allegations in the complaint
and the pre-summoning evidence led by the complainant.
13. In a challenge by the appellant to the aforesaid order in the quashing
petition, the High Court dismissed the petition without recording any
reasons.
14. Considering the material on record, in our opinion the approach of
the Learned Sessions Court and the High Court in setting aside
the summoning order against the accused persons i.e. respondent
nos.1, 2 and 3 under Section 420 read with Section 120-B IPC is
not legally sustainable.
15. For the reasons mentioned above from the facts as pleaded in
complaint and the evidence led by the appellant, prima facie case
544 [2024] 5 S.C.R.

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was made out for issuing process against the respondents to face
trial for the offence punishable under Section 420 read with Section
120-B, IPC, for which they were summoned.
16. The appeal is accordingly allowed. The impugned orders passed
by the High Court and the Sessions Court are set-aside and that of
the Magistrate is restored. It is made clear that nothing said above
shall be taken as final opinion on merits of the controversy. The Trial
Court shall decide the case on its own merits on the basis of the
evidence led by the parties.

Headnotes prepared by: Result of the case:
Himanshu Rai, Hony. Associate Editor Appeal allowed
(Verified by: Shadan Farasat, Adv.)