The absence of evidence substantiating an act of adultery invalidates summons under Section 497 IPC, particularly following its declaration as unconstitutional.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Section 497 - Quashing of summons under adultery charges - Court found that absence of clear evidence of sexual relations between the petitioner and the complainant's wife negates the essential ingredients of adultery as stipulated in IPC. The declaration of Section 497 as unconstitutional in Joseph Shine v. Union of India is applicable to pending cases. Impugned order summoning the petitioner is set aside. (Paras 17-34)

(B) Criminal Law - Adultery - Definition and essential ingredients elucidated; sexual intimacy without consent of husband not established. (Paras 19-34)

(C) Evidence - Lack of cogent evidence renders the presumption of adultery baseless. (Paras 7, 24-33)

Facts of the case:
The petitioner was summoned for alleged adultery with the complainant's wife, based on a complaint following observations of their interactions. The petitioner contended lack of evidence for the allegations and judicial precedent established his position.

Findings of Court:
The court reiterated that the complainant failed to establish the act of adultery and relied on presumptions rather than substantive evidence.

Issues: Whether the evidence presented upheld the charges under Section 497 IPC against the petitioner, and applicability of Joseph Shine ruling to the case.

Ratio Decidendi: The court held that the absence of clear evidence of sexual relations between person and married woman disallowed any presumption of adultery; the legal framework had been rendered unconstitutional.

Result: Petition granted; summons quashed.

Table of Content
1. summary of complaint and background facts (Para 1 , 2 , 3 , 4 , 5 , 6)
2. defense arguments and assertions (Para 7 , 8 , 10 , 11 , 13)
3. analysis of section 497 ipc and related case law (Para 17 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26)
4. applicability of judicial precedents on section 497 (Para 28 , 29 , 30 , 32 , 33)
5. final order quashing complaint (Para 34)

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’ hereinafter) has been filed for quashing of the Order of the learned ASJ dated 28.04.2018 whereby the Petitioner has been summoned under Section 497 of the Indian Penal Code, 1860 (‘IPC’ hereinafter) in Complaint Case No.153/1 filed by Respondent No.2-Mr. Inderjeet Singh, the Complainant (husband of Ms. Seema Satsangi).

2. Briefly stated, Inderjeet Singh got married to Seema Satsangi on 28.02.1998 at Vikas Puri, New Delhi as per Hindu rites and customs. From their wedlock two sons were born.

3. The Complainant/Respondent No.2 had alleged that in the month of August, 2009 his wife started going to the Park near their house on the pretext of walk after dinner. He found in December, 2009 that Ashok Kumar Singh (Petitioner) had been making regular calls to his wife varying from 2 minutes to one hour and even at odd hours between 09:00 P.M. to 11:30 P.M. He, thus, realized that his wife was having an extra marital affair with him.

4. According to him, his wife along with Ashok Kumar Singh went to Lucknow on 21.01.2010 in a flight, where they stayed together in the night of 21.01.2010 in Hotel Piccadilly as husband and wife and had sexual- intercourse without the consent of the Complainant. On their return on 22.01.2010, he confronted his wife who told him to leave if he had any problem with their relationship.

5. He served a Legal Notice dated 05.04.2010 on his wife to restrain her relationship with Ashok Kumar Singh. Thereafter, he filed the Criminal Complaint under Section 497 IPC.

6. The learned M.M. after recording the pre-summoning evidence, discharged Inderjeet Singh vide Order dated 09.09.2016. He preferred a Revision Petition No.57620/16 before the learned ASJ who vide impugned Order dated 28.04.2018, set aside the Order of the learned M.M and summoned the Petitioner. Aggrieved by the Order of summoning, he has filed the present Petition.

7. The Petitioner has asserted that the learned ASJ has ignored the documentary evidence and has relied on the oral statement of the Complainant. It has not been appreciated that the stay of the Petitioner with his wife in the same room in the night of 21.01.2010 at Hotel Piccadilly, Lucknow, has not been established. In the absence of cogent evidence thereof, mere presumption of the Complainant that they resided in the same room or that they must have been involved in sexual activity, is presumptuous and no evidence to this effect is available.

8. It is further submitted that the learned M.M had discharged the Petitioner vide a detailed and well reasoned Order dated 09.09.2016. Such discharge is construed as an acquittal and the Revision Petition was not maintainable. The only option was to file a Leave to Appeal before this Court, as has been held by the High Court of Punjab & Haryana in Harvinder Singh vs. State of Punjab Criminal Revision No.1275 of 2011 (O&M) dated 28.01.2013 and also in Vinay Kumar vs. State of U.P. and Anr. 2007 Crl. L.J.3161 (AP).

9. It is, therefore, submitted that the impugned Order be set aside.

10. The Respondent No.2-Inderjeet Singh in his Reply has controverted all the assertions made in the Petition. It is explained that when he confronted his wife-Seema Satsangi on her return from Lucknow, she filed a false and frivolous case under Section 12 of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ hereinafter) against him which was subsequently withdrawn by her. Furthermore, the Petitioner had admitted in Reply to Legal Notice that he had travelled with his wife to Luckno