Punjab-Haryana High Court
Date Of Decision: 17.09.2013 vs State Of Punjab And Another on 17 September, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Kaur Gurpreet
2013.09.25 10:58
Crl. Misc. No.M-3685 of 2012 1
I attest to the accuracy and
integrity of this document
High Court, Chandigarh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-3685 of 2012
Date of Decision: 17.09.2013
Gulzar Singh and another ....Petitioners
Versus
State of Punjab and another ....Respondents
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. I.P.S Kohli, Advocate
for the petitioners.
Mr. Premjit S. Hundal, A.A.G., Punjab
for the respondent-State.
Mr. Jagjit Singh, Advocate
for respondent No.2.
*****
DAYA CHAUDHARY, J.
Petitioners namely Gulzar Singh and Surjit Kaur have approached this Court by way of filing the present petition for quashing of FIR No.17 dated 21.02.2010 under Sections 498-A, 420 and 120-B IPC registered at Police Station Kotwali, Kapurthala as well as order dated 01.10.2011 passed by the Additional Chief Judicial Magistrate, Kapurthala, vide which, the charges have been framed under the aforesaid sections along with all the subsequent proceedings arising therefrom.
Briefly, the facts of the case are that the complainant- respondent No.2-Dharwinder Kaur Cheema got married with one Sarabjit Singh on 30.03.2008. However, after marriage, some matrimonial Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 2 I attest to the accuracy and integrity of this document High Court, Chandigarh differences arose between the parties and the complaint was made by respondent No.2-Dharwinder Kaur Cheema. However, on the basis of said complaint, the FIR, in question, against the accused persons was registered. The petitioners are the maternal grandfather and grandmother (nana and nani) of the husband of the complainant-respondent No.2. The other accused are the husband, mother-in-law, father-in-law and sister-in-law. The husband of the complainant-respondent No.2 is in Canada.
The present petition has been filed by the petitioners, who are the maternal grand parents of the husband of the complainant-respondent No.2 on the ground that they have falsely been implicated in the case, whereas, no offence is made out against them. The only allegations against them are that they were mediators and no specific allegations are there against them.
Learned counsel for the petitioners submits that both the petitioners are more than 75 years of age and are residing at different place. He further submits that the petitioners have no concern with the family affairs of the complainant and her husband. The FIR has been registered against the petitioners just to harass and humiliate them because being in relations with the husband of the complainant-respondent No.2 as there is always a tendency to implicate all family members and relatives of the husband with inflated and exaggerated allegations when the relations between the husband and wife become strained, which is totally misuse of process of law. Learned counsel also submits that no offence of cheating is made out against the petitioners as neither it was a case of deception either by making a false or misleading representation or by dishonest concealment or by any other act or omission or fraudulent or dishonest inducement on their part to deliver any property or to consent to Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 3 I attest to the accuracy and integrity of this document High Court, Chandigarh the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything. Learned counsel also submits that no specific allegations are there in the FIR that the complainant has been cheated by any action on the part of petitioners. Moreover, no offence is alleged to have taken place within the jurisdiction of Kapurthala as the complainant is not residing within the jurisdiction of said police station. The complainant is residing in Canada since the year 2005 and the present FIR has been registered against the petitioners in the year 2010 and proceedings are totally misuse of process of law.
Learned counsel for the petitioners has also brought to the notice of this Court that an affidavit has been filed by the complainant, wherein, it has specifically been mentioned that huge amount was spent on marriage and she took her husband Sarabjit Singh to Canada by spending huge amount. The allegations are against the husband and her-in-laws' and also against the present petitioners.
Learned counsel for respondent No.2-complainant opposes the submissions made by learned counsel for the petitioners on the ground that the charges have been framed and the petitioners were having remedy to challenge the charge but instead of avaling alternative remedy, the present petition for quashing of FIR has been filed, which is not maintainable.
Learned State counsel submits that the case is at the evidence stage and out of 12 prosecution witnesses, the statements of four witnesses have been recorded.
Heard the arguments of learned counsel for the parties and have also perused the FIR and other documents on the file. Admittedly, the petitioners are maternal grandfather and maternal grandmother (nana and nani) of the husband of the complainant. Along with the petitioners, the FIR Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 4 I attest to the accuracy and integrity of this document High Court, Chandigarh has been registered against other family members like husband, mother-in- law, father-in-law and sister-in-law of the complainant-respondent No.2 and they are facing trial and the husband of the complainant is residing in Canada. The divorce petition filed by him has been allowed. The present petition has been filed for quashing of FIR on the ground that the petitioners have no concern in any manner with the alleged allegations and they have been implicated on the basis of vague allegations as there is no specific allegation against them. They have been implicated being relatives of the husband of the complainant.
However, the quashing of the present petition has been opposed on the ground that the charges have been framed against the petitioners and the alternative remedy was available to the complainant to challenge the charge but the same has not been availed.
On perusal of contents of the FIR, the only allegation against the petitioners are that they were mediators in the marriage and all the accused, in connivance with each other, have cheated the complainant for sending the accused-husband Sarabjit Singh to Canada and have ruined the life of the complainant. No specific allegation is there against the present petitioners. Even nothing has been mentioned as to how the complainant has been cheated. No essential ingredients of offence of cheating are there in the allegations as neither any misleading representation or dishonest concealment is there on the part of the petitioners nor fraudulent or dishonest inducement is there by which the complainant has been asked to deliver any property or has been asked to deceive to do or omit to do anything. There is no action on the part of the petitioners to cause damage or harm to the complainant.
To constitute an offence under Section 420 IPC, there should not only be the cheating, but as a consequence of such cheating, the Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 5 I attest to the accuracy and integrity of this document High Court, Chandigarh accused should have dishonestly induced the complainant to deliver any property to any person or to make, alter or destroy wholly or in part a valuable security or anything signed or sealed which is capable of being converted into a valuable security. It is not a case of the complainant that she has been misled by any representation on the part of the petitioners or any dishonest inducement to deliver any property. As far as the offence under Section 498-A IPC is concerned, neither any allegations of cruelty are there nor any demand of dowry is there.
From the perusal of the contents of the FIR, it appears that not even a single allegation of demand of dowry or harassment in lieu thereof has been made and as such, no offence under Section 498-A IPC is made out. It appears that the respondent No.2-complainant was bent upon to enrope the entire family.
The Single Bench of this Court in a case of Divya alias Babli and others v. State of Haryana and another reported as 2006 (4) RCR (Criminal) 322, while relying on the judgement of the Apex Court rendered in the case of Kans Raj v. State of Punjab and others reported as 2000(2) RCR (Crl.) 695 held as under:-
"22. Another judgement rendered in Shinder Pal @ Kakke's case (supra) relied by Mr. Saini, this Court while relying upon a judgement of Apex Court rendered in Kans Raj v. State of Punjab and others, AIR 2000 Supreme Court 2324 wherein their Lordships have observed that a tendency has developed for roping in all the relations in dowry cases which ultimately weakens the case of the prosecution even against the real accused.
23. My view is also fortified by the latest judgment of Hon'ble Supreme Court rendered in Ramesh Kumar and others vs. State of Tamil Nadu, 2005 (2) R.C.R. (Criminal) 68 in which their Lordships while quashing Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 6 I attest to the accuracy and integrity of this document High Court, Chandigarh the proceeding against sister-in-law who was staying at a different place observed that there were bald allegations to rope in as many relations of the husband.
24. Another latest judgment of Apex Court rendered in Sushil Kumar Sharma vs. Union of India and others, 2005 (3) R.C.R.(Criminal) 745 where issue of striking down Section 498-A IPC had sprouted, their Lordships observed that in such type of cases the "action" and not the "section" may be vulnerable and the Court by upholding the provisions of law may still set aside the action, order or decision and grant appropriate relief to the persons aggrieved. Their Lordships while dealing with the dowry menace, however, observed in para 17 as under:-
" The object of the provision is prevention of the dowry menace. But as he has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomny (ignominy?) suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well- intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 7 I attest to the accuracy and integrity of this document High Court, Chandigarh unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalised statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view."
Lately, a tendency has developed for roping in all the relations in matrimonial disputes in order to browbeat and pressurize the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made.
In the present case also, all the family members have been Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 8 I attest to the accuracy and integrity of this document High Court, Chandigarh enroped. A perusal of the FIR shows that the allegations against the present petitioners are not specific but vague. The specific allegations are only against the husband and in-laws of respondent No.2-complainant.
The powers under Section 482 Cr.P.C can be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. This power can be exercised under the following circumstances :
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer wihtout an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 9 I attest to the accuracy and integrity of this document High Court, Chandigarh concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provison in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
A perusal of the allegations of the FIR in the instant case reveals that the present case squarely falls in that category of cases which can be quashed by the High Court in exercise of its inherent power under Section 482 Cr.P.C.
It has been held in the judgment of Hon'ble the Apex Court titled as Dhariwal Tobaco Products Limited and others vs State of Maharashtra and another 2009(1) RCR (Criminal) 677 that the petitition under Section 482 Cr.P.C cannot be dismissed only on the ground that the remedy of revision was available to the petitioners.
Hon'ble the Apex Court in Janata Dal v H.S. Chowdhary and others 1992(4) SCC 305 observed thus :
"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exists. The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise.Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 10 I attest to the accuracy and integrity of this document High Court, Chandigarh
Courts must be careful to see that its decision in exercise of this power is based on sound principles."
Hon'ble the Apex Court in Roy V.D. v State of Kerala 2000(4) RCR (Criminal) 762 observed thus :-
"18. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section 482 Cr.P.C to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."
Hon'ble the Apex Court in Zandu Pharmaceutical Works Ltd. & others vs Mohd. Sharaful Haque and another 2004(4) RCR (Criminal) 937 observed thus :-
" It would be an abuse of process of the court to allow any action which would result in inustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into Kaur Gurpreet 2013.09.25 10:58 Crl. Misc. No.M-3685 of 2012 11 I attest to the accuracy and integrity of this document High Court, Chandigarh the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
It has also been held in various judgments that in case, no offence is made out on the basis of allegations in the FIR, then the FIR can be quashed even after framing of charge.
Keeping in view the authoritative enunciation of law laid down in the aforementioned judgments and in the light of facts and circumstances of the present case, this Court is of the considered opinion that continuation of criminal proceedings would tantamount to abuse of process of law and it is expedient in the interest of ends of justice that criminal case is put to an end.
In this view of the matter, the petition is allowed and FIR No.17 dated 21.02.2010 under Sections 498-A, 420 and 120-B IPC registered at Police Station Kotwali, Kapurthala along with all subsequent proceedings arising therefrom qua the petitioners namely Gulzar Singh and Surjit Kaur are quashed.
(DAYA CHAUDHARY) 17.09.2013 JUDGE gurpreet