Punjab-Haryana High Court
Gagan Preet Kaur And Another vs Nihal Singh on 29 October, 2010
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
Crl. Misc. No. M-6273 of 2010
[1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Misc. No. M-6273 of 2010
Date of Decision: October 29, 2010
Gagan Preet Kaur and another
.....Petitioners
Vs.
Nihal Singh
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. Balsher Singh, Advocate
for the petitioners.
Mr. Malkiat Singh, Advocate
for the respondent.
-.-
M.M.S. BEDI, J.
Petitioner No.1-Gagan Preet Kaur and her father Gurbax Singh petitioner No.2, have sought the quashing of private compliant filed by respondent under Sections 380, 325, 323 read with Section 34 IPC titled Nihal Singh Vs. Gurbax Singh and another pending in the Court of Judicial Magistrate Ist Class, Amritsar and the summoning order dated August 6, Crl. Misc. No. M-6273 of 2010 [2] 2009 passed by Judicial Magistrate Ist Class, Amritsar, inter-alia on the ground that the complaint has been filed with an oblique motive and with a vindictive mind as the son of the complainant, namely, Mandeep Singh has been convicted under Sections 406, 498A IPC by Judicial Magistrate Ist Class on November 10, 2008 (annexure P-1) and to pressurize her to withdraw her claim under Section 125 Cr.P.C.. In the application, the husband of petitioner No.1 had been directed to pay maintenance at the rate of Rs.3000/- per month to petitioner No.1 and Rs.2000/- per month to her son. The husband of petitioner No.1 had filed a divorce petition on the ground of desertion and cruelty on June 3, 2009. In the said divorce petition he had nowhere mentioned regarding any incident of theft where the petitioners had attacked the respondent. Copy of the divorce petition has been placed on record as annexure P-2. It is claimed that the petitioner is working as Punjabi Mistress in Government School and that she had forged experience certificate to procure service. A complaint was marked for enquiry to SHO detective Amritsar City. It was found during investigation that petitioner No.1 had not given any such certificate for getting service and there was no such condition of experience for getting the job. She had obtained the job only on the basis of merit. A similar complaint marked to Director Education Department, Punjab was also found to be forged as per copies of the report annexures P-3 and P-4. The allegations in complaint annexure P-7-Nihal Singh Vs. Gurbax Singh against petitioners indicating that the complainant is retired from Punjab Roadways as Inspector on August 31, 2006. His son Mandeep Singh is married to petitioner No.1 and Crl. Misc. No. M-6273 of 2010 [3] daughter of petitioner No.2 Gurbax Singh on May 26, 2002 and one son was born out of the wedlock who is 2 ½ years old. As per the allegations in the complaint, petitioner No.1 had got registered a case of demand of dowry at Police Station Kathu Nangal and after registration of the case, petitioner No.1 went away to live with her parents' house. Mandeep Singh had given a complaint against petitioner No.1 in the Women Cell which was being inspected by Jaswant Kaur, Incharge Women Cell, who had called both the parties on May 30, 2007. The complainant had gone to the Police Station alongwith his son on May 30, 2007 when the complainant alongwith his friend Randhir Singh who is also serving in Punjab Roadways, was going towards Bus Stand on his scooter at about 4.30 p.m. and both of them had reached near the turn of Kot Atma Singh, a car stopped in front of the scooter. Petitioners No.1 and 2 came out of the car alongwith one unidentified person who raised a lalkara to catch hold the complainant and his friend and teach them a lesson. One person gave blow on his head with base ball bat which he was holding in his hand. The complainant fell down. The daughter-in-law of complainant put her dupatta around his neck and dragged him. When Randhir Singh pleaded with them not to do this, petitioner No.2- Gurbax Singh tried to attack with his kirpan on the head and in order to save himself he raised his arm and the kirpan injured elbow of his left arm. The petitioners threatened to kill them. Purse of the complainant was pulled out from his pocket with Rs.4000/- and I-card. His gold chain was pulled from the neck but the daughter-in-law of the complainant did not pay heed and dragged him with dupatta. As a result of Crl. Misc. No. M-6273 of 2010 [4] which he suffered injuries on the back. On the basis of the preliminary evidence led by the complainant and the police report dated June 1, 2007 Ex.C3/A and the statement of Doctor N.P.Singh, C4 and MLR Ex.PW3/A and the statement of Dr.Poonam Ohri, Radiologist, the petitioners have been summoned to face trial under Sections 380, 325, 323 read with Section 34 IPC.
Counsel for the petitioners has contended that the private compliant filed by respondent against his daughter-in-law petitioner No.1 and her father petitioner No.2 suffers from the vice of malafide and would fall within the ambit of parameters laid down in State of Haryana Vs. Bhajan Lal, AIR 2004 SC 604. It is contended that the story is improbable as a daughter-in-law is not expected to make an attempt to strangulate his father-in-law by roping his dupatta by the neck as alleged. The enmity of the complainant with the petitioner is apparent. The occurrence is stated to be of May 30, 2007 and the report was allegedly made to the police on June 1, 2007. The SHO had found that there was no truth in the incident. The police had visited the hospital to get the statement of the injured but he refused to make any statement although he was declared fit to make statement by the doctor. There has been civil and criminal litigation pending between petitioner No.1 and her husband who happens to be son of respondent. FIR No.150 of 2004 was registered against the husband of petitioner No.1 and complainant father-in-law and mother-in-law. The husband of petitioner No.1 was convicted on November 10, 2008. A civil suit has been filed by Bhavtaj Singh son of petitioner No.1 with regard to Crl. Misc. No. M-6273 of 2010 [5] the property which is jointly owned by the respondent and other coparcener for maintenance, (copy of the plaint is annexure P-6). Petitioner No.1 and her son have been granted the maintenance under Section 125 Cr.P.C.. On earlier occasion also an attempt was made by the complainant to involve petitioner No.1 in a case of fake experience certificate. The said complaint was marked to SHO Detective, Amritsar City. It was found that the complaint was false. Copies of the reports have been placed on record as annexure P-3 and P-4. A divorce petition has been filed by the husband of the petitioner on June 3, 2009 on the ground of cruelty and desertion. The incident which is subject matter of the complaint is not mentioned therein. The incident had been reported to the police. The matter has been enquired into and the allegations of complainant were found to be false.
I have considered the facts and circumstances of this case and appreciated all the facts and circumstances in the light of the parameters laid down by the Supreme Court in exercise of powers under Section 482 Cr.P.C. to quash the FIR and criminal proceedings as per the judgment of Bhajan Lal's case (supra). The Hon'ble Supreme Court has given a note of caution that power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by the Court are as follows:-
"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.
Crl. Misc. No. M-6273 of 2010 [6]
2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.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 F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.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 proceeding against the accused.
6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or Crl. Misc. No. M-6273 of 2010 [7] where there is a specific provision 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."
In Shakson Belthissor v. State of Kerala and another, (2009) 14 SCC 466, the Apex Court has held that one of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint.
Counsel for the respondent has placed reliance on State of Punjab and others Vs. Inder Mohan Chopra and others, 2009 (2) RCR (Crl.) 241 to contend that mere malafide on part of the complainant is not sufficient enough to quash the FIR if the material collected during investigation and evidence led in the court is sufficient enough to proceed against the accused.
The conviction of son of the complainant by Judicial Magistrate Ist Class in offence under Sections 406, 498A IPC on November 10, 2008 is established from annexure P-1. The son of the respondent Mandeep Singh has filed a petition for divorce against petitioner no.1 in June 2009 on the ground of cruelty and desertion. Had his father been Crl. Misc. No. M-6273 of 2010 [8] beaten up by the petitioners on May 30, 2007, the husband of petitioner No.1 would not have omitted the said incident in his petition. A perusal of the divorce petition annexure P-2 under Section 13 of the Hindu Marriage Act indicates that the petition is silent about any occurrence of May 30, 2007. Annexures P-3 and P-4 are the enquiry reports indicating that respondent had made complaints against petitioner No.1 regarding the securing of service on the basis of forged experience certificate. The said complaints were filed in June 2009 but were found to be false. Son of petitioner No.1 had filed a suit for declaration claiming ownership in the coparcener property with the complainant and his father, copy of the plaint is annexure P-6. The enmity of complainant with his daughter-in-law and her father is apparent from the abovesaid documents. The story of the complainant that he was beaten up by his daughter-in-law, her father and one other person after he having been way-laid, is improbable. The story that she had stolen currency notes alongwith I-card and purse and dragged him is manifestly attended with malafide and the complaint on the face of it is maliciously instituted and even the allegations are absurd and improbable. No prudent person can ever reach a conclusion that petitioner No.1 who is availing so many remedies on civil and criminal side to take law in her hands to cause injuries to her father-in-law.
I have gone through the injuries which are lacerations and abrasions. The fracture of alna which is attributed with kirpan to petitioner No.2 is also not prima facie corroborated by medical evidence. There were five injuries out of which injury Nos. 1, 3, 4 and 5 were the result of blunt Crl. Misc. No. M-6273 of 2010 [9] weapon whereas injury No.2 was observed to be difficult to ascertain. There is no kirpan injury corresponding to the fracture of alna which factor is indicative of the false implication. The complainant does not seem to have made any statement to the police. This Court is of the opinion that initiation of proceedings and continuation of proceedings against the petitioner is vitiated and the matter falls within the ambit of parameters laid down in Bhajan Lal's case (supra).
Petition is allowed. The criminal complaint under Sections 380, 325, 323 read with Section 34 IPC, the summoning order and all the criminal proceedings emanating therefrom are hereby quashed.
October 29, 2010 (M.M.S.BEDI) sanjay JUDGE