Jammu & Kashmir High Court
Manmeet Kour vs Harneet Kour And Ors. on 1 February, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
CRMC No.201/2017 & IA No.1/2017
Date of order:01.02.2019
Manmeet Kour vs Harneet Kour & ors
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner/appellant (s) : Mr. Anil Khajuria, Advocate.
For respondent(s) : Ms. Deepali Arora, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The petitioner, Manmeet Kour, alleged second wife of respondent No.2 herein, has filed the present petition under Section 561-A Cr.P.C., for quashing of the complaint titled "Harneet Kour vs Joginder Singh and others" as well as the order dated 26.07.2016 by virtue of which the trial court (Chief Judicial Magistrate, Jammu) has taken cognizance against the petitioner for commission of offence under Section 494/109 RPC.
2. In the petition, it has been stated that respondent No.1 instituted a criminal complaint against the petitioner and three other accused persons (performa respondents herein) and she had made several allegations against her husband and other relatives in the said complaint. The respondent no.1, apart from making several allegations against her husband and other relatives, had further made several averments in the complaint under reference wherein she has alleged that the petitioner had married to the performa respondent no.2 on 21.06.2015. It is further stated that respondent no.1, in her complaint, had in fact admitted that she had no personal CRMC No.201/2017 Page 1 of 11 knowledge in respect of the marriage, however, she has stated that one Chandanpal Singh, a resident of Model Town Gangyal, Jammu has allegedly witnessed the marriage on 21.06.2015, which was allegedly solemnized according to Sikh Rites and Customs in Gurudwara at Akhnoor. Therefore, from the perusal of the complaint, it is evident that the respondent no.1 had in fact attributed her knowledge in respect of alleged marriage on the information received from the so called witness namely Chandanpal Singh. That the impugned complaint was filed before the learned CJM, Jammu on 28.05.2016 i.e., almost a year after the alleged marriage was solemnized, however, the complainant had stated in the complaint that she had got knowledge in respect of alleged marriage from one Chandanpal Singh immediately after the same was solemnized on 21.06.2015; that the learned Magistrate has taken cognizance on 26.07.2016 without appreciating the true facts in this regard.
3. The petitioner being aggrieved of the order impugned dated 26.07.2016, has challenged the same in the present petition on the following grounds:
a) That the criminal proceedings lodged at the instance of private respondent make out a glaring example of abuse of process of court and on that short score only the criminal proceedings including the order taking cognizance are liable to be quashed.
b) That the petitioner most humbly states that she has been falsely implicated in the complaint at the instance of respondent No.1 as even by the perusal of the complaint and the preliminary statements recorded kin support thereof, no offence can be said to have been made out against the petitioner.
c) That it is trite law that in every complaint for the commission of offence u/s 494 RPC it is incumbent upon the complainant to not only prove but there must be a specific allegation in the complaint itself in respect of the essential ceremonies of the marriage, which were performed at the time when the alleged marriage was solemnized and in the absence of the CRMC No.201/2017 Page 2 of 11 religious ceremonies being spelled out in the complaint, no offence u/s 494 RPC can be said to have been committed.
d) That a bare perusal of the complaint would unflinchingly show that the complainant/respondent no.1 has merely averred in the complaint that the alleged marriage was solemnized according to Sikh Rites and Customs in Gurudwara at Akhnoor and on similar lines said fact is sought to be proved through the witness namely Chandanpal Singh. That even from the perusal of the preliminary statements, it transpires that the learned trial court has heavily relied upon the preliminary statement of one Chandanpal Singh, who has also failed to state anything in respect of the ceremonies of the marriage and in his preliminary statement, the said witness has only stated that on 21.06.2015 he had alleged to have seen the petitioner getting married to respondent no.2 before Guru Granth Sahib in accordance with Sikh Rites and Ceremonies.
The aforesaid statement of said witness even is not sufficient to draw any inference of marriage as there is no mention of the necessary ceremonies, which were allegedly performed. Therefore, even if the version of the said witness is taken on its face value, the same fails to make out any case for the commission of offence u/s 494 RPC herein, the petitioner however, strongly refutes the very factum of marriage alleged in the complaint and the aforesaid averments are made only in order to substantiate that even if the complaint, the preliminary statements as well as the other record is considered on its face value, without any demur, the complainant/respondent no.1 miserably failed to make out any case for the commission of offence u/s 494 RPC. Therefore, the learned trial court was legally unjustified to issue process in the complaint and as such the complaint as well as the order impugned dated 26.07.2016 deserved to be set aside.
e) That additionally, the petitioner further states that she was initially married to one Amar Preet Singh and the marriage between the petitioner and her erstwhile husband came to be dissolved by virtue of a decree of divorce by mutual consent on 29.07.2013. It is respectfully submitted that the witness namely Chandanpal Singh and another namely Inderpal Singh happened to be the first cousins of petitioner's erstwhile husband and having regard to the fact that despite the dissolution of marriage between the petitioner and her erstwhile husband on 29.07.2013, the litigation in respect of the maintenance of the child born out of the previous marriage is pending between the petitioner and her erstwhile husband. Moreover, the erstwhile husband of the petitioner has also filed petitioner for the custody of the child against the petitioner. IN the backdrop of the fact that the petitioner is litigating against her erstwhile husband, the respondent no.1 has connived with the two witnesses namely Chandanpal Singh and Inderpal Singh to make out a false and frivolous case against the petitioner. The criminal proceedings lodged at the instance of respondent no.1 are attended by malafides CRMC No.201/2017 Page 3 of 11 and the same are lodged only to wreck vengeance against the petitioner. The criminal proceedings are liable to be quashed on this ground also.
4. I have heard learned counsel for the parties and perused the case file.
5. Learned counsel for the petitioner has reiterated all the grounds taken in the memo of this petition.
6. During the course of arguments, learned counsel for the petitioner in support of his contentions, has relied upon the judgment of the Supreme Court in case titled Lingari Obulamma vs L.Venkata Reddy and others, reported in 1979 AIR (SC) 848; judgments of the Punjab and Haryana High Court in case titled Udha Singh @ Udhapal Singh vs Mohinder Kaur, reported in 1991 (3) R.C.R (Criminal) 646; and in case titled Ashok Kumar Chopra vs Krishna Kumari, reported in 1993 (1) HLR 111 and the judgment of Calcutta High Court in case titled Binoy Kumar Gupta vs. Leela Gupta and another, reported in 2007 (4) Cal. H.C.N. 491.
7. Whereas the learned counsel for the respondents has argued that the present petition is not maintainable because the petitioner has raised disputed question of fact which cannot be entertained in this petition. In the complaint as well as in the statements recorded in support of the complaint, it has been specifically mentioned about date and solemnization of marriage ceremonies.
8. I have given my thoughtful consideration to the whole aspect of the matter. From perusal of the complaint, it reveals that Harneet Kour- respondent No.1 herein filed a criminal complaint against four accused including her husband, parents in law and the present CRMC No.201/2017 Page 4 of 11 petitioner with whom second marriage allegedly has been solemnized.
9. From perusal of documents attached with this petition, it is evident that respondent No.1 filed a complaint before CJM, Jammu under section 494 RPC; in the complaint it has been stated that her marriage was performed with accused No.1/her husband on 19.04.2009 according to Hindu rites and rituals at Jammu; one male child was born out of the wedlock on 28.10.2010; right from the beginning of marriage the attitude of accused No.1/her respondent towards the complainant was not loveable, but cruel and hostile and always harassed physically and emotionally for bringing less dowry; parents-in-law of the accused/her husband also harassed and tortured her for bringing less dowry and also not allowed her to attend the office as she has obtained job of Class-IV on account of death of her father; that even during the pregnancy and after the birth of the child the attitude of accused/her husband not improved and later he become more hostile. After delivery of the child on 28.10.2010, she was sent to her parental house along with the minor child on the pretext that accused person cannot take care of the complainant. Thereafter, after a gap of 10 months with the intervention of some elder members of the family, she was taken back but after remaining there for 4/5 months, she/complainant was forced to leave the matrimonial house after being thrashed and beaten by her husband. It is further stated that the complainant was abused by the accused persons, the complainant tried to find out the reasons why the accused No.1/her husband is not taking care of her and her child, and she came to know that her husband used to make calls during night to somebody and after hectic efforts, she came to CRMC No.201/2017 Page 5 of 11 know that her husband used to call some girl namely Manmeet Kour-petitioner herein, who was at that time also facing a divorce case with her husband. Complainant also found that her husband was having affair with Manmeet Kour-petitioner herein before marriage. When she objected, her husband had thrown her along with her minor child from the matrimonial home, her husband had also filed a divorce petition on 03.07.2012, but thereafter withdrawn the same on 05.11.2012. Thereafter, her husband again filed a divorce petition before the learned Additional District Judge (Matrimonial Cases), Jammu in 2015, which is still pending there. The complainant has lodged a complaint with Women Cell, Jammu on 18.08.2012, against her husband for harassing, ill-treating, beating her; that Manmeet Kour, with whom her husband has relation, has obtained divorce from her husband Amarpreet Singh and she is a mother of girl child namely Minal Kour. That during the pendency of proceedings of divorce petition in the matrimonial court, it is utter shock to the complainant that accused No.1 married to the accused No.4 on 21.06.2015 according to Sikh rites and customs in Gurudwara at Akhnoor; that accused no.2 & 3 were aware of the illicit relations of accused No.1 and 4 and, it is they who encouraged, emboldened and advised accused No.1 to get married with accused No.4 and on their advice accused No.1 has taken such a bold step even during persistence of first marriage with complainant and entered into the second marriage with accused No.4; that the marriage was attended by accused No.2 & 3 and close relatives of accused persons and thus abetted accused No.1 in committing the offence under Sections 494 RPC. The recording of Phone calls, which the complainant received clarifies this fact that CRMC No.201/2017 Page 6 of 11 accused No.1 has married accused No. 4 even during the persistence of first marriage; that Chandanpal Singh S/o Sh. Deedar Singh R/o Model Town Gangyal, Jammu, who was incidentally present in Gurudwara has witnessed the marriage, which was performed on 21.06.2015 according to Sikh rites and customs in Gurdwara at Akhnoor, being cousin he immediately informed the complainant; that the accused No.1 to 3 have sold their old house and bought a new house at H.No.16 Sector-7, Lane No.0, Nanak Nagar, Jammu and their neighbours namely (I) Rajvinder Kour W/o S. Manmeet Singh R/o H. No. 9, Sector-7, Nanak Nagar, Jammu and neighbours of Manmeet Kour (accused No.4), (ii) Tej Kour W/o S.Manmohan Singh R/o 94, Sector-4, Model Town, Digiana, Gangyal, Jammu informed about the factum of the marriage of accused No. 1 and 4 and even has witnessed all the ceremonies performed at their residence; that Manmeet Kour i.e accused No.4 is staying with accused No.1 at his residence as husband and wife; that the complainant on investigating about the marriage of the accused Nos.1 and 4 came across the various video clips and witnesses and recording of different phone calls, evidencing the factum of performing of illegal second marriage between accused No.1 and 4. Even the daughter Minal Kour of accused No.4 has clarified the factum of marriage that her mother is remarried to accused No.1 and has shown the pictures of accused No.1 and 4 of their visit to Shimla for honeymoon; that the accused No.1 is married till date with complainant and no divorce has taken place, so he has committed crime under Section 494 RPC.
10. Court below after recording statements of complainant and witnesses issued process against her husband u/s 494 RPC and CRMC No.201/2017 Page 7 of 11 against petitioner-the alleged second wife and parents-in-law under section 494/109 RPC on 26.7.2016.
11. In present case, the various and substantial grounds taken in the petition are that there must be a specific allegation in the complaint itself in respect of the essential ceremonies of the marriage, which were performed at the time when the alleged second marriage was solemnized and in the absence of the religious ceremonies being spelled out in the complaint so the complaint is not maintainable; that it has been merely averred in the complaint that the alleged marriage was solemnized accordingly to Sikh Rites and Customs in Gurudwara at Akhnoor; that witness has said that on 21.06.2015 he had seen the petitioner getting married to respondent no.2 before Guru Granth Sahib in accordance with Sikh Rites and Ceremonies; that the preliminary statements as well as the other record is considered on its face value, without any demur, the complainant/respondent no.1 miserably failed to make out any case for the commission of offence u/s 494 RPC.
12. Section 190 of the Code of Criminal Procedure empowers the Magistrate to take cognizance of an offence--
(a) Upon receiving a complaint of facts which constitute such offence; or
(b) Upon a police report of such facts; or
(c) Upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed.
13. If a Magistrate takes cognizance of an offence under clause (a), he shall record the statement of complainant and witnesses, if any, u/s 200 Cr.P.C; and after recording the statements, he may defer CRMC No.201/2017 Page 8 of 11 issuing notice to person against whom complaint is made and may proceed under section 202 Cr.P.C; if he finds that no case for issuance of notice is made out after recording statements or after receiving the report of investigation or inquiry under Section 202 Cr.P.C., he may dismiss the complaint under section 203 Cr.P.C.; if magistrate finds that there is sufficient grounds for proceeding, he shall issue summon against alleged accused u/s 204 Cr.P.C.
14. While taking cognizance, it is not only contents of complaint are to be seen, but statements recorded in support of complaint are also to be seen. Magistrate while taking cognizance and issuing process a detail appreciation of statements and contents of complaint are not to be conducted. Magistrate has to only form an opinion as to whether essentials ingredients of offence/s are made out or not. If magistrate finds sufficient grounds to proceed, he has to issue process against accused. While going through the contents of complaint and statements of the witnesses; I find that there is a categoric mention of the fact that on 21.06.2015, the second marriage between petitioner and husband of complainant took place in accordance with Sikh rites and custom.
15. The law with regard to quashing of complaint /criminal proceedings is now well settled. These can be quashed at initial stage only in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This CRMC No.201/2017 Page 9 of 11 court while exercising the power under section 561-A Cr.P.C. does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C.
16. In present case, petitioner is yet to be charge-sheeted. All the pleas taken in the petition and those argued may be relevant for discharge of accused, but not for quashing the Complaint at initial stage, because all the pleas are pertaining to appreciation of facts. It is not case of petitioner that 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 proceeding. I have carefully gone through the laws cited. These are not applicable in present set of circumstances. Firstly facts are to be seen then law is to be applied. In Lingari Obulamma's case (supra ) and Udha Singh's case (supra), the law has been made after appreciation of evidence in full trial and conviction was made under section 494 IPC, whereas in Binoy Kumar Gupta and Ashok Kumar Chopra's cases (supra) facts are quite distinguishable as in those cases there was no averments in complaint for performance of essential ceremonies in second marriage.
CRMC No.201/2017 Page 10 of 1117. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. However, petitioner is at liberty to take all pleas of facts or law before court below at the time of framing of charge.
(Sanjay Kumar Gupta) Judge Jammu:
01.02.2019 Vijay CRMC No.201/2017 Page 11 of 11