Punjab-Haryana High Court
Giani Harjit Singh vs Paramjit Kaur on 9 December, 1994
Equivalent citations: II(1995)DMC125
JUDGMENT N.K. Kapoor, J.
1. Petitioners seek quashing of complaint Annexure P-1 filed by Smt. Param Jit Kaur under Section 406 of the Indian Penal Code (for short 'the Code') on the ground that the complaint is a counter-blast to a petition filed by Hardeep Singh under Section 13 of the Hindu Marriage Act (for short the Act') and is otherwise a tissue of lies and the assertions made therein are palpably false. The allegations in the complaint are hopelessly vague. There is no specific allegation as to what article was entrusted to which of the accused. There is also no allegation that either of the two lady petitioners joined the Barat.
2. Pursuance to notice issued by the Court, reply by way of affidavit has been filed by Smt. Paramjit Kaur denying the material averments made in the petition. It was denied that the complaint has been filed as a counter-blast to the petition filed under Section 13 of the Act. Various averments made in the complaint were reiterated that behaviour of her husband as well as the petitioners in this petition who were joint in residence and mess was very cruel towards the respondent as they were not satisfied with the quantity and quality of the dowry. She was turned out of the house and all the five accused gave her beatings. Her jewellery and ornaments were kept by the accused. It is on the intervention of the respectable that the respondent joined her husband in June, 1983 but since there was not change in the attitude of the accused, she was turned out again in December, 1985. On account of this grief, her father died in September, 1986. Once again, the respondent joined her husband in October, 1986, yet the attitude of the accused remained the same and on September 25, 1988, she was ultimately turned out. Her demand for return of 'Istridhan' was turned down. It was reiterated that all the accused were joint in residence and mess. It has further been stated that all the accused had misused the 'Istridhan' and the articles specifically given to them have been retained despite the demand. It was thus prayed that the petition be dismissed with costs.
3. The first submission of the learned Counsel for the petitioners is that the _present complaint as a tissue of lies and has been filed as a counter-blast to Hardeep Singh's petition for dissolution of marriage by a decree of divorce Under Section 13 of the Act which was filed on 11.10.1988 whereas the present complaint is dated 9.2.1989. Since the matter in controversy is subject-matter of adjudication before the Civil Court, the present proceedings are liable to be stayed. Support was sought from Section 41 of the Indian Evidence Act and the decision in case reported as Chander Kumar Sharma v. Smt. Shamiriti Sharma, 1989(1) CLR 486. Elaborating the Counsel urged that, as per Section 41 of the Indian Evidence Act, any final judgment, order or decree passed by a Competent Court in exercise of its matrimonial jurisdiction is conclusive and so a decision on a petition Under Section of the Act would bind the party. Various aspects of the matter leading to the breakdown of marriage and claim with regard to dowry articles would be examined by the Court. Keeping this in view, Division Bench of this Court in Chander Kumar Sharma's case (supra) held as under:--
"In this view of the matter, final judgment of a Competent Civil Court in exercise of matrimonial jurisdiction would be binding even in respect of matters other than dealing with legal character, and marital status between the parties, regarding which specific issues have been framed, and, the parties have been given opportunity to lead evidence, and, specific findings are recorded by the Civil Court. In that eventuality, Criminal Courts cannot be permitted to reopen such findings, which would be binding between the parties before the Criminal Court. Query with regard to question No. 1 is answered accordingly."
4. The next submission of the learned Counsel for the petitioners is that there is no allegation in the complaint that specific articles were entrusted to the present petitioners, the complaint is highly vague and so deserves to be quashed on this ground alone. Even otherwise, it is unthinkable that brother or brother's wife is entrusted with dowry articles. Support was sought from the decision of this Court in case reported as Smt. Chand Rani and Ors. v. Smt. Sunita Rani, 1989(1) RCR 1, Surinder Kaur v. State of Haryana, 1991(3) Recent Criminal Reports 112=II (1991) DMC 473, Smt. Adarsh and Ors. v. State of Punjab and Anr., 1992(1) RCR 667 and Sudhir Kumar and Ors. v. The State of Punjab and Ors., 1992(3) RCR 588.
5. Sri Sarwan Singh, learned Counsel for the respondent No. 1, urged that the present petition Under Section 482 of the Code of Criminal Procedure is totally misconceived. The Apex Court in catena of judgments has held that powers under Section 482 of the Code of Criminal Procedure have to be exercised in rarest of rare cases i.e. in case the Court comes to a positive conclusion that the present proceedings amount to an abuse of process of Court. In the present ease, the broad facts that the respondent married Hardeep Skingh on 6.9.1980 according to Sikh religious rites by means of Anand Karaj is not in dispute. It is also not in dispute that both of them lived happily for approximately two years. It is thereafter that the trouble started with regard to which versions as given by the husband in the divorce petition or by the wife in the present complaint differ. As per complaint filed by the respondent, she has given in detail various dowry articles i.e. gold ornaments, diamond jewellery, silver articles, furniture, sewing machine, steel almirah, cooler, washing machine, TV set, fridge and other articles of daily use. A detailed list of articles with approximate valuation was also enclosed with the complaint. In the complaint, it has been stated that all the accused are joint in residence and mess. How and in what manner they had been pestering the respondent to bring more money to satisfy their greed finds duly recorded. The complainant has appeared as her own witness and for corroboration examined AW-2 Suresh Kumar, Harjinder Pal Singh AW-3, Ms. Bharti Kar AW-4 and Harvinder Singh AW-5. It is on perusal of the statement of the complainant and other witnesses that the Court prima facie came to the conclusion that offence under Section 406 of the Indian Penal Code has been made out against all the accused and so they were ordered to be summoned by the Court. Present is not a case that even on the accepted facts as given in the FIR or complaint, no case is made out against the accused. A bare perusal of the complaint leaves no manner of doubt that case under Section 406 of the Code is clearly made out against all the accused persons. There is also no merit in the contention of the learned Counsel for the petitioner that the relatives--the present petitioners--in fact, have no role to play in the breaking up of this marriage or that they could not be entrusted with the dowry articles. Since the petitioners and Hardeep Singh, as per complainant, are joint in residence and mess, the inference drawn by the Court in this regard is just and appropriate in the circumstances of the case.
6. As regards the objection that it has not been mentioned in the complaint which article had been entrusted to which of the petitioners is a matter which is yet to be examined by the Magistrate on the basis of evidence. Various decisions cited by the learned Counsel for the petitioners have no applicability on the facts of the case. On peculiar facts of these cases, the Court granted a limited relief to one or more of the petitioners but such a decision in no way becomes a binding precedent. In fact, none of the judgments advert to the ambit and scope of Sections 405 and 406 of the Code.
7. I have heard learned Counsel for the parties and perused the various documents referred to by them as well as the judgments cited in support of their respective contentions. Before proceeding any further, it would be appropriate to keep in mind the broad averments made by the complainant in her complaint under Section 406 of the Indian Penal Code. It has been stated in the complaint that she "was married to accused No. 1 on 6.9.1980 at Jalandhar, according to Sikh religionos rites, by means of Anand Karaj. Accused No. 2 is the father-in-law of the complainant, accused No. 3 is the elder brother of accused No. 1, accused No. 4 is the mother-in-law of complainant, while accused No. 5 is the wife of accused No. 3. At the time of marriage, the parents of the complainant gave sufficient dowry in the form of gold ornaments (303 grams) presently valued at Rs. 87,800/-, diamond jewellery, one set valued at Rs. 8,000/-, silver lemon set valued at Rs. 7000/-, besides costly furniture, sewing machine, pedestal fan, stereo, steel almirah, cooler, washing machine, TV set, fridge and other articles of daily use, were given in dowry. A detailed list of the articles given in dowry with approximate value is enclosed. All the accused before the marriage had contracted the parents of the complainant and had given special list of demand of various items of dowry. They had also pleaded that as the bridegroom was highly educated, parents of the complainant should agree to give car in dowry. However, the parents of the complainant told the accused that they were not in a position to give car at this time. This demand would be met later on if the circumstances and financial position so permitted. It has been further stated in the complaint "that soon after the marriage the behaviour of all the five accused, who were joint in residence and mess, became cruel towards the complainant as the accused were not satisfied with the quantity and quality of dowry. They were insisting that accused No. 1 was an officer in a bank, dowry given was not in accordance with the status of the boy and started maltreating the complainant All the five accused started saying that the complainant can be rehabilitated only if a car is provided by the parents of the complainant or at least Rs. 50,000/- are given to the accused No. 1. A sum of Rs. 5,000/- on 3.8.1982 and another sum of Rs. 10,000/- on 31.10.1982 was given by the parents of the complainant to accused No. 1 at Jalandhar. It has been further stated in the complaint that on account of this maltreatment and cruelty, her father died on 20.9.1986 and it is once again on the intervention of respectables that she joined accused No. 1 at Ludhiana in October, 1986. It is during this period that accused Nos. 1 and 2 made fresh demand of Rs. 50,000/- but the same could not be met as the complainant's brother could not arrange such a huge amount. Since she could not meet this demand, they again started maltreating her and even compelled her to sign divorce papers which she declined. It is on 25.9.1988 that complainant along with her brother Balwant Singh, Jang Bahadur Singh, Paramjit Lal, Nagin Chander Sharma, Suresh Kumar and other respectables approached accused No. 1 that she be rehabilitated to which they did not agree and said that they would accept a barren girl. On their request that 'Istridhan' of the complainant be returned, all the accused stated that they had already disposed of the 'Istridhan' and they could compensate the complainat if she agreed for divorce. The Magistrate on the basis of statement of complainant and witnesses examined by her has, prima facie, came to a conclusion that a case under Section 406 of the Indian Penal Code is made out against all the accused persons. The complaint contains the necessary ingredients of a case of criminal breach of trust. It has not been suggested by the Counsel for the petitioners that the complaint as such is not covered under Section 406 of the Indian Penal Code. His primary contention is that it is a counter-blast to divorce petition since the divorce petition was filed sometime earlier to the present complaint. No doubt, divorce petition was filed on 11.10.1988 i.e. earlier to the present complaint but there is no proof on record to suggest that the complainant had knowledge of the pending divorce petition. To a specific question as to when the complainant was served in divorce petition, Counsel for the petitioners was unable to specifically state an exact date. However, Shri Sarwan Singh, Counsel for respondent No. 1, later on stated that the complainant was served on 11.5.1989. In view of this factual position, it cannot be said that the present complaint is merely a counterblast to the divorce petition.
8. I also do not find much merit in the plea of the petitioners that since the Civil Court is also seized of the matter, the present complaint is liable to be stayed. Support sought to be derived from the Division Bench judgment in Chander Kumar Sharma's case (supra) is wholly misplaced. Admittedly, there is yet no decision by a Civil Court in the matrimonial dispute. Even otherwise, the precise point which is subject matter of the complaint as to whether there has been entrustment of Istridhan and other articles to the accused is not the subject matter of adjudication before the Civil Court. The Court is to examine whether decree of divorce is to be passed in terms of Section 13 of the Hindu Marriage Act. As regards the return of dowry articles, the same cannot be the matter of adjudication in such like proceedings.
9. In Smt. Chand Rani's case (supra), there was only assertion in the complaint, "that accused persons turned her out and kept her articles in their custody". On this, the Court observed that there was no specific allegation about the entrustment of any specific article to any of the petitioners. This decision is clearly distinguishable. In the present case, it is the case of the complainant that all the accused persons before marriage had contacted the parents of the complainant and had given special list of demands of various items of dowry. The list of articles given in dowry form part of the complaint. It has further been stated by the complainant that all the accused persons are joint in residence and mess. On these facts, the Court, prima facie, came to a conclusion that a case under Section 406 of the Indian Penal Code is made out against all the accused.
10. The decision in Surinder Kaur's case (supra) is also not applicable on the facts of the present case. It was held that it is common knowledge that dowry articles are entrusted to the bridegroom or his parents and that sisters had hardly any role to play. Accordingly, the complaint against the sisters was quashed. In Smt. Adarsh's case (supra), vague allegations made in the FIR with regard to entrustment of various articles of dowry were not accepted by the Court. This decision appears to be on peculiar facts of the case. In fact, the matter has not been investigated and thus the Court was of the opinion that there was less likelihood of conviction of the petitioner on the basis of allegation made in the FIR. May be, these allegations are made with an oblique motive of pressurising the husband and his parents. In the present case, besides the complainant, as many as four witnesses were examined by the complainant in support of her assertion in the complaint. It is on perusal of these statements that the Magistrate found it a sufficient ground to proceed against the accused persons under Section 406 of the Indian Penal Code. Thus, the Court in the present case has applied his mind.
11. In Sudhir Kumar's case (supra), the Court relying upon the ratio of decision of the Supreme Court in State of West Bengal and Ors. v. Swapan Kumar Guha, AIR 1982 SC 949, held that the FIR does not disclose any offence. On facts, it was found that both the spouses were living separately from other members of her husband's family. It is in this view of the matter that FIR Under Sections 406/498A of the Indian Penal Code was quashed. In the present case, it is the case of the complainant that all the accused are joint in residence and mess and various articles were entrusted to each one of them as per list of articles attached with the complaint. Thus, this judgment also does not advance the case of the petitioners in any manner.
12. The primary function of the Court is to examine whether complaint, prima facie, discloses an offence of criminal breach of trust as defined under Sections, 405/406 of the Indian Penal Code. The salient paragraphs of the complaint have been reproduced whereas the contents of the other paragraphs have been given in a summarised manner. A bare perusal of these bring out that clear and specific allegations are made in the complaint that such and such articles were entrusted to the accused persons. Prima facie, the version as given in the complaint makes out a case under Section 406 of the Indian Penal Code. It is a different matter that the statement of the complainant and other witnesses when tested in the light of their cross-examination inspires confidence or otherwise. The approach of the Court cannot be conjectural. Once a case is, prima facie made out, it is not the function of this Court to substitute its own opinion while invoking its powers under Section 482 of the Code of Criminal Procedure. The High Court is expected to refrain from expressing any such opinion lest one or the other party should prejudice. Powers under Section 482 of the Code of Criminal Procedure are meant to be exercised sparingly and with circumspection when there is reason to believe that process of law is being misused to harass the citizens. The Apex Court in case reported as Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., AIR 1976 SC 1947 observed as under:
"....Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(i) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(ii) where me allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(iii) where the discretion exercised by the Magistrate in issuing process if capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(iv) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent Authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
13. The same principles would apply mutatis mutandis to a criminal complaint.
14. Keeping in view the aforesaid observations of the Apex Court, while exercising powers under Section 482 of the Code of Criminal Procedure the Court is to examine the FIR or complaint entirely on the basis of allegations or documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. The Apex Court in case reported as State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604, after exhaustively examining the earlier decisions held that power under Section 482 of the Code of Criminal Procedure can be exercised only when allegations made in the FIR or the complaint even if taken at its face value and accepted in its entirety does not prima facie constitute any offence or that the FIR does not disclose any cognizable offence or that proceeding is manifestly attended with mala fide or proceedings have been instituted with an ulterior motive for wreaking vengeance. No such infirmity is present in the present complaint. Specific allegations with regard to entrustment of articles were made in the complaint. The Court also formed a prima facie opinion and ordered for summoning of the petitioners under Section 406 of the Indian Penal Code. Thus, I find no merit in this petition and accordingly dismiss the same.
15. The present complaint was filed in February 1989. The petitioners were summoned by the Court on 23.5.1989. On account of interim stay, the proceedings remained stayed. Thus, keeping in view the facts of the present case, Judicial Magistrate is directed to expeditiously proceed with the complaint and preferably decide the same within a year.