Punjab-Haryana High Court
Tejpal Bajaj And Anr. vs Nferu And Anr. on 9 June, 1994
Equivalent citations: II(1994)DMC520
JUDGMENT N.K. Kapoor, J.
1. Petitioner have sought quashing of complaint titled 'Neeru v. Bhushan Bajaj and Ors.,' under Sections 406/498A/120B of the Indian Penal Code as well as summoning order dated 18.3.1994 on the ground that the allegations as contained in the complaint do not constitute any offence as there is no specific allegation of entrustment of particular items to a particular individual. In addition thereto, the complainant has made a false and concocted story in para No. 8 of the complaint alleging demand of dowry and giving her poisonous substance. Since there is no evidence for reporting of such incident in any Police Station, this allegation is a sheer concoction. Lastly, it has been stated that the offence alleged to have been committed do not fall within the territorial jurisdiction of the Court at Amritsar as the offence/offences are alleged to have been committed at Delhi.
2. Respondent Neeru has put in appearance and filed written reply by way of affidavit controverting various averments made in the petition.
3. Learned Counsel for the petitioners read in extenso the complaint Annexure P-1 and tried to highlight that since there is specific averment in the complaint that accused No. 4 to 8 had come to Delhi to the house of accused No. 1 to 3 and there raised a demand of Rs. 50,000 and given beating as well as given some poisonous substance in a cup of tea. The sole occurrence and the role attributed to the petitioners (though denied) was at Delhi and as such the order passed by the Magistrate summoning the petitioners under Section 406 read with Sections 498A and 120B of the Indian Penal Code cannot be said to be within the territorial jurisdiction of the Court and thus liable to be quashed. The Counsel for the petitioners placed reliance upon the judgments in cases reported as Kulwant Singh and Ors. v. Smt. Kanta Rani, 1994(1) RCR 105; Pritbir Singh and Ors. v. Balwinder Kaur and Ors., 1993(3) RCR 509; and Anokh Singh and Ors. v. Paramjit Kaur, 1990(1) RCR 497. In addition thereto, it has been urged that Section 398A of the Indian Penal Code stands repealed vide the Repealing and Amending Act, 1988 (Act No. 19 of 1988) and thus no offence can be said to have been committed by the accused under repealed Section 498A of the Indian Penal Code.
4. Counsel for the respondent in support of the summoning order urged that as per complaint as well as evidence adduced by the complainant clearly brings out the complicity of the petitioners along with other accused persons in this heinous crime for which they have already been summoned by the Judicial Magistrate. The complaint if read as a whole gives an impression that various incidents referred to in the complaint constitute one transaction. Viewed thus, the order passed by the Magistrate summoning all the accused cannot be said to be without jurisdiction. Support has been sought from the decision of this Court in case reported as Smt. Basant Kaur and Ors. v. State of Haryana and Anr., 1991(1) RCR 204.
5. Section 482 of the Code of Criminal Procedure gives powers to this Court to give an effect to any order under this Code or to prevent abuse of the process of the Court or otherwise to secure ends of justice. Powers though unlimited are to be used sparingly. It is intended to be invoked in case which in fact, do not disclose any offence or otherwise the complaint per se is found to be frivolous vexatious or oppresive i.e. to say in case the allegations as set out in the complaint do not constitute an offence of which cognizance is taken by the Magistrate, it is open to the High Court to quash the same in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure. To find out the same, the complaint as a whole is to be read. In addition thereto statement of the complaintant on at alleging the commission of offence by the accused persons is to be kept in view. It is thereafter on perusal of the complaint as well as statement of the complainant if one is of the view that the same does not disclose any of offence the complaint as such is to be held to be frivolous or fictitious, thus justifying interference by the High Court. In the present case, it is not the case of the petitioners that the complaint per se does not disclose commission of offence. Petitioners limited prayer is that since there is no specific allegation with regard to entrustment of particular items to a particular individual as well as the fact that as per averment made with regard to demand of dowry or of giving some poisonous substance in a cup of tea to the complainant is stated to be at Delhi, hence the Court at Amritsar had no jurisdiction to summon the petitioners. On examination of the complaint as well as perusal of the order of summoning passed by the Judicial Magistrate referred in detail the statement of the complainant and the various articles entrusted as well as the act of giving some poisonous substance and demand of dowry etc. appears to form part of the same transaction though at different places. In fact the petitioners are also accused of offences under Sections 498A and 120B of the Indian Penal Code.
6. Various judgments referred to by the Counsel for the parties are on its facts and thus have no bearing upon the point in controversy. The present petition is nothing but an attempt to delay the trial. As is often pointed, "delay is a known defence tactic". Since the burden of proving guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non availability of witnesses, disappearance of evidence by lapse of time clearly works against the interest of the prosecution. Sometimes however, it can be when the delay helps the prosecution. Since the petitioners and other accused have already been summoned, it would be appropriate to direct the Judicial Magistrate to expeditiously record the evidence and decide the complaint without any undue delay.
7. Since the petitioners have raised the plea with regard to maintainability of charge under Section 498A of the Indian Penal Code, it would be appropriate to deal with this objection as well. A bare reading of Section 4 of the Repealing and Amending Act, 1988, which reads as, "the repeal by this Act of any enactment shall not effect any other enactment in which the repealed enactment has been applied, incorporated or referred to, and this Act shall not effect the validity, invalidity effect or consequences of anything already done or suffered, or any right, title obligation or liability already acquired" makes the position amply clear that by the repeal by this Act, the enactment so made which has been applied, incorporated or referred to will be saved. Admittedly, the provision with regard to cruelty by husband or relatives of husband as contained in Section 498A already stands incorporated in the Indian Penal Code and thus is saved in view of Section 4 of the Repealing and Amending Act, 1988. This objection is thus devoid of any merit. Finding no substance in the petition, the same is consequently dismissed.