Punjab-Haryana High Court
Mrs.Kamal Nain vs State Of Punjab And Others on 20 July, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Misc. No.11439-M of 2005(O.&M.)
Date of Decision: 20.7.2009
Mrs.Kamal Nain.
....... Petitioner through Shri
Arvind Moudgil,Advocate.
Versus
State of Punjab and others.
....... Respondent nos. 1 to 5
through Shri B.B.S.Teji,
Assistant Advocate
General,Punjab.
Respondent nos.6 to 9
through Shri R.K.Girdhar,
Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
The petitioner has filed the present petition under the provisions of Section 482 of the Cr.P.C. praying for direction to respondent nos. 2 to 5 to register an F.I.R. for the offences punishable under Sections 343, 323, 506, 120-B read with Section 34 of the I.P.C. against respondent nos. 6 to 9 and the erring police officials of District Ferozepur for keeping her in illegal custody with effect from 15/16.2.2004 to 18.2.2004. It has also been prayed that an F.I.R. under Sections 406, 498-A, 506,120-B read with Section 34 of the I.P.C. be ordered to be registered against respondent nos. 6 to 8 on the basis of the complaint dated 27.12.2004 made to respondent Crl.Misc.Petition No.11439-M of 2005 -2- ....
no.2. Still further, the petitioner has prayed that a direction be issued to respondent nos. 2 to 5 to provide police protection to her and her parents so that they can visit and live in their house no.3402, Sector 71, S.A.S. Nagar, Mohali and also meet her children.
It has been alleged in the petition by the petitioner that she is a resident of Mohali, but is currently staying at Dehradun with her parents and that she was subjected to intense harassment at the hands of respondent nos. 6 to 9. She has further alleged that she was married to Sumit Kumar Kamboj
- respondent no.6 on 29.11.1993 and that they set up their matrimonial home at Village Chakbudoke, Jalalabad West, District Ferozepur; that respondent nos. 6 to 8 started taunting her for not getting adequate dowry even in front of their relatives, who used to come to meet her and in social gatherings of the family; that on 1.12.2003 at the time of reception, respondent nos. 6 to 8 raised a lot of hue and cry for not being given a car, Rs.5 lacs in cash and other jewellery items as demanded by them; that she was thrown out of the matrimonial home and had to return to her parents' home at Dehradun; that she was forced to stay at her parental home for almost one month and was allowed to come back only after her parents gave expensive gifts to respondent nos. 6 to 8 and assured them that their demand of car and Rs.5 lacs along with other jewellery items would be met soon; that she came to know that respondent no.6 was a habitual drunkard and a womanizer and used to come late at night and when she objected to the same, she was mercilessly beaten by him and respondent no.7; that she brought this fact to the notice of her mother-in-law, who advised her not to Crl.Misc.Petition No.11439-M of 2005 -3- ....
take these things seriously as it was part and parcel of big landlords' lives; that two sons were born out of this wedlock on 1.12.1994 and 12.10.1998; that respondent no.7-Sudhir Kamboj, her devar, secretly married to her younger sister and this fact was not disclosed to her parents and they would have not agreed to it; that the factum of this marriage was revealed only when her sister became pregnant and her parents were forced to marry her with her devar in order to save the honour of the family; that she started her boutique in the name of Adorinca in Mohali and also started exporting the finished goods; that her business started flourishing and she had finances at her disposal which started troubling respondent nos. 6 to 8; that respondent no.6 started the business of termite treatment by the name of Termite Terminator in partnership with two persons, but that business badly flopped and respondent nos. 6 to 8 started forcing her to get Rs.5 lacs from her parents, failing which she would be made to suffer; that respondent no.6 thereafter started another business of car finance by the name of Easy Finance in partnership with one Anil Khetarpal and the said business also failed because of their dubious financial dealings; that in order to save her marriage, her parents were forced to purchase an esteem car which was snatched away by her dever and was taken to Jalalabad and was not returned till the year 2004; that in November,2002, respondent nos. 6 to 8 had asked her to part with all her gold as her sister-in-law was to get married and threatened her with dire consequences if she did not do so; that due to constant threats of respondent nos. 6 to 8, she was paralyzed and was admitted to Indus Hospital on 21.11.2003 for five days; that she shifted to Crl.Misc.Petition No.11439-M of 2005 -4- ....
house no.3402, Sector 71, Mohali on 1.11.2002; that she was constantly harassed by respondent no.7 as respondent no.6 was very irregular in visiting her and committed rape upon her in the second week of July,2003 and threatened her with dire consequences if this fact was told to respondent nos. 6 or 8 or approached the police or any other person; that respondent no.7 also threatened to leave his wife, who is her younger sister in case she reported the matter to any body; that she conceived and had to undergo abortion in November,2003; that respondent no.7 continued to harass her and portrayed her as characterless to respondent nos. 6 & 8,who did not sympathize with her and rather joined him in harassing her; that she was forcibly sent back to her house in Jalalabad on 4.2.2004 and was harassed, humiliated and threatened by respondent nos. 6 to 8; that she immediately wrote a letter to respondent nos. 3 and 4 for police protection and for registration of a case against respondent nos. 6 and 8, but no action was taken; that somehow, she managed to escape from her home at Jalalabad on 7.2.2004 and filed Crl.Misc. Petition No.6390-M of 2004 in this Court for issuance of a direction to the S.S.P., Ropar and S.H.O., Police Station, Sector 71, Mohali for registration of an F.I.R. against respondent nos. 6 to 8 and to provide her security; that due to constant threat of respondent nos. 6 & 7, she was forced to stay in H.No.HL-322, Phase-II,S.A.S. Nagar, Mohali; that in the intervening night of 15/16.2.2004, respondent nos. 6, 7 & 9 in connivance with the local police of Ferozepur assaulted her and forcibly took away her to an undisclosed location in District Ferozepur where she was constantly physically and mentally harassed; that she was Crl.Misc.Petition No.11439-M of 2005 -5- ....
kept captive for three days and her recovery was shown on 18.2.2004; that respondent no.8 was a party to all this; that respondent nos. 6 to 9 wanted her to depose against Surinder Kamboj and Anita Kamboj blaming them for her abduction; that she refused to do so; that under constant threat, she was left with no other option but to give a statement against aforesaid Surinder Kamboj and Anita Kamboj on the basis of which F.I.R.No.32 dated 15.2.2004 was registered at Police Station, City Jalalabad; that this all was done in connivance with the local police of Ferozepur; that the landlord of House No. HL-322, Phase-II, Mohali, Smt. Devi, lodged a D.D.R.No.48 dated 17.2.2004 wherein it was that respondent nos. 6 & 7 had come along with several other persons on the intervening night of 15/16.2.2004 and forcibly took her away; that Crl.Misc.Petition No.6390-M of 2004 was disposed of vide order dated 9.3.2004 on the assurance given by respondent nos. 4 & 5 therein for settling the matter amicably; that the statements of various witnesses recorded during the trial pertaining to F.I.R.No. 32 dated 15.2.2004 show that she was not abducted by Surinder Kamboj and Anita Kamboj; that she was thrown out of her matrimonial home in plain clothes on 10.3.2004 by respondent nos. 6 to 8 and was not allowed to meet her children; that on 11.8.2004, respondent nos. 6 to 8 came to Dehradun and threatened her to give evidence against Surinder Kamboj and Anita Kamboj but she refused and upon this, she was physically assaulted by respondent nos. 6 & 7; that she has already filed a divorce petition in Dehradun; and that respondent no.6 has also filed a divorce petition in Ferozepur just to harass her, but the same was later on withdrawn.
Crl.Misc.Petition No.11439-M of 2005 -6- ....
Apart from the aforementioned allegations, which the petitioner has made by way of averments in the instant petition, her main grievance seems to be confined to the averment which have been made in paragraphs 18 and 19 which are extracted below:-
"18. That on the intervening night of 15/16.02.2004 the respondent No. 6, 7 & 9 in connivance with the local police of Ferozepur forcibly took away the petitioner after assaulting her to a undisclosed location in District Ferozepur where they constantly physically and mentally harassed and assaulted the petitioner and threatened her with death in case she did not follow their instructions and act accordingly. It is pertinent to mention here that the respondent No. 6 and 7 have deep link with the local police of Ferozepur because of which they were successful in conniving with the local police and picked up the petitioner in the wee hours of 15/16.02.2004 without there being any lady police official which is against the law. The local police of Ferozepur connived with respondent No. 6,7 and 9 and allowed respondent No. 6,7 and 9 to physically and mentally harass and assault the petitioner for three days,i.e., w.e.f. 1.6.02.2004 to 18.02.2004 and the recovery of the petitioner has been shown on 18.02.2004 and she was produced before the Illaqa Magistrate on 19.02.2004 which is illegal. This proves the clout of the respondent No.6 and 7 over the local police of Ferozepur.
Crl.Misc.Petition No.11439-M of 2005 -7- ....
19. That the respondent No. 6, 7 & 9 physically assaulted the petitioner at undisclosed location in a village in District Ferozepur and kept her in illegal confinement for three days in connivance with the local police of Ferozepur. That respondents no. 6, 7 & 9 and their accomplices in connivance with the local police officials physically tortured and beat the petitioner mercilessly by tying both her hands and legs and making her sit on the floor in winter without any warm bedding. The respondent no.8 was a party to all this as the petitioner pleaded to her to set her free from them but she flatly refused. They wanted the petitioner to depose against one Mr.Surinder Kamboj and Anita Kamboj blaming them for her abduction. When the petitioner refused they assaulted her and even tore her clothes and the petitioner was put to lot of shame and humiliation. The petitioner was barely given to eat and not allowed to go to toilet when required. That respondent no. 6, 7 & 9 and their accomplices physically assaulted the petitioner at undisclosed location in a village in District Ferozepur and kept her in illegal confinement for three days in connivance with the local police of Ferozepur. The petitioner was not allowed to either meet anybody nor was she allowed to make a call to her parents or any other person. The petitioner was threatened, that in case she did not give a statement against Mr.Surinder Singh Kamboj and Mrs. Anita Devi wife of Mr.Surinder Kamobj Crl.Misc.Petition No.11439-M of 2005 -8- ....
blaming them for her kidnapping, she will be killed and her children would be physically harmed. The petitioner was left with no other choice but to give a statement against Mr.Surinder Kumar Kamboj blaming them for kidnapping her in case got registered by respondent no.7 bearing FIR No.32 dated 15.2.2004 lodged in Police Station, City Jalalabad West, District Ferozepur. This all was done with the connivance of local police of Ferozepur as the petitioner's recovery has been shown on 18.2.2004 instead of 15/16.2.2004. Thus, respondents no. 6, 7 & 9 and their accomplices and the erring police officials of Ferozepur have collectively violated Article 21 of the Constitution of India for which an F.I.R. be registered against them."
The petitioner filed Crl. Misc. Petition No.6390-M of 2004 which was disposed of on 9.3.2004 in the following terms:-
"Contends that after the issuance of the notices to the respondents, some assurance has been given by respondents No. 4 and 5 for settling the matter amicably.
Learned counsel for the petitioner on the latest instructions from her client wants to withdraw the present petition at this stage. At the same time makes a request that in case there is no outcome on the basis of the assurance given to the petitioner by respondent No. 4 and 5, she shall be at liberty to knock the doors of this Court once again for the same relief.
Crl.Misc.Petition No.11439-M of 2005 -9- ....
Disposed of accordingly."
The petitioner's further plea is that while deciding the case pertaining to F.I.R.No.32 dated 15.2.2004, referred to above, the Additional Sessions Judge, Ferozepur, had acquitted the accused therein and made adverse observations against respondent nos. 6 & 7. The relevant portion of the judgment dated 4.10.2004 of the Additional Sessions Judge, to which reference has been made by the petitioner is extracted below:-
"......... while stepping into the witness box she categorically deposed that actually she was taken into custody by the police and she was kept confined for about two days days from 1.6.2.2004 to 18.2.2004 by the henchmen of her husband and brother-in-law with whom she was having matrimonial dispute and during that period she was pressurized to make statements Ex.P-16 and Ex.P-17 to falsely implicate the accused in the present case. It has been proved from the medical evidence in the form of statement of PW1-Dr.Akash Kumar that on 18.2.2004, PW5-Kamalnain Kaur was produced before him by SHO Rajesh Hasthir and at that time, her blood pressure was 90/60. She was under depression. Her pulse rate was 102 per minute. She was responding on ly when questioned twice or thrice. This part of the medical evidence of PW5-Kamalnain Kaur immediately before the making of statement Ex.P-16 and Ex.P-17 dt. 19.2.2004 to the police and the Ld. Magistrate respectively has corroborated her version in this Court where Crl.Misc.Petition No.11439-M of 2005 -10- ....
she deposed that during those two days of her illegal confinement from 16.2.2004 to 18.2.2004 she was illegally confined and tortured by ¾ henchmen of her husband and her brother-in-law also remained present there. She further deposed that she was tortured to such an extent that she was in full senses when brought before the police and the Ld. Magistrate. The condition of PW5-Kamalnain Kaur regarding her mental state of affairs before making the aforesaid statements clearly goes to show that her those statements were not in normal circumstances but there was every probability of her having been tortured immediately before making the aforesaid statements.
.............. It is the plea of the accused that due to political rivalry as well as due to business tussle with Sudhir Kumar (complainant) they are falsely implicated. This version of the accused is most probable because it has come into the cross- examination of complainant Sudhir Kumar that they had a joint business of rice mll in the year 1999. He further deposed that accused Surinder Kamboj pulled him out of the business of aforesaid rice mill in the year 2001-02. Thus, the business dispute between the accused and the complainant was already there. It has also been proved from the statement of PW5- Kamalnain Kaur that she was also having matrimonial dispute with her husband and brother-in-law Sudhir Kumar Crl.Misc.Petition No.11439-M of 2005 -11- ....
(complainant). It seems that in order to settle score with PW- Kamalnain Kaur as well as with the accused the complainant wanted to kill two birds with one shot by getting the present case registered on false allegations against the accused. During the trial of the present case, PW5-Kamalnain Kaur apprehended threat to her life at the hands of the complainant and her husband. Under those circumstances, police security was ordered to bring her in the court for her deposition at the level of the Hon'ble Punjab and Haryana High Court. She was produced in court under police protection which fact in itself is sufficient to hold that she was under constant threats from the complainant and her husband and in these circumstances her statement made to the police and before the Ld. Magistrate during the course of investigation cannot be given any credence for holding the accused guilty............."
Upon notice, the respondents have put in appearance. A reply in the shape of an affidavit of Balwinder Singh, Deputy Superintendent of Police, Jalalabad (West) has been filed on behalf of respondent nos. 1, 2 and 4. The factum of the petitioner being illegally detained was denied. It was rather stated that on 15.2.2004, Sudhir Kumar son of Balkar Chand moved an application regarding kidnapping of the petitioner by Surinder Kamboj and Smt.Anita Kamboj upon which F.I.R.No.32 dated 15.2.2004 under Sections 363, 366 of the I.P.C. Was registered and on 16.2.2004, House No.1259, Phase-9 of Surinder Kamboj Crl.Misc.Petition No.11439-M of 2005 -12- ....
was raided and he & his wife were arrested. During investigation, it was disclosed by them that the petitioner was detained in House No. 322, Phase- 2, Mohali which house was again raided by associating Surinder Kamboj and Anita Kamboj. The house was locked from outside and they keys were with Surinder Kamboj and after opening the lock, the petitioner was recovered and she was got medically examined at Civil Hospital, Jalalabad and thereafter, she was handed over to her husband-Sumit Kamboj after her statement was recorded under Section 164 of the Cr.P.C. It was denied that the petitioner was kept in illegal custody. It was further submitted that the petitioner was having strained relations with her husband and the present proceedings are merely to harass the respondents and that she had turned hostile in the Court of Additional Sessions Judge, Ferozepur in the case pertaining to the aforesaid F.I.R.
During the pendency of the instant petition, the State of Punjab allegedly constituted a Special Investigation Team to enquire into the allegations made by the petitioner. As per the petitioner, Even though she was granted permission to meet the Deputy Superintendent of Police concerned through her counsel regarding her grievance, yet, the police did not investigate the matter properly. During this interregnum, Inspector General of Police (Zonal), Bathinda was requested by the Senior Superintendent of Police, Ferozepur to hand over the enquiry to some other officer out of the district. Thereafter, the enquiry was conducted by the Superintendent of Police (Detective), Faridkot and he presented his report on 18.10.2006. Another enquiry was also conducted by Smt.V.Neerja, Crl.Misc.Petition No.11439-M of 2005 -13- ....
Assistant Inspector General of Police (Crime), Punjab, Police Headquarters, Chandigarh and her report is dated 19.3.2008. In both the enquiries, the allegations were found to be baseless. The petitioner, however, still persists with her allegations.
Learned counsel for the petitioner pleaded with vehemence that a direction in terms of the prayer made in the petition may be issued.
On the other hand, learned counsel for State as well as respondent nos. 6 to 9 contended that in view of the enquiries which have already been conducted by the senior police officers, no cause of action survives to the petitioner and the instant petition ought to be dismissed.
After hearing the learned counsel for the parties and perusing the entire material which has been placed on record, I am of the considered opinion that no further action is required to be taken in the present petition.
The petitioner has consistently raised the allegations against the respondents, although there are enquiries in which the allegations have been found to be baseless. Be that as it may, learned counsel for the petitioner has very stoutly pointed out to the observations of the learned Additional Sessions Judge in his judgment dated 4.10.2004 which have been reproduced above, to contend that there is sufficient material to proceed against respondent nos. 6 to 9 and the erring police officials. The Court is not entirely convinced about the authenticity of the allegations in view of the repeated enquiries which have been held and in the absence of any material from which it can be inferred that the petitioner was actually detained. However, there are some findings which have been recorded by Crl.Misc.Petition No.11439-M of 2005 -14- ....
the Court of Additional Sessions Judge, Ferozepur which give a possible trace,but not a conclusive proof of the allegations that have been made by the petitioner. In this view of the matter, while exercising power under Section 482 of the Cr.P.C., a direction cannot be issued for registration of an F.I.R. as prayed for by the petitioner, but she may, if so advised, prefer a complaint against the respondents for redressal of her grievance.
Learned counsel for the petitioner has stated that respondent nos. 6 and 7 are influential persons in the area and, therefore, it will be extremely difficult for her to come from Dehradun to Jalalabad to confront respondent nos. 6 to 9 and the police officials, especially in the backdrop of this hard-fought litigation wherein serious allegations have been made against them as the local police was supposedly acting at the behest of respondent nos. 6 & 7.
I have considered this aspect of the matter and am of the opinion that the apprehension as expressed by the learned counsel for the petitioner is not entirely misplaced.
Having regard to this fact, it is deemed appropriate to dispose of this petition with an observation that in case, the petitioner decides to avail herself of the remedy of a complaint against respondent nos.6 to 9 and the police officials for redressal of her grievance, she may do so in the Courts at Chandigarh and the question of jurisdiction will not stand in her way and in disposal of such a complaint.
July 20,2009 ( Mahesh Grover ) "SCM" Judge