Punjab-Haryana High Court
Sunita Alias Pinky And Anr. vs Smt. Sunita on 5 February, 1997
Equivalent citations: 1997CRILJ2594
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. Ms. Sunita alias Pinky daughter of Shri Gian Chand, and her father Gian Chand son of Sohan Lal have filed the present petition under Section 482 Cr. P.C. against Smt. Sunita daughter of Jagan Nath, and have prayed for the quashment of the complaint Annexure P. 1 and the summoning order Annexure P. 2. At the outset I would like to incorporate the facts. Smt. Sunita respondent earlier filed a complaint under Section 498-A read with Section 406 IPC against her husband promod Kumar, her father-in-law Gian Chand and her sister-in-law Sunita alias Pinky by alleging that she was married with accused No. 1 Promod Kumar on 8-7-1989 at Chandigarh according to Hindu rites and out of this wed-lock a male child was born on 4-8-1990. At the time of marriage, cash amounting to Rs. 23,000/- for the purchase of T. V. Fridge and Furniture etc. and gold ornaments and other valuable clothes were given to the complainant in gift by her parents and other relatives as per Annexure 'A' of the complaint and those articles along with articles mentioned in Annexure 'B' constituted her Ishtridhan. Soon after the marriage the accused meted the complainant with cruelty and subjected her with intimidation, insult, humiliation and mental torture as in their eyes the articles brought by her in dowry from her parents were less and of inferior quality. The respondent pressurised the complainant to bring a scooter and fine clothes for all members of the family on different occasion. She had been bringing this to the notice of her parents, on 8-1-1991, her father Jagan Nath visited her house at about 10 A.M. and he found the complainant locked on the upper storey of the house. In Para No. 8 of the complaint, the complainant had alleged that the amount of Rs. 23000/- was entrusted to accused No. 1 for the purchase of TV, Fridge and furniture and on the demand of the accused she further entrusted gold ornaments such as one Chain set, four Bangles, two necklace sets and two Kade (Bangles) weighing about 21 Tolas to respondent Nos. 2 and 3. It is further alleged by the complainant that Smt. Sunita that accused Nos. 1 to 3 had a criminal conspiracy and got shifted accused No. 1 along with the complainant at Mohali on 4-4-1991. Still accused No. 1 used to beat her on the alleged abetment of accused Nos. 2 and 3 as the complainant failed to meet the demand of the accused. Accused No. 1 turned out the complainant from the house on 26-12-1992 at 7 P.M. by keeping with him the male child who was aged about 2 years at that time. The father of the complainant sent her back to her husband's house on 28-12-1992 without caring for her fate and the interest of the child. However, accused No. 1 Promod Kumar abused and maltreated her. It is further alleged by the complainant that her brother T. L. Goel and one Om Parkash her brother-in-law came to her house on 29-12-1992 and talked with accused No. 1 not to mis-behave with the complainant but to no effect. Ultimately, the matter was reported to the police. So much so, even the father of the complainant lodged a complaint with the Chief Minister, Punjab on 6-1-1993 and narrated the entire story. The complainant also appeared in the office of Superintendent of Police Mohali on 13-1-1993. Accused No. 1 was summoned in the office but he did not appear. Finally, he appeared on 8-2-1993 along with Shri Om Parkash Sharma, President of M.C. Kharar and others and the matter was got compromised. As a result of that compromise accused No. 1 rehabilitated the complainant in his house on 9-2-1993 but he did not withdraw his case under Section 9 of the Hindu Marriage Act from the Court of Shri H.S. Madan, Sub Judge 1st Class, Kharar in violation of the compromise in order to harass and torture the complainant. The complainant further alleges that she was subjected to mental torture, legal and financial harassment by accused No. 1 who dragged her in the litigation under Section 9 of the Hindu Marriage Act. Finally the petition under Section 9 of the Hindu Marriage Act was dismissed on 5-1-1995 by the Court when respondent No. 1 could ,not lead the evidence. The complainant further alleges that accused No. 1 Promod Kumar tried to kill her on the night intervening 26-27-1-94 by strangulating her while she was asleep. She saved herself with great difficulty. On the morning of 27-1 -1994 she went to the house of her father and told the entire matter to her father. The matter was reported to the police. However, accused No. 1 ran away from his house. He again visited the house on 6-4-1994 and turned out the complainant from the house along with the male child in three wearing apparels. The complainant again approached to the President, Punjab Ishtri Sabha, Chandigarh. The members of the said Sabha visited the house of respondent No. 1. Respondent No. 1 (accused) was summoned but he did not listen to the advice of Cell. Again a complaint was sent by the father of the complainant on 6-3-1994 to the Superintendent of Police, Mohali. In para No. 17 of the complaint, the specific allegations made by the complainant is that when she was turned out from the house by accused No. 1 on 6-4-1994, the complainant left all her dowry aritcles as mentioned in Annexures 'A' and 'B' at the house of her husband "It should be presumed that these articles were handed over to her husband accused No. 1 on behalf of the complainant". The complainant demanded back her entrusted cash of Rs. 23000/-, gold ornaments, valuable clothes and other articles being Ishtridhan from the accused many times but he refused to do so; hence they had allegedly committed an offence under Section 498-A read with Section 406 IPC.
2. Vide order dated 12-1-1996, the learned Sub Divisional Judicial Magistrate, Kharar after recording the statement of Sunita, Tarsem Lal her brother, Jagan Nath, her father, and one Ram Lubhai summoned both the petitioners and Promod Kumar by passing the following orders :
After hearing the learned counsel for the complainant and after perusing the preliminary evidence produced by the complainant on record, at this stage, prima facie a case for offence under Section 498-A and 406 of the Indian Penal Code is likely to be made out against the accused. As such, all the accused be summoned for offence under Sections 498-A and 406 IPC for 23-2-1996, on filing of PF/copies of complaint and list of witnesses within three days.
3. Aggrieved by the complaint as well as by the summoning order, the petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure that the complaint filed by Smt. Sunita respondent is nothing but an abuse of the process of law. The impugned summoning order is unsustainable. The learned Magistrate did not discuss any evidence before summoning the present petitioners. Moreover, a perusal of the complaint would show that all the allegations of the cruelty and mis-appropriation have been levelled against the husband Promod Kumar. In para No. 7 of the petition it has been stated by the petitioners that the case of the complainant-respondent is that she shifted to Mohali along with her husband on 4-4-1991 and never joined the company of the present petitioners after that day. Thus any allegation against the petitioners in respect of the alleged cruelty pertaining to the period prior to 4-4-1991 does not make out any offence against the petitioners and no cognizance can be taken regarding the offence under Section 498-A IPC as the complaint was filed after a period of 4 years and the alleged cruelty as is evident from the date of the filing of the complaint which is dated 14-3-1995. The limitation for Filing the case under Section 498-A IPC is three years as provided under Section 498 Cr. P.C. because the maxim'um sentence under Section 498-IPC is three years. On this short ground the complaint is liable to be quashed. Further the case of the petitioner is that as per para No. 17 of the complaint, the complainant herself has admitted that it should be presumed that all the dowry articles were handed over to respondent No. 1 i.e. husband on behalf of the complainant and if there is any criminal breach of trust that could only be attributed to the husband and not to the present petitioners. It is further alleged by the petitioners in the petition that the allegations of cruelty and alleged entrustment vis-a-vis the petitioners are vague, false to the knowledge of the complainant and thus tentamounts to the abuse of the process of law, therefore, the complaint and the summoning order viz-a-vis the petitioners are liable to be set aside.
4. Notice of the petition was given to Smt. Sunita who filed written statement reiterating her allegations of the complaint. She further alleged that all the three accused are liable for the offence under Sections 406 and 498-A IPC and that her complaint is not an abuse of the process of law. She also defended the order of the learned Magistrate when he summoned both the petitioners in the proceedings of the complaint under Sections 406 and 498-A IPC.
5. I have heard Shri A, S. Kalra, Advocate on behalf of the petitioners and Shri G. S. Savra, Advocate, who gave appearance on behalf of the respondent and with their assistance I have gone through the record of this case.
6. Shri G. S. Savra, learned counsel for the respondent at the very outset has stated that this petition should be dismissed because the trial of the complaint has reached to an advanced stage. After the summoning of the petitioners as an accused, statement of the complainant has been recorded. Now only the statement of the father of the complainant is to be recorded. The complaint is likely to be decided very shortly and in these circumstances this Court should be slow in interfering while exercising the powers under Section 482. Cr: P.C. In support of his first contention Shri Savra, has drawn my attention to a citation reported as 1996(1) RCR 182 Jai Chand v. Asha Bala, in which it was held that no criminal action initiated against an accused can possibly be scuttled at the very threshold on the sole ground that there was bleak chances of the success of the prosecution. This Court is not in a position to agree with the submission raised by the learned counsel for the respondent. While disposing of this petition, this Court has to see whether the initiation of the complaint on the part of the respondent vis-a-vis the petitioner was an abuse of the process of law and whether the order of the learned Magistrate summoning the petitioners as an accused could be justified from any cannon of recognised principles of law. This Court is cognizant of the fact that once the accused have been summoned by a Magistrate after recording the petitioner's evidence, there is an alternative remedy left with the accused to convince the Court under Section 245(2) Cr. P.C. for their discharge because the summoning order is not a final judgment but an interim order. Equally is the law laid clown|n the celeberated judgment of the Hon'ble Supreme Court reported as AIR 1992 Supreme Court 604 : 1992 Cri LJ 527 State of Haryana v. Ch. Bhajan Lal, that 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, the provisions of Section 482 Cr. P.C. can be invoked. It was also held by the Hon'ble Supreme Court in this very judgment that where the uncontroverted allegations made in the First Information Report or complaint and the evrdence collected in support of the same do not disclose the commission of any offence and make out a ease against the accused or 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 proceedings against the accused or where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act or where a criminal proceeding is manifestly attended with mala fide or where the proceeding is meliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the Hight Court is competent to invoke the provisions of Section 482 Cr. P.C. though sparingly and in rare of the rarest cases. In the light of the dictum laid down by the Hon'ble Supreme Court in Ch. Bhajan Lai's case (supra) this Court is not in agreement with the submission of Shri Savra, that after summoning order, in no case, the provisions of Section 482 can be invoked. The case law relied upon by Shri Savra reported as Jai Chand v. Ashu Bala (supra); Vir M. Khosla v. State of Punjab, 1992 (2) Recent Criminal Reports 673; Sultan Singh v. State of Haryana, 1996 (2) Recent Criminal Reports 290; and Bal Chand v. State of Haryana, 1995(3) Recent Criminal Reports 148, are not applicable to the facts in hand. All these authorities stand on their own footing. A perusal of these authorities would show that in every case there were specific allegations against the petitioners. Those allegations were not vague. Prima facie those allegations on their face value constitute an offence and for that reason enquiry was necessary in each case and the Hon'ble Judges were pleased to hold that when the allegations prima facie disclose and offence, those allegations must be scrutinised by a competent Court of jurisdiction and if on those allegations the Magistrate consider proper to summon an accused, such complaint and the summoning order should not be interfered by the High Court under Section 482 of the Code of Criminal Procedure. This Court has already stated above that once the allegations are under judicial scrutiny, High Court should be slow in interfering under Section 482 Cr. P.C. However, if the complaint does not disclose if the allegations of the complaint and disclose the commission of any offence or the acts of alleged cruelty would not be enquired into in view of the statutory bar as envisaged under Section 468 Cr. P.C., such a complainant should not be allowed to suck the blood of innocent persons under the threat of a complaint and the summoning order and the High Court in such circumstances should be the first person to protect the rights of such person so that they may not suffer botheration of the trial and they must be relieved of the mental agony. The case in hand will be looked into from the above settled principles of law.
7. First of all, I would like to deal with the charge of cruelty. The complaint was instituted by Smt. Sunita on 14-3-1995. It is her own case in para No. .9 of the complaint that she along with her husband became, separate from the present petitioners and they started residing at Mohali on 4-4-1991. Thereafter, both the petitioners had no occasion to live jointly with the complainant and her husband. It is not the case of the complainant that after 4-4-1991 any physical or mental cruelty was caused to her by the present petitioners. If any alleged act of cruelty had been committed by the present: petitioners prior to 4-4-1991, those allegations could not be enquired into in the present complaint being barred by time as per provisions of Section 468 Cr. P.C. which runs as follows : --
468. Bar to taking cognizance after lapse of the period of limitation : --
(1) Except as otherwise provided elsewhere in the Code, no Court shall take cognizance of an offence of the cateogry specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be -
(a) six months, if the offence is punishable with fine only.
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year.
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
8. The complaint of the complainant with regard to the alleged allegations of cruelty vis-avis the petitioners was time barred and observations of the Hon'ble Supreme Court as incorporated in Ch. Bhajan Lai's case are fully applicable to the facts in hand.
9. With regard to the alleged criminal breach of trust, the main plank of the complainant Smt. Sunila is upon para No. 8 of the complaint where she stated that a sum of Rs. 23000/- was given to the accused No. 1 for the purchase of TV, Fridge and furniture at the time of the marriage besides gold ornaments weighing 23 Tolas which was given to accused Nos. 2 and 3 i.e. the present petitioners. On the strength of these allegations Shri Savra had tried to convince me that in fact all the three persons committed criminal breach of trust. They hatched a conspiracy in order to devour the valuable articles of the complainant. With the idea the husband and wife were separated on 4-4-91 the liability of the present two persons is not exonerated, Ishtridhan of the complainant was entrusted to them also. As these two persons failed to return Ishtridhan, prima facie the offence under Section 406 IPC is attracted vis-avis them and therefore, the summoning order dated 12-1-1996 passed by the learned Sub Divisional Judicial Magistrate is correct.
10. These allegations have been scrutinised by me in depth, even in the light of the preliminary statement made by Smt. Sunita Devi before the trial Court. During the course of arguments a copy of the statement of the complainant was brought to my notice. This Court is not in a position to agree with the submission raised by Shri Savra. The complaint has to be read as a whole. No doubt in para No. 8 of the complaint some allegations have been made by the complainant that gold ornaments were entrusted to the present petitioners, but one cannot lose sight of the fact that she is narrating these allegations which allegedly took place immediately after the marriage.
Thereafter, the complainant herself has alleged that on 4-4-1991 she became separate from her father-in-law and sister-in-law. It is not the case of the complainant that those gold ornaments still remained in the possession of her father-.in-law and sister-in-law. The truth has to come out and it has come out in para No. 17 of the complaint when the complainant has specifically alleged that she was turned out in three wearing clothes and all her dowry articles mentioned in Annexures 'A' and 'B' of the complaint were left in the house of her husband. She has further categorically stated in this para that it should be presumed that these articles were handed over to her husband-accused No. 1. On behalf of the complainant. If the entrustment of these articles was to the husband how it could be travelled for vicarious liability for the present two petitioners. Only that man is supposed to account for the Ishtridhan who has been entrusted with the articles. If the Ishtridhan has been retained by the husband and not being counted for to the wife prima facie liability arises of the husband. Any unnecessary effort made on the part of the litigant to drag the innocent, has to be scuttled down otherwise such action will be nothing but an abuse of the process of law. To achieve this object that there may not be any frivolous and false litigation causing harassment to the individual the provisions of Section 482 Cr. P.C. have been invoked in the Code. These provisions lays down that 'nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice'.
11. The reading of the above provisions would show that the High Court can quash the proceedings on being satisfied that the complaint does not disclose any offence or is frivolous, vaxatious or oppressive. This is the positive impression gathered by this Court on reading the complaint. The learned Magistrate while summoning the present two petitioners did not apply his judicial mind. He relied upon the unchallenged statement of the witnesses. At the time of the summoning a responsibility is definitely cast upon a Magistrate to apply his mind judiciously before summoning any person in the dock, because summoning a person in dock itself is incumbersone penalty. The man has to leave his daily pursuits in order to attend the hearings. If a citizen is prima facie not guilty of any offence, he should be relieved of the botheration of mental agony of the trial. By doing so the faith of public will further be enhanced in the judicial system. Mechanical orders of summoning the accused should be avoided; though at that time the criminal Courts are supposed to see whether prima faice there is evidence justifying any person to face trial or not.
12. Shri. A. S. Kalra, learned counsel appearing on behalf of the petitioners has rightly placed reliance on 1992(1) RCR 357; Smt. Hukmi Devi v. State of Haryana, by urging that the complaint of Smt. Sunita Devi vis-a-vis the acts of cruelty attributable to the petitioners is time barred. It has been held in this authority that if a complaint is lodged three years after the alleged illegal demand of dowry from the bride such complaint is barred by provisions of Section 468(2) Cr. P.C. Also it was observed that in order to constitute an offence under Section 406/498-A IPC the allegations of the complainant in the complaint should be specific against each and every accused. General allegations of entrustment, refusal to return dowry articles and general allegations of cruelty in terms of Section 498-A IPC cannot be encouraged and should be depreciated by the Courts.
13. In the present case also the allegations with regard to the alleged criminal breach of trust and cruelty viz-a-vis the present petitioners are vague, time-barred and there was no question of alleged mis-appropriation on their part. Attention of this Court has also been invited to 1993(2) RCR 89 Gurmeet Singh v. State of Haryana, by Shri Kalra, learned Sr. Counsel, in which it has been held that while exercising powers under Section 482 Cr. P.C. this Court can go into the allegations to prevent abuse of the process of the Court or to otherwise to secure the ends of justice.
14. I have already expressed my view that the demand on the part of the respondent-complainant vis-a-vis the petitioners is nothing but to bring them to ridicule under the garb of filing the criminal complaint against them.
15. In the light of above, this petition succeeds; the complaint dated 14-3-1995 Annexure P. 1 and the impugned order dated 12-1-1996, Annexure P. 2, vis-a-vis the petitioners are hereby quashed. Now the proceedings will only continue against the husband Promod Kumar before the Criminal Court. No order as to costs.