Punjab-Haryana High Court
Jasbir Kaur And Others vs State Of Punjab And Another on 1 September, 2011
Author: Sabina
Bench: Sabina
Crl.Misc. No.M-34124 of 2007 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. No. M-34124 of 2007 (O&M)
Date of Decision:September 01 , 2011
Jasbir Kaur and others ...........Petitioners
Versus
State of Punjab and another ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.G.S.Sandhawalia, Advocate for the petitioners
Mr.G.S.Brar,Assistant Advocate General, Punjab
Mr.H.S.Dhandi,Advocate for respondent No.2
**
Sabina, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure,1973 (for short `Cr.P.C.) seeking quashing of Complaint No. 38 dated 17.8.2006 (Annexure P6) under Sections 406/380/420/494 of the Indian Penal Code (for short `IPC') and all subsequent proceedings arising therefrom including the summoning order dated 10.1.2007 (Annexure 9) under Sections 420/380/494/120-B IPC.
Contents of the complaint (Annexure P6) read as Crl.Misc. No.M-34124 of 2007 2 under:-
"1. That Gurdeep Singh son of Kartar Singh who is permanent residing in Canada came to India and solemnized marriage with accused No.1 Sukhwinder Kaur on 09.03.2003 in Lilly Resort, Phagwara Road, Jalandhar in presence of accused persons and other relatives of Gurdeep Singh and Sukhwinder Kaur all residents of village Wadala Kalan and village Bhatija. The complainant is attorney of Gurdeep Singh son of Kartar Singh.
2. That at the time of marriage, Gureep Singh accused No. 1 to 6 were present and Gureep Singh's father and sister of father Mahinder Kaur her husband Sarwan Singh handed over 35 Tolas Gold ornaments and other jewellery and valuable article handed over to the above said persons of the value of Rs. 20 Lacs.
3. That after marriage, Gurdeep Singh went to Canada and left accused No.1 in India to live with sister of father of Gurdeep Singh i.e. Mohinder Kaur at village Wadala Kalan Tehsil and District Kapurthala.
4. That Sukhwinder Kaur accused no. 1 did not reside in village Wadala Kalan District Kapurthala but shifted to her parental village Bhatija and started residing there.
5.That all the articles of gold, jewellery and other valuable clothes were lying in the house of Mohinder Kaur wife of Swaran Singh at village Wadala Kalan and District Kapurthala.
6. That many time accused No.1 Sukhwinder Kaur and Crl.Misc. No.M-34124 of 2007 3 accused No. 2 to 6 came in Maruti Car to the house of the complainant and stolen the jewellery and golden ornaments and other valuable clothes from the house of the complainant in brief cases in the presence of the complainant and his wife.
7.That on 30.3.05 accused No.1 went to Canada and gone in the house of Gurdeep Singh son of Kartar Singh and resided there five days and fled away from the house with golden ornaments, jewellary, clothes and other valuable article along with Kuldeep Singh his brother and uncle Balbir Singh with malafide intention.
8. That Gurdeep Singh bear the expenses of accused No.1 for going to Canada and all the papers and visa were obtained by Gurdeep Singh and father of Gurdeep Singh.
9. That when the accused No.1 Sukhwinder Kaur resided in India after marriage till going to Canada the money was spent by Gurdeep Singh to the tune of thousands of Candaian Dollars.
10. That on 16.8.2006 Sukhwinder Kaur accused No.1 in conspiracy with accused No.1 to 8 arrange marriage with accused No.7 at White Spot Resort, GT Road, Kartarpur, District Jalandhar without obtaining divorce from Gurdeep Singh illegally, forcibly and taking law into their own hands or by ignoring the law with malafide intention knowingly i.e. this is the second marriage of accused No.1 .
11. That in this way accused No.1 made breach of trust with Gurdeep Singh and his relations. Accused No.1 has also Crl.Misc. No.M-34124 of 2007 4 kept concealed his intention to go to Canada knowing and leaving the house of Gurdeep Singh and arranging another marriage illegally.
12. That the accused No. 1 to 6 take valuable property from the house of the complainant without the consent of the owner of the house, made theft in the house.
13. That the accused No. 1 to 8 made cheating with Gurdeep Singh complainant and all other relations of the family of Gurdeep Singh by arranging marriage of accused No.7 with other person by taking law into their hands, having knowingly bad intention in their mind.
14. That the wife of complainant made complaint to the police but no action was taken so far.
15. That the crime committed by accused comes under Sections 406/420/380/120-B IPC.
16. That the complainant is resident of village Aujla, Tehsil and District Kapurthala. Hence, this Hon'ble Court has got the jurisdiction to entertain and try the present complaint.
17. That the complainant No. 1, 2 and 3 are the foreigners hence there is apprehension that they will go to the foreign country. So action may kindly be taken immediately and their passports may kindly be ordered to be deposited in the court.
18. That the accused made a harm of 1.60 lac Canadian from marriage till his leaving the house of her husband Gurdeep Singh in Canada.
It is,therefore, prayed that the accused may Crl.Misc. No.M-34124 of 2007 5 kindly be summoned and tried according to law and punished according to law in the interest of justice."
Learned counsel for the petitioners has submitted that Sukhwinder Kaur had got a decree of divorce against her husband- Gurdeep Singh on 7.11.2005. Thereafter, she had come to India to get remarried and the complaint in question had been filed against her and her relatives on false allegations. A reading of the complaint itself would show that no cause of action had arisen in India. Sukhwinder Kaur had gone to Canada after her marriage with Gurdeep Singh. Somehow, a matrimonial dispute arose between the couple and Sukhwinder Kaur sought a decree of divorce against Gurdeep Singh. The gold articles had, allegedly, been taken by Sukhwinder Kaur to Canada.
Learned counsel for respondent No.2, on the other hand, has submitted that Sukhwinder Kaur had committed theft of gold and other house hold articles in India and, hence, the present proceedings were liable to continue against the petitioners.
After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed.
It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to Crl.Misc. No.M-34124 of 2007 6 secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1)Where the allegations made in the first information report or the complainant, 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.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of Crl.Misc. No.M-34124 of 2007 7 which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where 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 proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
A perusal of complaint reveals that Gurdeep Singh had got married to Sukhwinder Kaur on 9.3.2003. Thereafter, Gurdeep Crl.Misc. No.M-34124 of 2007 8 Singh left for Canada. Sukhwinder Kaur did not reside in village Wadala Kalan but started residing in her parental village. All the gold jewellery and valuable clothes were lying in the house of Mohinder Kaur, wife of the complainant. Sukhwinder Kaur and the other accused came to the house of the complainant and stole gold ornaments and valuable clothes from the house of the complainant in the presence of the complainant and his wife. Sukhwinder Kaur left for Canada on 30.3.2005 and, thereafter, fled away from the house of Gurdeep Singh with gold ornaments/jewellery and clothes. Thus, it transpires that all the articles had allegedly taken away from the house of the complainant were taken by Sukhwinder Kaur with her to Canada. Thereafter, Sukhwinder Kaur left the house of her husband along with alleged articles. Apparently, the cause of action, if any, had arisen in Canada. Moreover, in the complaint, the list of the ornaments and other valuable articles have not been disclosed. Gold articles etc. had been handed over to the accused at the time of the marriage of Gurdeep Singh with Sukhwinder Kaur. It is not understandable as to how the said articles have come in possession of the complainant. Admittedly, an ex-parte decree of divorce has been passed in favour of Sukhwinder Kaur against Gurdeep Singh. The said decree has not been challenged by Gurdeep Singh.
Keeping in view the totality of the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law.
Accordingly, this petition is allowed. Criminal Complaint Crl.Misc. No.M-34124 of 2007 9 No. 38 dated 17.8.2006 (Annexure P6) under Sections 406/380/420/494IPC and all subsequent proceedings arising therefrom including the summoning order dated 10.1.2007 (Annexure P9) are quashed.
( Sabina ) Judge September 01, 2011 arya