Punjab-Haryana High Court
Nirmal Bhasin And Ors. vs Alka Bhasin on 6 September, 1989
Equivalent citations: I(1990)DMC413
JUDGMENT S.D. Bajaj, J.
1. Respondent Alka Bhasin filed against five persons arrayed as accused therein, a criminal complaint under Sections 406 and 498A of the Indian Penal Code for breach of trust in respect of stridhan dowry articles, for cruel and inhuman treatment meted out to her in her matrimonial home after marriage. Accused No. 1 is the husband of the complainant/accused Nos. 2 and 3 are her parents-in-law, accused No. 4 is the married sister of accused No. 1 and daughter of accused Nos. 2 and 3, while accused No. 5 is the go in between intermediary; who brought the two families together and settled the marriage. It is stated in the complaint that stridhan dowry articles duly entered in the list Annexure 'A', were made over to all the five persons at the time of marriage in Chandigarh and they refused to return the same at Ludhiana in response to the demand made from them at Ludhiana in the last week of August, 1987.
2. Out of five accused aforesaid three accused in parents-in-law and sister's in-law of the complainant and the remaining two in husband and the go in between intermediary have filed separately two quashing petitions bearing numbers 3016-M and 3882-M both of 1988 respectively for quashing of the criminal complaint Annexure P-1 and the summoning order Annexure P-2 on the grounds that the Criminal Court at Ludhiana has no jurisdiction, that the complaint Annexure P-1 is, in fact, a counter blast to the divorce petition filed by accused No. 1 against the respondent at Dehra Dun and that the respondent has executed in favour of the petitioners arrayed as accused in complaint filed by her a receipt for return of stridhan dowry articles which is duly attested by an Advocate.
3. The law regarding the quashing is well settled by now. Complaint Annexure P-1 must disclose prima facie that a cognizable offence has been committed by the accused. A bare reading of the complaint aforesaid is sufficient to warrant the conclusion aforesaid. The plea of receipt obtained; while returning stridhan articles to the respondent, of the complaint being a counter blast to divorce proceedings and want of jurisdiction in Ludhiana Courts may be urged by the petitioners before the learned trial Court in defence arranged by them before it, but, cannot be the basis for quashing of the complaint. In from of the observations made in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of West Bengal v. S.N. Basak, AIR 1963 SC 447, Hazari Lal Gupta v. Rameshwar Prasad and Anr., AIR 1972 SC 484, Kurukshetra University and Anr. v. State of Haryana and Anr., AIR 1977 SC 2229, State of Bihar and Anr. v. JAC Saldanna and Ors., AIR 1980 SC 326, Pratibha Rani v. Suraj Kumar and Anr., AIR 1985 SC 628, Eastern Spinning Mills Shri Virendra Kumar Sarda and Anr. v. Rajiv Poddar and Ors., AIR 1985 SC 1668 and J.P. Sharma v. Vinod Kumar Jain and Ors., AIR 1986 SC 833, the statutory right of police to investigate into the circumstances of the alleged cognizable offence and file a challan and thereafter prosecute the petitioners cannot be interfered with by the exercise of the extraordinary powers envisaged in Section 482 of the Code of Criminal Procedure.. Demand for return of dowry articles having been made and declined at Ludhiana towards the end of August 1987, Criminal Courts at Ludhiana have per se jurisdiction to summon the accused and proceed with the complaint.
4. Referring to the observations made in Gurmej Kaur v. Balbir Kaur, 1988 (2) RCR 399, it was urged on behalf of the petitioners that no offence was made out against the mother-in-law. The authority cited has no application on the peculiar facts and circumstances of the present case. In the case cited the mother-in-law did not go with the marriage party and, therefore, the articles of dowry were not entrusted to her. In the present case she did come to Chandigarh along with the marriage party and herself received the dowry articles together with the remaining four accused.
5. It has again been urged with reference to the observations made in Subash Kumar Sethi v. State of U.T. Chandigarh, 1988 (2) Recent Criminal Reports, 444 that at least the go in between the intermediary may be saved because through his alleged siding with the bridegroom side during negotiation and persuasion of the bride to get back her in-laws house, he cannot be said to have committed any offence. The authority cited as also arguments based upon it are on different facts. Therein there was no allegation of the mediator having received the dowry articles with other accused while in the present case he is alleged to have received them.
6. Further it was urged that the dowry articles were received at Chandigarh and allegedly misappropriated at Debra Dun and as such the Criminal Courts at Ludhiana had no jurisdiction. For want of territorial jurisdiction in the Court summoning them it was asserted on the basis of the observations in Ram Swaroop Rustogi and Ors. v. State and Anr. 1979 CLR (Delhi) 78 that the proceedings pending against the accused--petitioner at Ludhiana merit to be quashed. The allegations made in para No. 11 of the complaint Annexure P-l provide a complete answer to this argument and wholly negative it. The relevant paragraph of complaint reads, "That the articles were demanded at Ludhiana and were refused at Ludhiana and the offence of criminal misappropriation was completed at Ludhiana when the articles were demanded and refused to handover by the accused to the complainant within the territorial jurisdiction of P.S. Divn. No. 3, Ludhiana, as such, Ilaqa Judicial Magistrate P.S. Divn. No. 3 has got the jurisdiction to entertain and try the present complaint". The demand for and refusal to return Stridhan dowry articles having both been made at Ludhiana, the Criminal Court at Ludhiana has prima facie the jurisdiction to entertain and adjudicate upon the complaint Annexure P-l. The arguments raised being wholly without merit is overruled.
7. Amar Singh v. Mukhtiar Singh Grewal and Ors., 1981 CLR 383 and J.P. Sharma v. Vinod Kumar Jain and Ors., 1987 (1) CLR 1 are again both authorities for the view. "The question at this stage, is, not whether there was any truth in the allegations made but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise the allegations is not a ground on the basis of which the complaint can be quashed." "It is by now well settled as to what approach has to be adopted by the trial Magistrate In judging as to whether sufficient grounds exist for summoning an accused or not. In Chandra Deo Singh v. Prakash Chandra Base alias Chabi Base and Anr., AIR 1963 SC 1430; it has been held that there where there was prima facie evidence, even though an accused might have a defence that the offence was committed by some other person or persons, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of process could not be refused. It was also further enunciated in that judgment that what the Magistrate had to be satisfied with was whether there was sufficient ground for proceedings. Whether the evidence was adequate for supporting the conviction, could be determined only at the trial and not at the stage of enquiry. These very views have been reiterated by their Lordships is subsequent judgments while dealing with the test that has to be applied by the trial court at the stage of framing of charge-a stage which can be considered almost a second step in the trial-a step further in the trial than the first step in a complaint case where the court has to see as to whether there is sufficient evidence to summon the accused or not. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 Untwalia, J., speaking for the court, put the test in the following words :
"If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 228 (Crimimal Procedure Code), then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. ......."
8. In Union of India v. Prafulla Kumar Samal etc., 1979 Current Law Journal 35, Fazal Ali, J. of the Supreme Court observing that the judge exercising power under Section 227 is not a mere post office to frame the charge at the behest of the prosecution, nevertheless went on to restate the view that whereas strong suspicion might not take the place of the proof at the trial stage, yet it might be sufficient for the satisfaction of the trial Judge in order to frame a charge against the accused.
9. In this view of the matter, there is obviously no merit in the quashing petitions aforesaid, which are both dismissed.