Punjab-Haryana High Court
Kamaljit Kaur vs Manjit Kaur on 6 March, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Criminal Misc. No.M-31888 of 2008
Kamaljit Kaur ....Petitioner
Versus
Manjit Kaur ...Respondent
2. Criminal Misc. No.M-27529 of 2010
Surinder Kaur ....Petitioner
Versus
Manjit Kaur ...Respondent
Date of Decision:- 6.3.2012
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Surinder Mohan Sharma, Advocate for the petitioners.
Mr.Hari Om Sharma, Advocate for the respondent.
Mehinder Singh Sullar, J. (Oral)
As identical points of law and facts are involved, therefore, I propose to dispose of both the indicated petitions for quashing the impugned complaint (Annexure P1) & summoning order (Annexure P2), by virtue of this common judgment, in order to avoid the repetition.
2. The contour of the facts and material, culminating in the commencement, relevant for disposal of the instant petitions and oozing out, from the record, is that the marriage of Palwinder Kaur, daughter of complainant Manjit Kaur, respondent (for brevity "the complainant") was solemnized with accused Kashmir Singh son of Gurbachan Singh, 8/9 years prior to the present occurrence. After the solemnization of the marriage, they cohabited, resided as husband & wife Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -2- and two sons were born out of their wedlock. Accused Kashmir Singh, his mother Surinder Kaur and sister Kamaljit Kaur, were stated to have treated Palwinder Kaur with cruelty in connection with and on account of demand of dowry. Ultimately, she was turned out of the matrimonial home alongwith her two sons after giving beatings to her. Thereafter, they started residing with the complainant in village Havelian, Police Station Sadhaura, District Yamunanagar.
3. The complainant claimed that on 3.11.2007, she accompanied by her daughter Palwinder Kaur and her two sons visited her matrimonial home in village Tamnauli, Police Station Maulana, District Ambala, to advise accused Kashmir Singh not to harass or maltreat her, but in vain. All the accused persons became annoyed and abused them. Petitioner-accused Surinder Kaur caught hold of the complainant by neck, whereas petitioner-accused Kamaljit Kaur gave kicks and slaps on her (complainant) different parts of the body. When Palwinder Kaur tried to rescue her, then accused Satinder Kaur gave fist blows in the eyes of the complainant. Accused Kashmir Singh gave a knife blow on the right hand wrist and gave beatings to the complainant as well as Palwinder Kaur. They raised hue & cry, which attracted many persons and the accused slipped away from the spot. While leaving his house, accused Kashmir Singh threatened that in case, the complainant or her daughter or any person from their family, ever visit in village Tamnauli, none would be spared and will be done to death. They reported the matter to the police and were medico legally examined. Instead of registering a criminal case against the accused, the police was stated to have challaned only accused Kashmir Singh for security proceedings under Sections 107/151 Cr.PC.
4. Levelling a variety of allegations and narrating the sequence of events, in all, according to the complainant that on 3.11.2007, petitioner-accused Surinder Kaur caught hold of the complainant by neck, whereas petitioner-accused Kamaljit Kaur gave kicks and slaps on her (complainant) different parts of the Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -3- body. When Palwinder Kaur tried to rescue her, then accused Satinder Kaur gave fist blows in her eyes. Accused Kashmir Singh gave a knife blow on the right hand wrist and gave beatings to the complainant as well as Palwinder Kaur. In the background of these allegations, the complainant filed the complaint (Annexure P1), in which, the accused were summoned to face the trial for the commission of offences punishable under Sections 323, 324 and 506 read with Section 34 IPC by the trial Magistrate, by way of impugned summoning order dated 11.7.2008 (Annexure P2). The petitioners-accused have directed the present petitions for quashing the impugned complaint and summoning order.
5. The case set up by the petitioners, in brief in so far as relevant, was that the complainant (CW1) did not fully support the allegations contained in the complaint (Annexure P1) against them and the Magistrate, without proper application of mind, passed the impugned summoning order (Annexure P2). The filing of the complaint was stated to be a counter blast to the matrimonial dispute between Palwinder Kaur and Kashmir Singh. The accused were stated to have illegally dragged and involved them in the criminal complaint. On the strength of the aforesaid grounds, the petitioners sought to quash the impugned complaint and summoning order in the manner depicted hereinbefore.
6. The complainant-respondent refuted the prayer of the petitioners and filed the reply, inter-alia pleading certain preliminary objections of, maintainability of the petitions, cause of action and locus standi of the petitioners. The complainant claimed that since the specific allegations/overt act are attributed to the petitioners, fully supported by the oral as well as medical evidence, so, no ground for quashing the impugned complaint and summoning order at this preliminary stage is made out. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the respondent has reiterated the allegations contained in the impugned complaint (Annexure P1).
Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -4- However, it will not be out of place to mention here that she has stoutly denied all other allegations contained in the main petitions and prayed for their dismissal.
7. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petitions in this context.
8. What cannot possibly be disputed here is that the Hon'ble Apex Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R. (Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:-
(i) 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.
(ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
(iii)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the F.I.R. 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 a Magistrate as contemplated under S.155(2) of the Code.
(v) 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 proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -5-
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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(viii)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding 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."
9. Not only that, again the Hon'ble Supreme Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
10. Above being the legal position, now the short and significant question, though important that, arises for consideration in the present case is, as to whether the impugned complaint (Annexure P1) filed by the complainant- respondent against the petitioners-accused and the summoning order (Annexure P2), deserve to be quashed at this stage or not?
11. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative in this respect.
12. As is evident from the record, that inter-alia, there are specific and Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -6- direct allegations in the complaint that all the accused duly participated in the commission of the crime and caused injuries to the complainant and her daughter Palwinder Kaur. It was specifically alleged that petitioner-accused Surinder Kaur caught hold of the complainant by neck, whereas petitioner-accused Kamaljit Kaur gave kicks and slaps on her (complainant) different parts of the body. When Palwinder Kaur tried to rescue her, then accused Satinder Kaur gave fist blows in her eyes. Accused Kashmir Singh gave a knife blow on the right hand wrist and gave beatings to the complainant as well as Palwinder Kaur.
13. Having completed all the codal formalities, taking cognizance of the complaint and considering the preliminary oral as well as documentary evidence, including rapat roznamcha dated 3.11.2007 (mark-A) and MLR (mark-B), the trial Magistrate summoned the accused to face the trial, on accusation of having committed the offences punishable under Sections 323, 324 and 506 read with Section 34 IPC, through the medium of impugned summoning order (Annexure P2).
14. Instead of submitting to the jurisdiction of the trial Court, the petitioners-accused straightway jumped to file the instant petitions for quashing the impugned complaint (Annexure P1) and summoning order (Annexure P2), invoking the provisions of Section 482 Cr.PC.
15. It is now well settled proposition of law that at this stage, the Magistrate has only to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 Cr.PC, there is prima facie evidence in support of the allegations leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At the stage of summoning, the Magistrate is not to weigh the evidence so meticulously as he is required to do during the course of trial of main case. The standard to be adopted by the Magistrate in scrutinizing the Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -7- evidence is not the same as the one which is to be kept in view at the stage of framing charges. This matter is no more res integra and is well settled.
16. An identical question came to be decided by the Hon'ble Apex Court in case Shivjee Singh v. Nagendra Tiwary & Ors. 2010(7) SCC 578, wherein the view taken in case Mohinder Singh v. Gulwant Singh 1992(2) RCR(Criminal) 134 was reiterated and observed (paras 11 & 12) as under:-
"11. The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry." (emphasis supplied)
12. The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -8- end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused."
17. Ex facie, the argument of learned counsel that the petitioners-accused have been falsely implicated by the complainant, is not only devoid of merit but misplaced as well at this stage. The mere fact that Palwinder Kaur has filed a petition for divorce (Annexure P3) against her husband Kashmir Singh under Section 13-B of the Hindu Marriage Act, 1955, which is still pending, ipso facto, is not a cogent ground to quash the impugned complaint (Annexure P1) and summoning order (Annexure P2), unless & until, the matter, in regard to the present complaint, is compromised between the parties. As to whether the petitioners were falsely implicated, owing to matrimonial dispute, they were not present at the spot, whether the oral as well as documentary evidence produced by the complainant, is not worthy of credence and whether there are contradictions in the ocular and medical evidence or what is its effect etc. (as now sought to be urged on behalf of the petitioners-accused), would be the moot points to be decided during the course of trial by the trial Court. If all such points, which require determination by the trial Court, are to be decided by this Court in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible.
18. Therefore, to my mind, the indicated Bench mark and all essential ingredients for quashing the impugned complaint and summoning order contained in Ch.Bhajan Lal, Som Mittal and Jeffery J.Diermeier's cases (supra) are totally lacking and no ground, muchless cogent, to quash the impugned complaint (Annexure P1), summoning order (Annexure P2) and all other subsequent proceedings arising therefrom, is made out at this preliminary stage, in the obtaining circumstances of the case.
Criminal Misc.Nos.M-31888 of 2008 & 27529 of 2010 -9-
19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
20. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main complaint case, as there is no merit, therefore, the present petitions are hereby dismissed as such.
21. Needless to mention that nothing recorded, here-in-above, would reflect, in any manner, on merits during the trial of the main complaint case, as the same has been so observed for a limited purpose of deciding the instant petitions in this relevant direction.
6.3.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No