Jammu & Kashmir High Court
Jeewan Krishen Raina vs Chandoo Devi And Ors. on 13 May, 2013
Author: Bansi Lal Bhat
Bench: Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561_A No.13/2009, Cr.MA No.12/2009
Date of Decision:13/05/2013
Jeewan Krishan Raina VS Chandoo Devi and ors.
Coram:
Hon'ble Mr. Justice Bansi Lal Bhat, Judge
Appearing Counsel:
For Petitioner(s) : Mr. P.N.Goja, Advocate.
For Respondent(s) : None.
Whether approved for reporting in law journals? : Yes/No Whether approved for publishing in Press/Media ? : Yes/No/Optional
1. Heard learned counsel for petitioner at the admission stage and perused the record.
2. Petitioner seeks quashment of proceedings in complaint case titled "Chandoo Devi Vs. Jeewan Krishan and ors." pending determination on the files of learned 2nd Additional Munsiff/Judicial Magistrate 1st Class, Jammu on the ground that respondent no.1 (hereinafter referred to as 'complainant'), is the legally wedded second wife of petitioner while respondents 2 and 3 are his daughters. Due to marital discord inter se the couple, parties lived separately from each other. Complainant filed a claim for maintenance under Section 488 Cr.PC. The proceedings culminated in an order directing the petitioner herein to pay monthly maintenance allowance of Rs.1000/- to the complainant 2 + Rs.500/- for her separate residence. Complainant also filed a suit for permanent injunction against the petitioner seeking to restrain him from alienating immoveable property. Meanwhile, she also sought arrangement for her residence. No interim direction was passed in the suit which came to be dismissed.
3. Not being contented, complainant filed another suit under Section 18 of Hindu Adoptions and Maintenance Act, seeking separate residence. She also filed a complaint against the present petitioner and his married daughters alleging commission of offence under Sections 323, 341, 504 RPC. However, trial Court issued process only for offence under Sections 341/504 RPC and it is this complaint which is sought to be quashed.
4. Petitioner has invoked inherent powers of this Court for quashing of the criminal proceedings in the complaint case titled "Chandoo Devi Vs. Jeewan Krishan and ors." pending before the learned 2nd Additional Munsiff/Judicial Magistrate 1st Class, Jammu on the ground that such proceedings have been initiated as a matter of retaliation which amounts to abuse of process of Court. It is submitted that the petitioner and his married daughters have been falsely implicated in criminal and civil litigation. It is also submitted that, 3 from perusal of complaint, commission of alleged offence is not prima facie made out.
5. Considered the submissions made by Mr. Goja, learned counsel for petitioner.
6. Section 561-A Cr.PC, corresponding to Section 482 of Central Cr.PC, empowers High Court to interfere in proceedings relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice. Such power has to be sparingly used and that too in the rarest of rare cases where allegations in FIR or the complaint, taken at their face value, do not prima facie make out a case against the accused or where the allegations in FIR and other materials do not disclose a cognizable offence or where the uncontroverted allegations in FIR or complaint and the evidence assembled in support thereof do not disclose commission of offence. Such power can also be used where allegations in FIR or complaint are absurd or inherently improbable or where there is an express legal bar to institution and continuance of criminal proceedings or where the criminal proceedings are manifestly attended with mala fide or instituted with an ulterior motive for wrecking vengeance. These considerations have been laid down in "State of 4 Haryana Vs. Bhajan Lal" reported in AIR 1992 SC 604 and reiterated by the Hon'ble Apex Court from time to time. It is manifestly clear that the power vested in High Court under Section 561-A Cr.PC cannot be used at the whim and caprice of accused seeking quashment of criminal proceedings.
7. In the instant case admittedly the estranged wife, living separate from present petitioner, is locked in litigation with him and besides enforcing her claim for maintenance she claims separate residence despite the fact that a sum of Rs.500/- has been allowed on account of rent of the separate residence. It also appears that the complainant has approached the Civil Court seeking injunction against present petitioner to restrain him from alienating the matrimonial home located at Anand Nagar, Bohri. Her bid to obtain prohibitory orders from Civil Court ended in a fiasco as the payer was turned down by holding that there was no prima facie case in her favour. It also appears that the subject matter of complaint in instant proceedings is the alleged misconduct on part of present petitioner with reference to the incident which is alleged to have occurred on 05.11.2007 after the parties and their supporters came out of the trial Court and the complainant and her 5 supporters visited her matrimonial home at the instance of present petitioner to settle the dispute. Allegedly complainant was mercilessly beaten up and her father and sister were scolded. The present petitioner is alleged to have threatened the complainant and her supporters with elimination, if they ever dared to enter his house. The alleged occurrence is said to have happened in front of gate of the house of present petitioner. Police is alleged to have declined to register the complaint of complainant. It appears that after examination of complainant and a witness, the learned trial Court was of the opinion that prima facie commission of offence under Section 341/504 RPC was made out against the present petitioner and his daughters. Process was accordingly issued after taking cognizance of the offence.
8. On consideration of the entire conspectus of litigation inter se the estranged spouses, who have fallen apart and are locked in a fierce litigation, I am of the considered opinion that the allegations in the complaint are absurd and improbable. In the first place, it is inconceivable that the present petitioner would have invited the complainant and her supporters to his house for holding parleys for settlement of dispute, given the 6 nature of litigation and the level of embitterment inter se the estranged spouses. It is repugnant to reason that the present petitioner would have invited his estranged wife and her supporters to his house when he had not provided residence to her in matrimonial home and agreed for a separate residential arrangement. Assuming for the sake of argument that the invitation for holding negotiations emanated from the present petitioner and the complainant and her supporters did proceed to the house of present petitioner the same day in the evening, it is equally repugnant to reason that the present petitioner and his married daughters would have stopped them at the main gate and insulted them to provoke breach of peace. That being so, the allegations in complaint, taken at their face-value, smack of mala fides and concoction. No sane person on Earth can believe and attach any credit to the version emanating from the mouth of complainant, at least in regard to the manner and circumstances attending upon the alleged incident. Learned Magistrate does not appear to have taken entire gamut of litigation into account for arriving at a conclusion whether the allegations in regard to incident projected by complainant were probable and whether the same taken on their face-value did 7 constitute the alleged offences.
9. I am of the considered view that the criminal proceedings launched by complainant on the basis of allegations in the afore-titled complaint and the process issued are legally unsustainable and constitute abuse of process of Court. The criminal proceedings in the afore- titled complaint case are, accordingly, quashed by invoking inherent powers vested in this Court under provisions of Section 561-A Cr.PC.
10. The trial Court be informed accordingly and record be remitted back to the trial Court.
(Bansi Lal Bhat) Judge Jammu 13.05.2013 Varun Bedi