Judgment on 482CrPC

Criminal Misc. No.M-18404 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-18404 of 2008

Date of decision: 22.1.2009

Rakesh Kumar and others

......Petitioners

Versus

State of Punjab and another

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present: Mr.P.S.Hundal, Sr.Advocate with Mr.N.S.Sondhi, Advocate,

for the petitioners.

Mr.Aman Deep Singh Rai, AAG, Punjab.

Mr.Vishal Aggarwal, Advocate,

for respondent No.2.

****

SABINA, J.

The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure ("Cr.P.C." for short) seeking quashing of order on framing of charge dated 30.4.2007 (Annexure P-7), charge sheet dated 30.4.2007 (Annexure P-8) passed by the learned Judicial Magistrate, Ist Class, Ludhiana order of the learned Additional Sessions Judge (Fast Track Court), Ludhiana dated 4.6.2008 (Annexure P-9) dismissing the revision petition against framing of charge and all subsequent proceedings. Petitioner Nos. 1 and 4 are brothers of the husband of the complainant, whereas, respondent No.3 is the un-married sister of Criminal Misc. No.M-18404 of 2008 2 the husband of the complainant. Petitioner Nos. 2 and 5 are the wives of petitioner Nos. 1 and 4 respectively. The case of the complainant, as set out in the First Information Report, is reproduced as under:- "Application for registration of a case under Section 406, 498-A, 120-B and Protection of Woman from Domestic Violence Act, 2005 against 1. Mukesh Kumar s/o Sh.Ved Parkash Marwaha 2. Asha Rani wife of late Sh.Ved Parkash Marwaha, 3. Rajesh Kumar Marwaha son of late Sh.Ved Parkash Marwaha, 4. Simran wife of Rajesh Kumar Marwaha, 5. Rakesh Kumar son of late Sh. Ved Parkash Marwaha, 6. Meenu wife of Sh.Rakesh Kumar, 7., Poonam daughter of late Sh.Ved Parkash Marwaha all residents of 191, Kidwai Nagar, Near Shiv Shakti Mandir, Ludhiana, 8. Neena wife of Sh.Anil Kumar resident of Denmark. Sir, 1. That the marriage of the applicant was solemnized on 11.2.2004 with the accused No.1 according to Hindu rites and ceremonies. This marriage was solemnized by the mother of the applicant with the help of sister of the applicant and spent about Rs.5,00,000/- on the marriage of the applicant. The mother of the applicant gave items No. 1 to 6 to my husband namely Mukesh Kumar, items No.7 to 9 to my mother-in-law namely Asha Rani, items No. 10 to 18 to Criminal Misc. No.M-18404 of 2008 3 my brother-in-law namely Rajesh Kumar, items No.19 to 23 to Simran my sister-in-law (Jethani), items No.24 to 26 to my sister-in-law namely Meenu (Jethani) and items No.27 to 34 to Rakesh Kumar my brother-in-law (my husband's brother) and items No. 35 to 40 to my elder sister-in-law namely Poonam as per Anexure 'A' and the cash receipts and Bills of the items were handed over to the family members of the accused No.1 and these items were given to the accused in presence of Kirpal Singh son of Amar Singh cousin of the applicant and Rajinder Singh son of Sh.Balwant Singh cousin of the applicant and these items were given to the above said accused with the assurance that these items will be handed over to the applicant after reaching the applicant to her in-laws house. But all the accused dishonestly misappropriated all the items given to the applicant and converted the same for their own use.

2. That all the accused were not satisfied with the dowry articles given to accused at the time of the marriage. They started taunting, humiliating the applicant on one excuse or the other. The accused No.1 and his family members started demanding Santro Car from the mother of the applicant. The applicant showed her inability to fulfil the demand of Santro Car because her Criminal Misc. No.M-18404 of 2008 4 mother had already spent a huge amount on the marriage of the applicant. Thereafter, all the accused started harassing the complainant only to fulfil their demand of Santro Car. In the meantime the complainant became pregnant during the month of June, 2004. But the applicant did not disclose her mother and sister about the maltreatment by the accused with the hope that after the birth of child, the accused may change their attitude towards the complainant. But the complainant was suffering from Ruptured Ectopil Pregnancy and was operated on 19.7.2004. Thereafter, all the accused became so arrogant towards the complainant. They started harassing the complainant. The information regarding the operation was also sent given to accused No.8 Neena on telephone by the husband of the complainant. She also used abusive language against the complainant and told my husband to take divorce from me and instigated my husband to remarriage. The accused separated the complainant from the in-laws house with the excuse that there is no sufficient space in the in-laws house and the dowry articles give by the mother of the complainant were retained in the in-laws house and we were given some furniture, utensils etc. Criminal Misc. No.M-18404 of 2008 5 thereafter, in the month of December, 2005 the complainant again became pregnant and was again suffering from Ruptured Ectopil Pregnancy and was operated on 16.12.2005. After the operation of the complainant the behaviour of all the accused was totally changed towards the complainant. They started using derogatory language against the complainant by calling the complainant "Baanj" by the accused 1,2,3 and 4. Even the respondent No.8 also used these words against the complainant on telephone from Denmark and instigated my husband to divorce me and said that she will arrange his second marriage at Denmark. In this way all the accused mentally tortured the complainant on account of non bringing of Santro car and by calling her 'Baanj". On 18.6.2006, when the complainant was at her house the respondents No.1 to 7 namely Mukesh Kumar, Asha Rani wife of late Sh.Ved Parkash Marwaha, Rajesh Kumar Marwaha, Simran, Rakesh Kumar, Meenu, Poonam came there and accused No.1, 3 and 5 along with other accused started beating the complainant under the influence of liquor. The accused No.2 mother of my husband instigated all the accused to beat the complainant. Ultimately the complainant was turned out of the house Criminal Misc. No.M-18404 of 2008 6 in three clothes on 22.6.2006. The items given by the mother of the applicant on different occasions as mentioned in Annexure "A" and "B" have also been retained by the accused. Similarly the items given by the in-laws of the applicant as shown in the Annexure "C" have not been handed over to the applicant. It is pertinent to mention here that the accused No.1 moved an application before the S.P.City (1), Ludhiana on a flimsy ground only to save himself and his family members from the clutches of law. Thereafter, the complainant and other family members requested the accused to rehabilitate the complainant, but he refused to rehabilitate the complainant.

3. That before the Panchayat consisting of Rajinder Singh s/o Sh.Balwant Singh, Kirpal Singh son of Sh.Amar Singh, Raju c/o Sewak Tent House and other respectables of the locality the accused and his family members repeated the same demand of Santro Car and when the accused refused to rehabilitate the complainant the Panchayat members and the complainant demanded her ISTRI DHAN from all the accused, but they refused to return the same to the complainant. So all the accused have committed breach of trust by refusing to return the ISTRI DHAN. It Criminal Misc. No.M-18404 of 2008 7 is , therefore, prayed that a case under Section 406, 498-A, 120-B IPC and Protection of Women from Domestic Violence Act, 2005 may kindly be registered and items given in Annexures "A" and "B" be recovered from the accused and accused be punished accordinglyl."

Learned counsel for the petitioners has submitted that there were no specific allegations against the petitioners in the FIR. The petitioners had merely been roped in this case being relatives of the husband of the complainant.

Learned counsel for the complainant, on the other hand, has submitted that all the accused including the petitioners had been harassing the complainant and had misappropriated the dowry articles. He has further submitted that the order, vide which the charge was framed, had been challenged by the petitioners before the Additional Sessions Judge, Ludhiana by way of a revision petition and hence, second revision petition under Section 482 Cr.P.C. was not maintainable. In this regard, he has placed reliance on Darshan Singh vs. State of Punjab, 1996 (1) RCR (Criminal) 464, Rajinder Prasad vs. Bashir, 2001(4) RCR (Criminal) 312 and Deepti vs. Akhil Raj, 1995 (3) RCR (Criminal) 638. It has been held by the Apex Court in Krishanan vs. Krishnaveni, AIR 1997 SC 987, in para 9 of its judgment, as under:- "The inherent power of the High Court is not one Criminal Misc. No.M-18404 of 2008 8 conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings . As seen, under sub section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not defined the word 'person'. However, under Section 11 of the IPC, 'person' includes any Company or Association or body of persons, whether incorporated or not. The word 'person' would, therefore include not only the natural person but also juridical person in whatever from designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word 'person' for the purpose of limiting its right to avail the revisional power of the High Court under Section 397 (1) of the Code for the reason that the State, being the prosecutor of the offender is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non- Criminal Misc. No.M-18404 of 2008 9 cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito justitiae, i.e. in accordance with the requirements of justice, the prohibition under Section 397 (3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397 (1) read with Section 401 of the Code."

The said view has been followed by the Hon'ble Supreme Court in later decisions also.

So far as the decision in Darshan Singh's case (supra), relied upon by the learned counsel for the complainant, is concerned, there it was held that the second revision petition under Section 482 Cr.P.C. was not maintainable as disputed questions of fact were involved in the case. In Deepti's case (Supra), Hon'ble Supreme Court held that the High Court Could not interfere simply on the basis of the statement of the State Govt as there was sufficient material on record to frame charge against the accused under Section 498-A IPC. In Rajinder Prasad's case (supra), the order, whereby the cognizance taken by the Magistrate was set aside by the High Court, was challenged in the Apex Court and it was held that since the revision petition filed under Section 397 Cr.P.C. had been rejected by Criminal Misc. No.M-18404 of 2008 10 the High Court then the aggrieved party had no right to file a petition under Section 482 Cr.P.C. with a prayer for quashing the same order.

In Rishi Anand vs. Govt. of NCT of Delhi, AIR 2002 SC 1531, the Apex Court quashed the FIR under Section 482 Cr.P.C. because there were no allegations of specific nature to connect the accused with the alleged offence under Section 406 IPC. There was nothing in the FIR to show that the articles were entrusted to the accused at the time of marriage. The accused had gone to USA after his brief stay in India. In Prasanta Kumar vs. The State of West Bengal, AIR 2003 SC 4412, the High Court had declined to entertain a petition under Section 482/401 Cr.P.C. on the ground that the second revision petition was not maintainable. The judgment of the High Court was set aside that petition could not be dismissed on this technical ground and the High Court should have gone out into the merit of the case to find out if it was a fit case to interfere in revision. Reliance was placed on the decision in Krishanan's case (Supra).

In Lakhwinder Singh vs. State of Punjab, 2004(4) RCR (Criminal) 104, it was held in para Nos. 12 and 19 as under:- "12. The observations made above leave no manner of doubt that the wholesome jurisdiction conferred upon the High Court by Section 482 of Code of Criminal Procedure cannot be narrowed, confined or put in a strait-jacket. Criminal Misc. No.M-18404 of 2008 11 This inherent power can always be exercised by the High Court to prevent abuse of the process of Court or to otherwise to secure the ends of justice. The only constraint on the High Court is that since the power under this section is very wide, it should be exercised with great care and and caution. On the other hand, the court should not shy away from exercising this power when the accused persons are being persecuted in the guise of prosecution. Proceedings initiated and continued for oblique motives or to wreak vengeance on the other party are liable to be quashed. Proceedings are also liable to be quashed if even on the allegation being accepted in toto, prima facie no offence could be made out.

19. It, thus, become fairly evident that the court have consistently put an end to criminal proceedings which are an abuse of the process of Court. At the initial stage, at the summoning stage and even after charges have been framed, the High Court has the inherent power to quash proceedings and to pass such orders as are necessary to prevent abuse of the process of any court or otherwise to secure ends of justice. Section 482 of the Code of Criminal Procedure contains a non-obstante clause to the effect that nothing in the Code of Criminal Procedure shall be deemed to limit the powers of the High Court to Criminal Misc. No.M-18404 of 2008 12 prevent abuse of the process of Court. Therefore, filing of the charge-sheet in Court does not in any manner affect the amplitude of the wholesome jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure. The only rider being, that greater the power, greater the care and caution in exercise thereof" This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006(3) RCR(Criminal) 941, held as under:- "Power under Section 482 Cr.P.C. has to be exercised sparingly and such power was not to be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397 (3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397 (1) of the Code, as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can entertain a petition under Section 482 of the Code, when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provision of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court." Thus, the legal position that emerges is that this Court is not expected to throw out a case on technicalities but is expected to Criminal Misc. No.M-18404 of 2008 13 interfere wherever there has been failure of justice or misuse of judicial mechanism or procedure. This Court is not expected to be a mere silent spectator when it is made out that that criminal prosecution is an abuse of process of the Court. This Court, in its discretion, is expected to prevent the abuse of process or miscarriage of justice by exercise of jurisdiction under Section 482 Cr.P.C.

In the present case the petitioners are the brothers, their wives and sister of the husband of the complainant. A perusal of the FIR (Annexure P-1) reveals that all the allegations are general in nature. So far as the entrustment of dowry articles is concerned, the memos of recovery of dowry articles (Annexure P-3 to P-6) reveal that dowry articles were recovered from the husband and mother-in- law of the complainant. It has been averred that the complainant had been tortured by all the accused for not bringing a Santro car and by calling her baanj. It has also been averred in the FIR that petitioner Nos.1 and 4 along with Mukesh Kumar, husband of the complainant, had given beatings to the complainant under the influence of liquor. However, no specific date has been mentioned nor the nature of injuries suffered by the complainant has been disclosed in this regard.

In Kans Raj vs. State of Punjab and others, 2000 (2) RCR (Criminal) 696 (SC), their Lordships of the Apex Court have observed that a tendency has developed for roping in all the Criminal Misc. No.M-18404 of 2008 14 relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. The efforts for involving the other relations ultimately weaken the case of the prosecution even against the real accused. No doubt, the charge has been framed against the petitioners by the trial Court and revision petition filed against the charge has also been dismissed but each case has to be examined on its own facts. In the present case, it is evident that the petitioners have been roped in the case merely because they are relatives of the husband of the complainant. Hence, in the facts and circumstances of this case, it would be just and expedient to quash the order vide which charge was ordered to be framed against the petitioners and the order, vide which revision petition was dismissed by the Additional Sessions Judge, Ludhiana. Accordingly, this petition is allowed. The impugned orders dated 30.4.2007 (Annexures P-7 and P-8) passed by the learned Judicial Magistrate, Ist Class, Ludhiana, order dated 4.6.2008 (Annexure P-9) passed by the learned Additional Sessions Judge (Fast Track Court), Ludhiana and all the subsequent proceedings, arising therefrom, qua petitioners are quashed. (SABINA)

JUDGE

January 22, 2009

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