Criminal Misc. No. M-1733 of 2009 v. State of Punjab

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.D. Sharma, Advocate, for the petitioners. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. Mr. Rajesh Chaudhary, Advocate, for Mr. Sanjiv Pandey, Advocate, for respondent No. 2. Criminal Misc. No. M-1733 of 2009 2 SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 186 dated 30.10.98, under Sections 109, 406, 498-A and 506 IPC, Police Station Division No. 3, Jalandhar, and, the order dated

24.05.99, vide which, the petitioners, were declared proclaimed offenders, has been filed by Madhu Sharma @ Madhu Lata Sharma wife of Umesh Sharma, presently residing at 985, 20th Avenue, Vancouver, B.C. Canada, through her attorney Mrs. Meenakshi Sharma wife of Brij Bhushan Sharma, resident of Street No. 3, Ward No. 9, Nand Singh Avenue, near New Hindu Putri Pathshala School, Khanna, District Ludhiana, and, Umesh Sharma son of Late Sh. Chander Kumar Sharma, presently residing at 985, 20th Avenue, Vancouver, B.C. Canada, through his attorney Sudesh Sharma wife of Late Mr. Chander Sharma, resident of Street No. 2, Ward No. 9, Nand Singh Avenue, near New Hindu Putri Pathshala School, Khanna, District Ludhiana.

2. The facts, in brief, that, Mohan Lal, complainant/respondent No. 2, migrated to Canada, about 10 years ago. The marriage of Jiwan Lata daughter of Mohan Lal, complainant/respondent No. 2, was solemnized with Rajesh Sharma, on 13.02.94, at Noormahal (India). Sufficient dowry articles, were given, at the time of marriage. However, soon after the marriage, Jiwan Lata, was subjected to cruelty, in connection with the demand of more dowry, from time to time, by the petitioners and their co- petitioners (non-applicants). It was stated that, thereafter, Jiwan Lata, Criminal Misc. No. M-1733 of 2009 3 went to her parents, at Canada. It was further stated that most of the demands, with regard to the more dowry, made by the petitioners and their co-petitioners (non-applicants), in the form of car, cash amount, travel expenses of Rajesh Sharma, husband of Jiwan Lata, for coming to Canada etc. etc., were fulfilled by the complainant, but, despite that, his daughter, was continuously tortured both physically and mentally. It was further stated that, the efforts, made by the complainant, for the rehabilitation of Jiwan Lata, in her matrimonial home, proved to be futile, before the greedy and adamant demeanour of the petitioners, and their co-petitioners (non-applicants). Left with no alternative, the aforesaid FIR was got registered.

3. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioners, submitted that, both the petitioners, are residing, in foreign country. He further submitted that, the petitioners, have not been participating, in the proceedings, in the Court of law, at Jalandhar, since 1999. He further submitted that the present petition, has been filed, by both the petitioners, through their attorneys. He further submitted that, a petition, under Section 482 Cr.P.C., can be maintained, by the accused/petitioners, through their attorneys. He further submitted that, the petitioners, were illegally declared proclaimed offenders, as the proclamation, was not published, in the foreign country, where, they have been residing. He further submitted that, even the petitioners, had no role, to play, in the alleged commission of crime. He further submitted Criminal Misc. No. M-1733 of 2009 4 that the offences, were largely committed, in foreign country, and, as such, the Courts, at Jalandhar, had no territorial jurisdiction.

5. On the other hand, the Counsel for the respondents, submitted that, petition under Section 482 Cr.P.C., filed by the petitioners, through their attorneys, is not maintainable. He also repudiated the remaining submissions, made by the counsel for the petitioners.

6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, being not maintainable, for the reasons, to be recorded, hereinafter. Admittedly, the aforesaid FIR, was registered, against the petitioners, in Police Station Division No. 3, Jalandhar (India). There is, no dispute, about the factum, that the petitioners, are residing, in Canada and they have filed the present petition, through their attorneys. In Janata Dal Vs. H.S. Chaudhary and others, JT 1991 (3), SC, 497, it was held, as under:- “Even if there are million questions of law to be deeply gone into and examined in a criminal case registered against specific accused persons, it is for them and they alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. It was further held that the petitioner in that case (H.S. Chaudhary) had no locus standi to invoke the extraordinary jurisdiction of the High Court, under Section 482 Cr.P.C., for quashing the FIR and all other proceedings arising therefrom on the plea of preventing Criminal Misc. No. M-1733 of 2009 5 the abuse of process of the Court. In the above mentioned case the accused persons where alive and were capable of defending themselves and protecting their interests and it was also not shown that the petitioner Mr. H.S. Chaudhary had any particular or special interest in the accused persons.”

7. In Simranjit Singh Mann Vs. Union of India and another, AIR, 1993, SC, 280, the Apex Court, held, as under :- “Ordinarily the aggrieved party which is affected by any order has the right to seek redress by questioning the legal validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which in law recognized as sufficient to permit any other person e.g. next friend, to move the Court on his behalf. It was also held that if a guardian or a next friend initiates proceedings for and, on behalf of such a disabled aggrieved party, it is, in effect, proceedings initiated by the party aggrieved and not by a total stranger, who has no direct personal stake, in the outcome thereof. In the above mentioned case, a leader of a political party approached the Supreme Court under Article 32 of the Constitution of India, challenging the conviction and sentence of the assassins of Gen. Vaidya. The two convicts were alive but did not file any appeal against the conviction and sentence. The Apex Court, held that the petitioner, in that case, had no locus standi to invoke the jurisdiction under Article 32 of the Constitution.”

8. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal, that it is only the accused person, against whom, a criminal case, has been registered, can file a petition, under Section 482 Cr.P.C., in the High Court, for quashing the FIR, and the subsequent proceedings, and no third person, can Criminal Misc. No. M-1733 of 2009 6 fight a proxy war, on his behalf, under the garb of public interest litigant. The aggrieved party, which is affected by an order, is required to seek redress of its grievance, by questioning the legal validity or correctness of the same. It is another thing, if the aggrieved party, is suffering from some disability i.e. unless such party is a minor, an insane person, or is suffering from any other disability, which in law is recognized as sufficient to permit any other person e.g. next friend, to move the Court, on his behalf. On behalf of minor, or insane person, a guardian or a next friend, initiates proceedings, so as to challenge the legality and validity of the order, passed against him, to seek redressal of the grievance, as under law, such a person having disability, cannot be said to be competent, to file a petition, except through next friend or guardian. In the instant case, there is nothing, on the record, that the petitioners, are suffering from any disability, recognized by the provisions of law. They are accused, in the aforesaid FIR. It is they, who are aggrieved, against the registration of the FIR. It is they, who can challenge the same, on any ground. If, in criminal cases, until and unless, a person aggrieved suffers from some disability, recognized by law, a stranger or some other person, is allowed, to fight the proxy war, then the very purpose of criminal justice system, shall be defeated. In that event, the Courts, would be mushroomed by public interest litigants. No case, laying down the contrary principle of law, has been cited by the counsel for the petitioners. In this view of the matter, the present petition, under Section 482 Cr.P.C., filed Criminal Misc. No. M-1733 of 2009 7 by the petitioners, through their attorneys, is not maintainable. On this ground alone, the same is liable to be dismissed.

9. Since the petition, is held to be not maintainable, there is no necessity of considering the other submissions, advanced by the Counsel for the petitioners.

10. For the reasons recorded above, Criminal Misc. No. M-1733 of 2009, stands dismissed, being not maintainable, through attorneys. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

30.03.2010 Amodh (SHAM SUNDER) JUDGE