Criminal Misc. No. M-23057 of 2008 v. State of Punjab

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S. Dhaliwal, Advocate, for the petitioners. Mr. T.S. Salana, Deputy Advocate General , Punjab, for respondent No. 1 – State. Mr. Gopal Singh, Advocate, for respondent No. 2. SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., for quashing FIR (Annexure P1), order (Annexure P4), dated 26.02.02, passed by the Criminal Misc. No. M-23057 of 2008 2 Additional Chief Judicial Magistrate, Sangrur, vide which, the petitioners, were summoned, as additional accused, in pursuance of the application, under Section 319 Cr.P.C., order (Annexure P6), dated 29.05.03, passed by the Additional Chief Judicial Magistrate, Sangrur, vide which, the application for review, filed by the petitioners, was dismissed, order (Annexure P7) dated 11.03.04, vide which, the revision-petition, was dismissed, by the Court of Sessions Judge, Sangrur, and the order (Annexure P19) dated 29.05.08, passed by the Court of Judicial Magistrate 1st Class, Sangrur, vide which, the charge, was framed, against them, has been filed by the petitioners.

2. Naveen Gupta brother of Madhu Bala, wife of Deepak Kumar, got registered the aforesaid FIR, on the allegations, that the petitioners and her (Madhu's) husband, Deepak Kumar Goyal, along with others, dishonestly misappropriated the articles of dowry entrusted to them, subjected his sister, to cruelty, in connection with the demand of dowry, as a result whereof, she started living under deep stress, and, on account of that reason, she might have committed suicide.

3. The trial Court, in pursuance of the application under Section 319 of the Criminal Procedure Code, summoned Jatinder Mohan, Geeta Devi, Suresh Kumar, Sneh Lata, Shalu, and, Surekha, as additional accused.

4. Feeling aggrieved, the instant petition, has been filed, by the accused-petitioners. Criminal Misc. No. M-23057 of 2008 3

5. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully.

6. The Counsel for the petitioners, submitted that, petitioner No. 1 Suresh Kumar, is the brother of Deepak Kumar Goyal, petitioner No. 2, is the sister-in-law of Deepak Kumar Goyal, and wife of Suresh Kumar, petitioner No. 3, is the sister of Deepak Kumar Goyal, whereas, petitioner No. 4, is the mother of Deepak Kumar Goyal. He further submitted that, challan, was not presented, against the petitioners, by the Police, as after thorough investigation, they were found to be innocent. He further submitted that, thereafter, an application, under Section 319 Cr.P.C., was filed, and without recording any satisfaction, that there were reasonable prospects of conviction, on the basis of such evidence, the Court below, illegally summoned, the petitioners, as additional accused, for the offences, punishable under Sections 406 and 498-A IPC. He further submitted that the Courts below, acted illegally, in passing the summoning order, dismissing the review and revision petitions, and framing charge, against the petitioners. He further submitted that the petitioners, were not at all involved, in the alleged commission of crime, but, were falsely implicated, being the near relatives of Deepak Kumar Goyal. He further submitted that, in case, the FIR, and the orders aforesaid, qua the petitioners, are allowed to continue, the same will amount to sheer abuse of the process of the Court.

7. On the other hand, the Counsel for the respondents, submitted that there was sufficient evidence, against the petitioners, Criminal Misc. No. M-23057 of 2008 4 and, thus, the Court of the Additional Chief Judicial Magistrate, Sangrur, recorded satisfaction, that they committed the offences, punishable under Sections 406 and 498-A IPC. They further submitted that the trial Court, rightly came, to the conclusion, that the petitioners, should be summoned, as additional accused. They further submitted that the orders impugned, being legal and valid, are not liable to be set aside.

8. 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 accepted, for the reasons, to be recorded, hereinafter. The perusal of the record shows, that marriage of Madhu, sister of the complainant/respondent, took place, on

13.12.96, at Dhuri. Thereafter, in the month of April, 1997, she alongwith her husband shifted to Ludhiana, and a son namely Mohit, was born, on 15.09.97. However, on account of some difference of temperament, between the husband and wife, Madhu, left the house of Deepak, from Ludhiana, alongwith Mohit, on 09.01.98, and came to Bareta, on the same day. She abandoned Mohit, her child, in front of the house of the petitioners, and left a piece of newspaper, on which, it was written 'take care of Mohit'. The petitioners, informed the Police, with regard to the leaving of Mohit, in front of their house, by Madhu, and DDR/FIR, under Section 317 IPC, was registered, against her. Thereafter, Deepak Kumar Goyal, filed a divorce petition, against Madhu, at Ludhiana, on 03.02.98, wherein, her Counsel put in appearance, and, thereafter, none appeared, in the Criminal Misc. No. M-23057 of 2008 5 proceedings conducted, in the trial Court, as a result whereof, ex- parte decree of divorce, was granted, in favour of Deepak Kumar Goyal, against Madhu, his wife. In this back-ground, the allegations, contained in the first information report, are required to be scrutinized. In the first information report, there are only general and vague allegations, levelled against the petitioners. In the FIR, the allegations, against the petitioners, were that, at the time of marriage, dowry articles, were handed over, to them. No entrustment of any specific article to any of the petitioners, was made, in the first information report. No specific allegation of cruelty, having been allegedly committed, by the petitioners, against Madhu wife of Deepak Kumar Goyal, and sister of respondent No. 2, was made, in the first information report. It is evident, that petitioners No. 1, 2, and 3, were married, much earlier, to the marriage of Madhu with Deepak Kumar Goyal. Under these circumstances, there could not be any question of demand of dowry by them. Since, Madhu, was residing with her husband, at Ludhiana, and the mother of Deepak Kumar Goyal, was residing, at some other place, the question of Madhu being subjected by her, or the other petitioners, to cruelty, in connection with the demand of dowry, also did not arise. At the most, it could be said, that the alleged articles of dowry, were entrusted, to the husband, and it was he, who might have subjected Madhu, to cruelty, in connection with the demand of dowry. In Micheal Machado & another Vs. Central Bureau of Investigation & another, 2000(2), RCR (Crl.), 75 (SC), the principle of law, laid Criminal Misc. No. M-23057 of 2008 6 down, was to the effect, that the evidence, for the purpose of summoning the accused, in pursuance of the application, under Section 319 Cr.P.C., must have higher standard, than the prima-facie case. It was also held, in the aforesaid case, that the Court, must record the satisfaction, that there was reasonable prospect of conviction of the accused, on the evidence, adduced by the complainant. In the absence of recording such satisfaction, the additional accused, could not be summoned, in pursuance of the application, under Section 319 Cr.P.C. No such, satisfaction, was recorded, by the trial Court, while passing the order for summoning the petitioners, as additional accused. On the basis of vague and general allegations, regarding the demand of dowry and subjecting Madhu, to cruelty, in connection with the demand of the same, certainly, the petitioners, could not be summoned, as additional accused. It is a matter of common experience, that a tendency, has developed, that when the relations, between the husband and wife become strained, the bride and her parents, are always out and out, to rope in, as many members of the family of the bride-groom, as they can, with a view to wreck vengeance. This practice, is required, to be curbed. The first information report, against the petitioners, was, thus, apparently got registered with malafide intention. The allegations, contained in the first information report, and the evidence produced by the complainant, do not make out any case, under Sections 406 and 498-A IPC, against the petitioners. In these circumstances, the trial Court, was wrong, in summoning the Criminal Misc. No. M-23057 of 2008 7 petitioners, as additional accused, for the offences, punishable under Sections 406 and 498-A IPC. The first information report, and the orders impugned, if allowed to continue, shall certainly amount to sheer abuse of the process of Court. The first information report and the orders impugned, are, thus, liable to be set aside.

9. For the reasons recorded above, Criminal Misc. No. M- 23057 of 2008, is accepted. Resultantly, FIR (Annexure P1), and the orders impugned are quashed qua the petitioners. Any observation, made, in this order, shall not be taken, as an expression of mind, on merits of the case.

20.01.2010 Amodh (SHAM SUNDER) JUDGE