Criminal Misc. No. M-23681 of 2007 v. Surinder Singh

Judgment

1. Surinder Singh son of Bishan Singh, r/o village Mohalla Tikhowal Badal Market Mukerian, Tehsil Mukerian, District Hoshiarpur.

2. State of Punjab. ...Respondents Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 2

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vikram Chaudhary, Advocate, for the petitioner(s), in both the petitions. Mr. M.S. Dhami, Advocate, for respondent No 1. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 2 – State. SHAM SUNDER, J. This order shall dispose of Criminal Misc. No. M-23681 of 2007, filed by Darshan Singh, Swaran Kaur @ Swaranjit Kaur, Baljeet Singh, and Manjinder Singh, and, Criminal Misc. No. M-50762 of 2007, filed by Amarjit Singh, accused/petitioners, under Section 482 Cr.P.C., for quashing complaint (Annexure P5), filed under Sections 406 and 498-A IPC and Section 8-A of the Dowry Prohibition Act, read with Section 148/149 IPC, pending in the Court of Judicial Magistrate 1st Class, Dasuya, and all the subsequent proceedings, arising therefrom, including the order dated 28.04.06, vide which, the petitioners, were summoned, for the aforesaid offences, to face trial.

2. Pushpinder Kaur d/o Surinder Singh, complainant, was married, to Amarjit Singh, accused, in November, 2002, at Mukerian. The dowry articles, were entrusted, to the accused (now petitioners). She was treated with cruelty, in connection with the demand of dowry. She was given severe beatings and also Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 3 thrashed mercilessly. The husband of Pushpinder Kaur, started demanding an amount of Rs. 1,50,000/-, for establishing factory, but her parents showed helplessness, on account of their poor financial condition. On account of cumulative effect of consistent harassment, mental torture, and physical assault, ultimately, in the month of September, 2004, Pushpinder Kaur daughter of the complainant, committed suicide. A separate first information report, with regard to the offences, punishable under Sections 306 and 498- A IPC, was got registered, against the accused-petitioners with regard to the said incident. Ultimately, the criminal complaint, aforesaid, was filed, in which, the accused, and his co-accused, were summoned, to face trial, for the aforesaid offences.

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

4. The Counsel for the petitioners, submitted that, on

08.09.04, Pushpinder Kaur, daughter of the complainant, tried to commit suicide, by strangulating herself, after going to the upper storey of their house, but, she was immediately hospitalized, in Ajit Hospital. He further submitted that Surinder Singh, respondent No. 1, and his wife also remained, in the said hospital throughout the period. He further submitted that Pushpinder Kaur, remained admitted, in the hospital upto 21.10.04, and, ultimately, she was discharged. He further submitted that Pushpinder Kaur, was again hospitalized, on 23.10.04, in Mehar Singh Hospital, as her condition Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 4 became precarious. He further submitted that Pushpinder Kaur, was discharged from Mehar Singh Hospital, on 20.12.04, and, was taken to the matrimonial home. He further submitted that the entire expenses amounting to Rs. 2,30,000/-, were borne, by the petitioners. He further submitted that, during the period from

08.09.04 to 21.10.04, and, from 23.10.04 to 20.12.04, Pushpinder Kaur, remained admitted, in the hospital, her parents did not suspect any thing. He further submitted that, on 22.12.04, Pushpinder Kaur, died, and her dead-body, was taken, by her parents, to her village, at Mukerian, after getting her autopsy conducted, in the hospital. He further submitted that FIR No. 247 dated 22.12.04, under Section 306 IPC, Police Station 'B' Division, was registered, against the husband of Pushpinder Kaur (since deceased), his mother, father, and brothers. He further submitted that, charge under Sections 306 and 498-A IPC, was framed, against the accused, in the challan case. He further submitted that, since charge under Section 498-A IPC, has already been framed almost, on the same allegations, in case FIR No. 247 dated 22.12.04, no parallel proceedings, with regard to the same, could be initiated, by way of filing a separate criminal complaint, the quashing whereof, has been sought, by virtue of the present petition. He further submitted that the parallel proceedings, have been initiated by way of filing the criminal complaint, by the father of Pushpinder Kaur, with malafide intention and ulterior motive, to wreck vengeance, on the accused. Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 5 He further submitted that continuation of the complaint, the summoning order, and the subsequent proceedings, arising therefrom, shall amount to sheer abuse of the process of the Court.

5. On the other hand, the Counsel for the respondents, submitted that the complaint, was filed, on separate allegations. They further submitted that, in the complaint, there are allegations, with regard to the demand and entrustment of dowry, as also misappropriation thereof. They further submitted that, no charge, under Section 406 IPC, was framed, against the accused/petitioners, in FIR No. 247 dated 22.12.04, earlier lodged, by the father of Pushpinder Kaur, regarding the commission of suicide by her, on account of the torture, by the accused. They further submitted that the complaint, was not filed with a malafide intention, with a view to wreck vengeance. They further submitted that continuation of the complaint, the summoning order, and the subsequent proceedings, arising therefrom, would not amount to sheer abuse of the process of the Court.

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 accepted, for the reasons to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 6 exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 7 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. 2) 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) 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. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 8 5) 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. 6) Where there is an express legal bar engrafted in any of the provisions of 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. 7) 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. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 9 categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

7. Adverting to the facts of the instant case, now let us see, as to whether, the law, laid down, in State of Haryana and others' case (supra), is applicable, to the same, or not. The death of Pushpinder Kaur, took place, on 22.12.04. In the first information report, which was lodged, by the father of Pushpinder Kaur, after her death, no allegation, with regard to the entrustment of dowry and misappropriation thereof, by the accused, was levelled. Had the dowry been demanded, by the accused/petitioners, or they would have been entrusted the same, and on making a demand thereof, if they had refused to return the same, it would have been said, that they allegedly misappropriated the same. Ultimately, on 04.05.05 i.e. after more than four months of the death of Pushpinder Kaur, the instant false complaint, was filed, by her father, just with a view to teach lesson, to the accused/petitioners, and to wreck vengeance. These parallel proceedings, by way of criminal complaint, levelling almost the same allegations, as were levelled, in FIR No. 247 dated

22.12.04, which was got registered immediately after the death of Pushpinder Kaur, was nothing, but a sheer abuse of the process of the Court. It is a matter of common experience that, as and when a bride dies, allegedly, on account of cruel treatment, meted out to Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 10 her, at the hands of the members of her in-laws family, her parents, are out and out, to implicate, as many members of the said family, in criminal cases, as they could, with a view to wreck vengeance, and to teach them a lesson. The complaint, is manifestly attended by malafides. The proceedings, in my opinion, were apparently malicious and instituted with the ulterior motive, to wreck vengeance against the accused/petitioners, and to spite them, for a private or personal grudge. The instant case, therefore, falls within the purview of Category 7, depicted in State of Haryana and others' case (supra). The continuation of complaint, the summoning order, and the subsequent proceedings, arising therefrom, would, thus, be sheer abuse of the process of the Court. The same, are, thus, liable to be quashed.

8. For the reasons recorded above, Criminal Misc. No. M-23681 of 2007, and, Criminal Misc. No. M-50762 of 2007, are accepted. Resultantly, the complaint (Annexure P5), filed under Sections 406 and 498-A IPC and Section 8-A of the Dowry Prohibition Act, read with Section 148/149 IPC, pending in the Court of Judicial Magistrate 1st Class, Dasuya, and all the subsequent proceedings, arising therefrom, including the order dated 28.04.06, vide which, the petitioners, were summoned, for the aforesaid offences, to face trial, are quashed, qua them. Any observation made, in this order, shall not be taken, as an expression of mind, on merits of the case. Criminal Misc. No. M-23681 of 2007 Criminal Misc. No. M-50762 of 2007 11

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

03.02.2010 Amodh (SHAM SUNDER) JUDGE