Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1159 (PNJ)

Vijay Kumar v. Sarita Devi

2005-11-09

SURYA KANT

body2005
Judgment Surya Kant, J. 1. The prayer in this petition is for quashing of the criminal complaint dated 8.11.1994 (Annexure P-4) under Sections 406/498-A/34 IPC and summoning order dated 7.12.1996 (Annexure P-5) passed therein. 2. The aforementioned complaint has been filed by the respondent (Sarita Rani) who got married to petitioner No. 1 (Vijay Kumar) on 28.11.1988. It appears that petitioner No. 1 and the respondent could not pull on together, as a result of which respondent filed a criminal complaint under Sections 4 and 6 of the Dowry Prohibition Act and Sections 406/498-A IPC on 12.7.1989 (Annexure P-1) in the Court of the learned Judicial Magistrate Ist Class, Dasuya. From the contents of the aforementioned complaint, it is apparent that apart from allegations regarding harassment and maltreatment for brining insufficient dowry, the respondent also alleged that petitioner No. 1 was having illicit relationship with accused Nos. 2 and 3 arrayed in that complaint. The aforementioned complaint was withdrawn by the respondent on 19.5.1990 (Annexure P-2). It will be apposite to reproduce the statement made on behalf of the respondent and the order passed thereupon by the learned Sub Divisional Judicial Magistrate, Dasuya, on 19.5.1990 which reads as follows :- "Statement of Shri Jagtar Singh, Advocate learned counsel for the complainant. As the parties have compromised and they have started residing together, so applicant does not intend to proceed with the complaint any further and the same may be treated as withdrawn. Present : Counsel for the complainant. In view of the above statement of the complainant made through her counsel and in order to promote amity between the parties this complaint case is dismissed as withdrawn as compromised. File be consigned to the record room within a due period of time". 3. On 22.10.1992 the respondent filed a petition for divorce Section 13 of the Hindu Marriage Act, 1955 against petitioner No. 1 which allowed ex parte by learned Additional District Judge, Gurdaspur on 7.2.1993 (Annexure P-3). During the pendency of the divorce petition, however, respondent filed the impugned criminal complaint on 8.11.1994 (Annexure P-4) under Sections 406/498-A/34 IPC in which apart from her husband, the respondent also impleaded her parents-in-law, i.e., petitioner Nos. 2 and 3 herein. 4. During the pendency of the divorce petition, however, respondent filed the impugned criminal complaint on 8.11.1994 (Annexure P-4) under Sections 406/498-A/34 IPC in which apart from her husband, the respondent also impleaded her parents-in-law, i.e., petitioner Nos. 2 and 3 herein. 4. In support of the allegations contained in the impugned complaint, the respondent led preliminary evidence comprising of her own statement, apart from depositions made by Mohan Singh, Sanjogta Kumari, Avtar Singh, Bhim Singh and one Naresh Chand. On an appreciation of that evidence and having found that the respondent has been able to make out a prima facie case under Sections 406/498-A/34 IPC, the petitioners were summoned vide the impugned order dated 7.12.1996 (Annexure P-5). 5. Notice of motion was issued and in response thereto reply has been filed. The petitioners have also filed replication to the said reply. 6. In support of the prayer made in this petition, learned counsel for the petitioners has primarily contended that even as per the allegations made in the impugned complainant, the respondent was allegedly turned out of the matrimonial home by petitioner No. 1 "more than three years ago and has been residing with her parents in her parental house", therefore, the impugned complaint is hit by Section 468 Cr.P.C. being barred by limitation. It is contended that since the maximum imprisonment prescribed for the offences under Sections 4096/498-A IPC is three years, a criminal complaint is not maintainable after the expiry of period of three years. In this regard reliance has also been placed upon the averments made in para No. 2 of the written statement wherein it is averred that "she was again turned out of the matrimonial home on 25.5.1990". In support of the aforesaid contention, learned counsel also relies upon a judgment of the Supreme Court in Ramesh and another v. State of Tamil Nadu, 2005(1) Apex Crl. 537 : 2005(2) RCR(Crl.) 68 (SC) : (2005)3 SCC 507. 7. The law in relation to the quashing of criminal proceedings by invoking inherent jurisdiction under Section 482 Cr.P.C. is well settled by now. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, which has been recently reiterated by their Lordships in Zhandu Pharmaceutical Works Limited v. Mohd. Sharaful Haque and another, 2005(1) Apex Crl. 7. The law in relation to the quashing of criminal proceedings by invoking inherent jurisdiction under Section 482 Cr.P.C. is well settled by now. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, which has been recently reiterated by their Lordships in Zhandu Pharmaceutical Works Limited v. Mohd. Sharaful Haque and another, 2005(1) Apex Crl. 75 : 2004(4) RCR(Crl.) 937 (SC) : (2005)1 SCC 122, High Court, the scope of interference has been narrowed down in the following circumstances :- "(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge". 8. To bring the case within the aforementioned parameters, it is obligatory to read the contents of the impugned complaint (Annexure P-4) on their face value. It is true that if the admitted facts or record reveal that the criminal proceedings have been initiated after the expiry of the maximum period of limitation, powers under Section 482 Cr.P.C. can be invoked and such criminal proceedings can be struck down at the threshold. The facts of the case in hand, however, reveal an altogether different story. There is no denial to the fact that the first criminal complaint was filed by the respondent on 12.7.1989 which she withdrew on 19.5.1990 by making a statement which has been reproduced above. It is after a period of more than two years that she filed a petition for dissolution of her marriage on 22.10.1992 which was allowed ex parte on 7.2.1995. It will be useful to reproduce para 2 of the judgment dated 7.2.1995 as follows :- "2. Smt. Sarita Rani petitioner appeared as PW-1. She deposed on oath that she was married to the respondent on 24.11.1988 at village Jaja according to Hindu Rites but no child was born out of this wedlock. Her parents had given sufficient dowry at the time of marriage but the respondent and his family members were not satisfied with the dowry. They started mal- treating and pressuring the petitioner to bring more items of dowry from her parents. Her parents had given sufficient dowry at the time of marriage but the respondent and his family members were not satisfied with the dowry. They started mal- treating and pressuring the petitioner to bring more items of dowry from her parents. But she showed her inability to bring more items of dowry. The petitioner was given beating by the respondent and members of his family. She further stated that on 6.5.1989 the respondent had turned her out of the matrimonial home in three wearing clothes. Her parents and respectables made efforts to prevail upon the respondent, but all in vain. She then filed an application under Section 125 Cr.P.C. for the grant of maintenance which was contested by the respondent. Shri C.D. Gupta, Judicial Magistrate Ist Class, Dasuya granted maintenance allowance at the rate of Rs. 250/- PM vide order dated 2.11.1989. She has been living with her parents since 6.5.1989 and no efforts were made for reconciliation after 2.11.1989. She further stated that she is unable to live with the respondent under the circumstances mentioned in her statement. She prayed for a decree of divorce." 9. The aforesaid averments were accepted by the learned Additional District Judge in Para 5 of the judgment thereby granting an ex parte decree of divorce in favour of the respondent. 10. On a conjoint reading of the factual averments, prima facie, it appears that the respondent was persuaded to withdraw her earlier complaint on 19.5.1990 with an assurance that the dispute has been amicably resolved and she was permitted to join her matrimonial home. Her dreams were, however, found shattered when, as per allegations made by her in the subsequent complainant, she was compelled to leave the matrimonial home on account of maltreatment and harassment by petitioner No. 1 and his parents. Those allegations were found to be correct and her divorce petition was accepted. During the pendency of the said divorce petition, respondent had filed the second complaint on 8.11.994. Thus, if petitioner No. 1 allowed the respondent to join him after she made her statement on 19.5.1990 and they continued to live together till 1992 when she filed a divorce petition, there is no escape but to hold that the complaint was filed within three years, therefore, the same is not hit by the provisions of Section 468 Cr.P.C. 11. Be that as it may, since the petitioners have been summoned and will have an opportunity to lead evidence and to show that the complaint is actually barred by limitation, it is neither expedient nor desirable to return a firm finding of fact in this regard. The fact remains that the respondent needs to be given full and fair opportunity to show that after 19.5.1990 till she was compelled to seek dissolution of her marriage on 22.10.1992; she and petitioner No. 1 lived together as husband and wife and she was again subjected to maltreatment and/or harassment which would certainly not only give a fresh cause of action but would also revive the previous cause of action, if any, accrued in her favour. 12. In view of the aforementioned discussion, I am satisfied that no case to interfere at this stage is made out. Consequently, this petition is disposed of with liberty to the petitioners to raise all the pleas including the plea with regard to limitation before the learned Judicial Magistrate at an appropriate stage which shall be considered in accordance with law. 13. There is, however, one aspect of the matter which needs to be taken notice of by this Court. In the first complaint (Annexure P-1), the respondent did not implead her parents-in-law, i.e, respondent Nos. 2 and 3 nor any specific allegations regarding maltreatment or harassment for bringing insufficient dowry were made against them. In the impugned complaint, however, they have been arrayed as respondent Nos. 2 and 3. In these circumstances, possibility of an inflated version in order to implicate all the family members of petitioner No. 1 at this stage cannot be ruled out. However, this issue too will have to be gone into by the learned Judicial Magistrate. Having regard to the age of petitioner Nos. 2 and 3 and for the reason aforementioned, liberty is granted to them to move and application before the learned Judicial Magistrate to grant them exemption from personal appearance, however, with an undertaking that they will be represented by a counsel; will not delay or stall the proceedings of the case; will not dispute their identity as accused; and will have no objection if evidence is recorded in their absence. If such an application is moved, learned trial Court is directed to grant them exemption from personal appearance, subject to such other conditions that he may like to impose. Since the impugned complaint was filed way back in the year 1994, learned Judicial Magistrate is directed to conclude the proceedings within one year. Needless to say that the matter shall be decided by the learned Judicial Magistrate in accordance with law being totally influenced of the observations made above which are tentative in nature. Disposed of.