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2006 DIGILAW 507 (PNJ)

Balbir Kaur v. State Of Punjab

2006-02-16

RAJIVE BHALLA

body2006
Judgment Rajive Bhalla, J. 1. Cri. Misc. No. 6040 of 2006. Crl. Misc. Application is allowed and a copy of the judgment and decree dated 9.2.2004, passed by the Additional District Judge, Nawanshahr is taken on record. Crl. Misc. No. 26297-M of 2004 2. Prayer in the present petition, filed under Section 482 of the Cr.P.C., is for quashing of FIR No. 165, dated 18.8.2000 registered under Sections 406/420/120-B of the IPC, at Police Station Sidhawan Bet, District Ludhiana. 3. The complainant-respondent No. 2, Karam Singh lodged the present FIR alleging that his wife Balbir Kaur-petitioner No. 1 had, during the subsistence of their marriage, got married to one Rajinder Singh @ Bagga, in connivance with other co-accused. It is further alleged by the complainant in the FIR that he left his wife at her parents house as her mother was seriously ill. After a few days, when he went to bring her back, her parents refused to send her with him. Thereafter, despite requests by the mediator, as also the Panchayat, his wife was not sent back to his house. It is further averred in the FIR that the complainant received information that his wife married to one Rajinder Singh @ Bagga son of Harbans Singh. FIR also mentions the names of the mediator and the persons who participated in the marriage. 4. Counsel for the petitioners contends that the aforementioned FIR, apart from being false, is a gross abuse of the process of law. Petitioner No. 1, fed up with the demands of dowry, taunts, maltreatment and the fact that the complainant-respondent No. 2, was a drunkard and an opium addict, filed a petition, for dissolution of marriage by grant of a decree of divorce, before the Additional District Judge, Nawanshahr on 25.2.2000. The complainant-respondent No. 2 filed a written statement and instead accused petitioner No. 1 of wrong doing. It is further contended that a perusal of the written statement, filed in the aforementioned petition, does not disclose that the complainant made any averment to the effect that petitioner No. 1 had contracted a second marriage or that the other petitioners had participated in that marriage. It is further contended that on 15.1.2004, the complainant was proceeded against ex parte, as he failed to put in appearance. It is further contended that on 15.1.2004, the complainant was proceeded against ex parte, as he failed to put in appearance. Vide judgment and decree dated 9.2.2004, the Additional District Judge, Nawanshahr allowed the aforementioned petition and granted a divorce to petitioner No. 1. 5. It is further argued that after coming to know to the allegations, in the FIR, petitioner No. 1 contacted Rajinder Singh @ Bagga. Rajinder Singh has sworn an affidavit dated 20.5.2003 averring therein that he was married to one Sukhwinder Kaur d/o Jeona Singh on 13.9.2001 and has no concern or link with the petitioner No. 1. 6. On the aforementioned facts, counsel for the petitioners contends that the present FIR and all subsequent proceedings, emanating therefrom, be quashed. The FIR does not disclose the commission of any offence and the facts, narrated hereinbefore, disclose an abuse of the process of law. Counsel for the State of Punjab, on the other hand, contends fact, whether petitioner No. 1 has contracted a second marriage, be determined during the course of the trial, on the basis of evidence, to be led by the prosecution and, therefore, there is no merit in the contentions of counsel for the petitioners. It is further contended that as the challan has been presented, this Court should not quash the FIR and all proceedings emanating therefrom. 7. I have heard learned Counsel for the parties and perused the record. 8. A perusal of the FIR, in my considered, opinion, reveals a blatant attempt to misuse the process of law. There is no evidence, placed on record, or cited by the prosecution, or by the complainant, in support of the allegations that petitioner No. 1 contracted a second marriage. Petition No. 1, as noticed hereinbefore, had filed a petition for dissolution of marriage, by grant of a decree of divorce. The complainant-respondent No. 2 filed a written statement in the said petition and even appeared before the Lok Adalat. Eventually, the complainant absented himself from Court, which led to the passing of a decree of divorce, in favour of petitioner No. 1. 9. A perusal of the judgment and decree dated 9.2.2004, passed by the Additional District Judge, Nawanshahar reveals that the complainant-respondent No. 2 did not raise any plea that petitioner No. 1 had contracted a second marriage. Eventually, the complainant absented himself from Court, which led to the passing of a decree of divorce, in favour of petitioner No. 1. 9. A perusal of the judgment and decree dated 9.2.2004, passed by the Additional District Judge, Nawanshahar reveals that the complainant-respondent No. 2 did not raise any plea that petitioner No. 1 had contracted a second marriage. It appears that the FIR was lodged so as to pressurise petitioner No. 1 into resuming co-habitation with the complainant-respondent No. 2. 10. Another factor that merits notice is the affidavit dated 20.5.2003, sworn by Rajinder Singh Bagga, the alleged second husband petitioner No. 1. A perusal of the affidavit reveals that Rajinder Singh @ Bagga, apart from denying the factum of any marriage with petitioner No. 1, has disclosed the name of his wife as Sukhwinder Kaur, the date of marriage as 13.9.2001 and has categorically averred that he is still married and residing with Sukhwinder Kaur. 11. Section 482 of the Cr.P.C. confers powers upon this Court to quash an FIR or proceedings emanating therefrom, where the facts disclosed do not make out an offence and/or reveal that the process of law, is sought to be exploited and abused with oblique motives. Though these powers are to be exercised in exceptional circumstances, I am of the considered opinion that the present case is one of those cases, where if powers, under Section 482 of the Cr.P.C., are not exercised, injustice would visit the petitioners. Petitioner No. 1 is a hapless, abandoned lady, being prosecuted by her husband, on allegations of contracting a second marriage. A perusal of the reply, filed to the present petition, does not disclose any material that would enable any Court to even record a prima facie finding that petitioner No. 1 had contracted a second marriage. The absence of any prima facie legal evidence is support of the averments, contained in the FIR, in my considered opinion, is sufficient to quash the present FIR. The FIR has been lodged under Sections 406/420/120-B of the IPC. A perusal of the facts, referred to in the FIR, does not disclose the ingredients of misappropriation or cheating, offences for which the petitioners are sought to be prosecuted. A bare perusal of the FIR would substantiate the aforementioned conclusion. The FIR has been lodged under Sections 406/420/120-B of the IPC. A perusal of the facts, referred to in the FIR, does not disclose the ingredients of misappropriation or cheating, offences for which the petitioners are sought to be prosecuted. A bare perusal of the FIR would substantiate the aforementioned conclusion. A second marriage, during the subsistence of the first marriage, is an offence, punishable, under Section 494 of the IPC, prosecution whereof is circumscribed by the provisions of Section 198 of the Code of Criminal Procedure, namely cognizance can only be taken by a Court, pursuant to a complaint, filed by the person aggrieved. The necessary ingredients, of an offence, under Section 494 of the IPC, are absent from the narrative of facts, disclosed in the FIR. As noticed hereinbefore, there is no material with the prosecution to substantiate the allegations of second marriage. 12. In view of what has been stated above, I am of the considered opinion that the present FIR was lodged with the object of harassing the complainants wife, who had filed a petition for divorce which, as noticed hereinbefore, has been allowed by the grant of a decree of divorce and, therefore, the present FIR and the proceedings emanating therefrom, being an abuse of the process of law, are liable to be quashed. Consequently, the present petition is allowed, and FIR No. 165, dated 18.8.2000 registered under Sections 406/420/120-B of the IPC, at Police Station, Sidhwan Bet, District Ludhiana, as also all subsequent proceedings, emanating therefrom, are quashed.