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2007 DIGILAW 48 (PNJ)

Hardev Singh v. Satnam Kaur

2007-01-12

MAHESH GROVER

body2007
JUDGMENT Mahesh Grover, J. - The petitioners have invoked the jurisdiction of this Court under Section 382 of Criminal Procedure Code, praying for quashing of complaint (Annexure P-1) dated 4.4.2002 under Section 406 Indian Penal Code. 2. The petitioners are the brother-in-law and sister-in-law (Jeth and Jethani) of the complainant. The marriage of the complainant was performed with one Tarlochan Singh according to Sikh rites at Jalandhar on 15.7.1990. However, unfortunately, the relation between the husband and wife become strained. The complainant filed the complaint (Annexure P-1) against the petitioners, as also against Tarlochan Singh under Section 406/34 Indian Penal Code. 3. Pursuant to the complaint and after recording the preliminary evidence, the petitioners were summoned vide order dated 18.11.2005. 4. The petitioners have assailed the aforesaid order and have sought quashing of the complaint as well as the summoning order. It has been contended by learned counsel for the petitioners that the petitioners are old persons in the age group of seventies and perusal of the complaint also shows that the allegations are absolutely vague and no specific averments have been made qua them. On the other hand, Shri H.S. Gill, learned senior counsel for the respondent has contended that there are specific allegations against the petitioners, which have been reflected in para 3 of the complaint. 5. I have heard learned counsel for the parties and have perused the complaint as well as the impugned order. 6. The Honble Supreme Court in AIR 1976 page 1947 has observed as follows :- "It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like." 7-8. In the case of R.P. Kapur v. State of Punjab, AIR 1960 Supreme Court 866, the Honble Supreme Court summarised some categories of cases where inherent power can and should be exercise to quash proceedings : (i) Where it manifestly appears that there is a legal bar against the institution or continuance, e.g. want of sanction; (ii) Where the allegation in the First Information Report or complaint taken as 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. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as unleash vendetta to harass any person needlessly. At the same time, the section is not an instrument handed over to an accused to short- circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by Honble Supreme Court in State of Haryana and others v. Ch. Bhajan Lal and others. A note of caution was, however, sparingly and that too in rarest of rare cases. The illustrative categories indicated by Honble Supreme Court are as follows :- "(1) Where the allegations made in the First Information Report or the complaint, even if 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 Magistrate within the purview of Section 155(2) of the Code. (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 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. (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, no investigation is permitted by a Police Officer without any order of a Magistrate as contemplated under Section 155(2) of the Code. (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 proceedings 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." 9. The aforesaid observations have also been approved by the Honble Apex Court in State of Karnataka v. M. Devendrappa and another, AIR 2002 Supreme Court 671. 10. A bare reading of the complaint shows that there are no specific allegations against the petitioners. The only allegations made in paragraph 3 of the complaint are vague and unsustainable insofar as the petitioners are concerned. Even if the complaint is taken to be correct, the petitioners are not likely to be convicted. 11. 10. A bare reading of the complaint shows that there are no specific allegations against the petitioners. The only allegations made in paragraph 3 of the complaint are vague and unsustainable insofar as the petitioners are concerned. Even if the complaint is taken to be correct, the petitioners are not likely to be convicted. 11. The provisions of Sections 498-A, 304-B Indian Penal Code and 113-A and 113-B in the Evidence Act were added by the legislature, in its wisdom, for the protection of women but these provisions are being mis-used day in and day out. Whenever there is a matrimonial dispute between husband and wife, for the fault of the husband, other relations of the husband i.e. brothers, sisters and parents, are also roped in the litigation on the allegation of demand of dowry, whether they are living joint or separate. Sometimes, the parents who are aged about 80 to 90 years and unable to walk or talk and the sisters living at far off places in the matrimonial house are also involved. In such like situation, the courts while proceeding against the accused named in the complaint should be very cautious. 12. For the reasons stated above, the present petition is allowed and the complaint qua the petitioners (Hardev Singh and Nirmal Kaur) and the subsequent proceedings taken thereunder, are hereby quashed. Petition allowed.