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2010 DIGILAW 1592 (PNJ)

Amit Ahuja v. Gian Parkash Bhambri

2010-05-06

SHAM SUNDER

body2010
Judgment Sham Sunder, J. 1. This petition under Section 482 Cr. P.C. for quashing Complaint No. 12 dated 15.5.07 (Annexure P-l), the summoning order dated 2.7.08 (Annexure P-2) passed by the Court of Judicial Magistrate 1st Class, Patiala and, all the subsequent proceedings, arising therefrom, has been filed by Amit Ahuja s/o Late Sh. Kamlesh Chander Ahuja, resident of 212-B, Al Quassis, Dubai through his lawful Special Power of Attorney holder, Indu Ahuja wife of Late Sh. Kamlesh Ahuja r/o H. No. 1007, Sector 38-B, Chandigarh. 2. The facts, in brief, are that, the marriage between Gauri daughter of the complainant and Amit Ahuja, petitioner was solemnized, through Chuni Chadai ceremony, on 9.9.2003, at Patiala. Therefore, the marriage was registered on 12.9.2003 and ultimately proper Phera ceremony as per Hindu religious rites, was performed on 7.2.2004, at Patiala. At the time of marriage, sufficient articles of dowry, and a cash amount of Rs. 4 lacs, were entrusted to the petitioner, and his co-petitioners (non-applicants). Prior to the solemnization of marriage, the petitioner, represented himself, to be an employee of SMB Computers, at Dubai, and claimed that, his brother namely Ashish Ahuja, was a permanent resident of USA, where his mother was settled in Chandigarh. Gauri and Amit Ahuja left for Dubai, in the month of February, 2004, after having a short stay in India. In fact, the petitioner was serving with SMB Computers Distributors of Samsung, and was of Peripheral Gulf Visa. Soon after the marriage, Gauri daughter of the complainant, was subjected to cruelty, in connection with the demand of more dowry. While living in Dubai, in the month of February, 2004, the daughter of the complainant, was harassed by her husband, to get arranged ticket, from the funds of her father. The daughter of the complainant tried her best, to keep her in-laws happy, but in vain. Ultimately she returned to India, and narrated the entire incident to the complainant as a result, whereof, a Panchayat was convended, wherein, the accused, were also summoned but no amicable settlement could be arrived at. On 22.7.05 the daughter of the complainant, went to Dubai and found the apartment of the petitioner locked. Thereafter, she stayed with her friend and, ultimately, resided as paying guest, at Sharjah and returned to India on 01.09.05. On 22.7.05 the daughter of the complainant, went to Dubai and found the apartment of the petitioner locked. Thereafter, she stayed with her friend and, ultimately, resided as paying guest, at Sharjah and returned to India on 01.09.05. Ultimately, the daughter of the complainant, obtained an ex parte divorce from the petitioner, but her in-laws refused, to return the dowry articles, entrusted at the time of marriage. Left with no other alternative the aforesaid complaint was filed. 3. After recording the preliminary evidence, the trial Court summoned the petitioner and his co-petitioners (non-applicants), to face trial, for the offences, punishable under Sections 406 and 498-A IPC. 4. I have heard the Counsel for the parties, and have gone through the documents on record carefully. 5. The Counsel for the petitioner submitted that admittedly, Amit Ahuja petitioner, who is an accused in the aforesaid complaint is residing in Dubai. She further submitted that, in Section 482 Cr.P.C. there is no reference to person aggrieved. She further submitted that, if there is abuse of the process of Court, a person, genuinely interested in the accused, can file a petition, under Section 482 Cr.P.C. She further submitted that, since the complaint, the summoning order, and all the subsequent proceedings, arising therefrom, are nothing but an abuse of process of the Court, Indu Ahuja, attorney of the petitioner, being genuinely interested, in the matter and locus standi and the petition, could be filed,. through her, by the petitioner. She further submitted that almost all the alleged offences were committed in Dubai. She further submitted that since the cause of action, arose within the jurisdiction of Courts at Dubai, the complaint could not be filed in the courts at India. She further submitted that, since the compalainant, the summoning order, and all the subsequent proceedings, arising thereform, are the abuse of process of the Court, the same are liable to be quashed. 6. On the other hand, the counsel for the respondent submitted that petition under Section 482 Cr.P.C. filed by the petitioner, through his attorney, is not maintainable. She also repudiated the remaining submissions, made by the counsel for the petitioner. 7. 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 dismissed, being not maintainable, for the reasons, to be recorded, hereinafter. She also repudiated the remaining submissions, made by the counsel for the petitioner. 7. 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 dismissed, being not maintainable, for the reasons, to be recorded, hereinafter. Admittedly, the aforesaid complaint, was filed against the petitioner and his co-petitioners, in the Courts, at India. There is no dispute about the factum, that Amit Ahuja, petitioner, is residing in Dubai. In Janata Dal v. H.S. Chaudhary and others, JT 1991 (3) SC 497 it was held, as under :- "Even if there are million questions of law to be deeply gone into and examined in a criminal case registered against specific accused persons, it is for them and they alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. It was further held that the petitioner in that case (H.S. Chaudhary) had no locus standi to invoke the extraordinary jurisdiction of the High Court, under Section 482 Cr.P.C. for quashing the FIR and all other proceedings arising therefrom on the plea of preventing the abuse of process of the Court. In the above mentioned case the accused persons were alive and were capable of defending themselves and protecting their interests and it was also not shown that the petitioner Mr. H.S. Chaudhary had any particular or special interest in the accused persons." 8. In Simranjit Singh Mann v. Union of India and another, 2 AIR 1993 SC 280, the Apex Court, held as under :- "Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legal validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which in law recognized as sufficient to permit any other person e.g. next friend, to move the Court on his behalf. It was also held that if a guardian or a next friend initiates proceedings for and on behalf of such a disabled aggrieved party, it is, in effect, proceedings initiated by the party aggrieved and not by a total stranger, who has no direct personal stake, in the out-come thereof. It was also held that if a guardian or a next friend initiates proceedings for and on behalf of such a disabled aggrieved party, it is, in effect, proceedings initiated by the party aggrieved and not by a total stranger, who has no direct personal stake, in the out-come thereof. In the above mentioned case, a leader of a political party approached the Supreme Court under Article 32 of the Constitution of India, challenging the conviction and sentence of the assassins of Gen. Vaidya. The two convicts were alive but did not file any appeal against the conviction and sentence. The Apex Court held that the petitioner, in that case, had locus standi to invoke the jurisdiction under Article 32 of the Constitution." 9. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal that it is only the accused person, against whom a criminal case has been registered or a criminal complaint, has been filed, can file a petition under Section 482 Cr.P.C. in the High Court, for quashing the complaint, the summoning order, and the subsequent proceedings, and no third person can fight a proxy war on his behalf under the garb of public interest litigant. The aggrieved party, which is affected by an order, is required to seek redress of its grievance, by questioning the legal validity or correctness of the same. It is another thing, if the aggrieved party, is suffering from some disability i.e. unless such party is a minor, or an insane person, or is suffering from any other disability, which, in law, is recognized as sufficient to permit any other person e.g. next friend, to move the Court, on his behalf. On behalf of minor, or insane person, a guardian or a next friend, initiates proceedings, so as to challenge the legality and validity of the order, passed against him, to seek redressal of the grievance, as under law such a person having disability, cannot be said to be competent, to file a petition, except through next friend or guardian. In the instant case, there is nothing on the record, that Amit Ahuja, petitioner, is suffering from any disability, recognized by the provisions, of law. He is an accused, in the aforesaid complaint. It is he, who is aggrieved against the complaint and the summoning order. In the instant case, there is nothing on the record, that Amit Ahuja, petitioner, is suffering from any disability, recognized by the provisions, of law. He is an accused, in the aforesaid complaint. It is he, who is aggrieved against the complaint and the summoning order. It is he, who can challenge the same, on any ground which may be available to him, under the provisions of law. If, in criminal cases, until and unless a person, is allowed to fight the proxy war, then the very purpose of criminal justice system, shall be defeated. In the event, the Courts, would be mushroomed, by public interest litigants. In this view of the matter, the present petition, under Section 482 Cr.P.C. filed by the petitioner, through his attorney, is not maintainable. On this ground alone, the same is liable to be dismissed. 10. The Counsel for petitioner, however, placed reliance on Ravi Gupta v. R.C. Tiwari, 2008(6) AD (Delhi) 655; Gurmit Kaur v. State of Punjab and another, Criminal Misc. No. 13472-M of 2000, decided on 6.9.02 by this Court, and Kuldeep Kaur @ Joginder Kaur v. State of Punjab, Criminal Misc. No. 28203-M of 2004. decided on 3.4.06 by this Court, in support of her contention that the petition under Section 482 Cr.P.C. is maintainable by the accused through attorney. In Ravi Guptas case (supra), the question that fell for consideration, was as to whether, a complaint, under Section 138 of the Negotiable Instruments Act, 1881, could be filed, by the complainant, through a power of attorney. The Delhi High Court, held that the complaint, could be filed, through a power of attorney, after obtaining the leave of the Court for pursuing the same, through a power of attorney. In Gurmit Kaurs case (supra) no doubt, a single Bench of this Court, held that, a petition under Section 482 Cr.P.C. for quashing the criminal proceedings, could be filed through an attorney. Reliance therein, was placed onRavulu Subha Rao and others v. Commissioner of Income Tax, Madras, 1956 (SC) 604. The careful perusal of the facts of Ravulu Subha Rao and others case (supra) clearly goes to show, that the question before their Lordships of the Apex Court that fell for determination, was with regard to the interpretation of Section 2 of the Power of Attorneys Act. The careful perusal of the facts of Ravulu Subha Rao and others case (supra) clearly goes to show, that the question before their Lordships of the Apex Court that fell for determination, was with regard to the interpretation of Section 2 of the Power of Attorneys Act. In Ravulu Subha Rao and others case (supra), no question fell for decision before the Apex Court as to whether, the accused/petitioner could file a petition, under Section 482 Cr.P.C. for quashing the criminal proceedings through attorney. Not only this, even the co-accused of Gurmit Kaur, accused/petitioner in Gurmit Kaurs case (supra) had already been acquitted/petitioner, was the same, as was against her co-accused, who were acquitted, after trial, no useful purpose, shall be served, by keeping the criminal proceedings alive, and, as such, the same were quashed. In Kuldip Kaur @ Joginder Kaurs case (supra) no question fell for decision, before a Single Bench, of this court, as to whether a petitions under Section 482 Cr.P.C. could be filed by an accused/petitioner, through an attorney. However the counsel, appearing for the petitioner, in Kuldip Kaur @ Joginder Kaurs case (supra) submitted that the petitioner was ready to return to India, and face prosecution. It was under these circumstances that this court in Kuldip Kaur @ Joginder Kaurs case (supra) directed that on the appearance of the petitioner, in the Court, within the stipulated time, she shall be admitted to bail, on furnishing the bail bound and the surety bond. In none of the aforesaid cases, relied upon by the counsel for the petitioner, any invariable principle of law, was laid down, that a petition under Section 482 Cr.P.C. for quashing the criminal proceedings, could be filed, through an attorney. These cases were decided, on the peculiar facts and circumstances, prevailing therein. No help, therefore, can be drawn by the Counsel for the petitioner from the aforesaid cases. Even otherwise, in view of the principle of law, laid down in Janata Dals and, Simranjit Singh Manns case (supra) decided by the Apex Court, any principle of law, to the contrary, if at all, laid down, in the cases, relied upon by the Counsel for the petitioner, shall not hold the field. In this view of the matter , the submission of the counsel for the petitioner, being without merit, must fail and the same stands rejected. 11. In this view of the matter , the submission of the counsel for the petitioner, being without merit, must fail and the same stands rejected. 11. For the reasons recorded above, Criminal Misc. No. M-1787 of 2009 being not maintainable, through attorney stands dismissed. Any observation, made in this order shall not be taken as an expression of mind, on merits of the case. 12. Registry is directed to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.