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2010 DIGILAW 694 (PNJ)

Sanjeev v. Sher Singh

2010-01-28

SABINA

body2010
Judgment SABINA, J. 1. Petitioners have filed this petition under Sec.482 of the Code of Criminal Procedure for quashing of criminal complaint (Annexure P-1) titled sher Singh vs. Sanjeev and others dated 14.6.2003 pending in the Court of sh. J. S. Sidhu, Judicial Magistrate, Ist Class, Karnal filed under Sec.406 of the Indian Penal Code (ipc for short) and the summoning orders (Annexure P-2) issued in consequence thereto. 2. Vide the impugned order, the petitioners were ordered to be summoned to face the trial under section 406 IPC on a complaint moved by father of deceased Kiran Bala, who was married with Sanjeev-petitioner No.1 on 14.4.2000. Kiran Bala, however, died an unnatural death. FIR No.267 dated 28.10.2002 was registered against the petitioners and Sanjana Rani under Section under Sec.304-B/34 IPC. The petitioners as well as Sanjana Rani were convicted and sentenced under Section 304-B/34 IPC by the Additional Sessions Judge, Patiala. In appeal filed by the petitioners, this Court, vide judgment dated 21.1.2009 in Criminal Appeal no.165-DB of 2006, maintained the conviction of petitioner No.1- Sanjeev under section 304-B IPC and his sentence was reduced from life imprisonment to 14 years of rigorous imprisonment. So far as petitioners No.2 and 3 are concerned they and Sanjana Rani were acquitted of the charge framed against them. Petitioner No.1 is presently undergoing his sentence in the said case. Learned counsel for the petitioners has submitted that a child aged about nine years was being looked after by the petitioners. The maternal grand mother had filed a petition for custody of the child but the same had been dismissed as withdrawn vide order dated 28.10.2004. The respondent could not claim the dowry articles/istridhan of his daughter because after her death, her child is her only legal heir to the property and hence the said articles have to vest in the child being legal heir of deceased Kiran Bala. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Rakesh Kumar alias Naresh Kumar vs. Prem Lal 1997 (4)RCR (Criminal) 258, wherein, in para 8, it was held as under:- "with respect of offences punishable under Sections 406/ 420 IPC, the sole contention asserted in the complaint is that certain dowry articles were entrusted which have been misappropriated and the petitioners had cheated the respondent by inducing him to deliver the articles of dowry. For purposes of the present petition to go into the question, if ingredients of Sec.406 ipc could be attracted or not. This is because of sub-Section (3) of Sec.6 of the Dowry Prohibition Act, 1961 . It reads as under:- "6 (3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being: provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall: (a) if she has no children, be transferred to her parents; or (b) if she has children be transferred to such children and pending such transfer, be held in trust for such children." 3. It is observed from aforesaid that even if it be assumed that there was some property to which the deceased was entitled, then her parents would not be entitled to claim the same. She had left behind a child who is with the petitioners. The right if any is that of the infant child and not of the respondent. Consequently, it would be an abuse of the process of the Court to permit the complaint under Sec.406 IPC. Learned counsel for the petitioners has further placed reliance on the decision of this Court in Kuljit Singh vs. Jasbir Singh 2002 (4) RCR (Criminal) 707, wherein, in para Nos.9 and 10, it was held as under:- "9. This Section embodies the ancient maxim "nemo debet bis vexani pro eadem causa (no person should be twice disturbed for the same cause). One of the principle of this Section is that where an accused can be held at one trial for several offences and has not been so tried for all the offences but only for a few he should not be put again in jeopardy for the offences for which he could have been tried at the time but had not been tried. From the bare reading of the aforesaid Section, it is clear that if a person, who has once been tried by a Court of competent jurisdiction for an offence and he has been convicted or acquitted for such an offence, shall not be tried again for the same offence or for any other offences, for which a different charge from the one made against him might have been made under Sec.221 (1) of the Code or for which he might have been convicted under sub-section (2) thereof. Sub Section (1) of Sec.300 of the Code consists of two limbs. The first limb deals with the case of a person, who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence. Such person shall not be liable to tried again for the same offence while such conviction or acquittal remains in force. The second limb of the sub- section deals with the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Sec.221 or for which he might have been convicted under sub-section (2) thereto. The case of the petitioner is covered under second limb of this sub-section. Though in the police case, the petitioner and his parents were charged for offences punishable under Sections 302/ 304-B/34 IPC and they were not charged for offences punishable under Sections 406/ 498-A IPC, but on the basis of the facts alleged in the FIR, the challan and the evidence came before the Court during the trial, they could have been charged under these offences in exercise of powers given under Sec.221 (1) of the Code. But neither the complainant/prosecution nor the Court called upon the petitioner and his parents to face trial for offences under Sections 406/ 498-A IPC though the allegations constituting these offences were very much available. The petitioner has been convicted and his parents have been acquitted in the earlier trial vide judgment dated 6.8.1998. In view of this fact, the petitioner and his parents cannot be tried again on the basis of the present complaint. The petitioner has been convicted and his parents have been acquitted in the earlier trial vide judgment dated 6.8.1998. In view of this fact, the petitioner and his parents cannot be tried again on the basis of the present complaint. This view of mine is supported by a decision of this Court in Narinder Singh V/s. State of Punjab, 1985 (2) Recent Criminal Reports 152 where an accused tried and acquitted of offences under Sec.5 (2) of the prevention of Corruption Act then such accused could not be retried for offences under Sec.147/ 158/ 224/ 225 IPC. Thus, in view of Sec.300 (1) of the Code, the present complaint filed by respondent No.1, brother of the deceased, is liable to be quashed, as the petitioner and his parents cannot be tried again for an offence under Sections 406/ 498-A IPC on the allegations made therein. 10. I have also considered the other submissions made by learned counsel for the petitioner and find force in the same. I have carefully perused the contents of the complaint. The only allegation made against the petitioner is that the dowry articles and the articles of Istri Dhan entrusted to the parents of the petitioner. No specific date and time has been mentioned in the complaint as to when these articles were demanded by Jaskirat Kaur. The allegations of entrustment as well as of demand of dowry articles, which were material facts to constitute an offence under Sec.406 IPC, are missing in the complaint. Even otherwise, it is not clear as to how and in which capacity and under which authority respondent no.1, who is brother of the deceased wife, can made demand of the articles of istri Dhan. After the death of a wife her estate is inherited by her children, but the same cannot be inherited by her brother as per the provisions of Hindu succession Act. In view of this fact also, the complaint filed by respondent no.1 is not maintainable for offences under Sections 406/ 498-A IPC and the same is liable to be quashed." 4. Thus, in the present case, the dowry articles/ Istridhan given by the respondent-complainant to the petitioners at the time of marriage of his daughter became the property of Kiran Bala. Kiran Bala is survived by her son, who is living with the petitioners. Thus, in the present case, the dowry articles/ Istridhan given by the respondent-complainant to the petitioners at the time of marriage of his daughter became the property of Kiran Bala. Kiran Bala is survived by her son, who is living with the petitioners. In these circumstances, the son of Kiran Bala will be entitled to inherit the property belonging to his mother. Moreover, the petitioners have already faced the trial under Sec.304-B IPC and they cannot be now again put to trial for an offence under Sec.406 IPC. 5. Accordingly, the present petition is allowed. Criminal complaint (Annexure P-1) titled Sher Singh vs. Sanjeev and others dated 14.6.2003 pending in the Court of Sh. J. S. Sidhu, Judicial Magistrate, Ist Class, Karnal filed under Sec.406 IPC and the summoning orders (Annexure P-2) issued in consequence thereto are quashed.