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Himachal Pradesh High Court · body

2010 DIGILAW 698 (HP)

CHARANJIT KAUR v. KULVINDER KAUR

2010-04-07

SURINDER SINGH

body2010
JUDGMENT Surinder Singh(Oral)-The instant petition has been preferred under Section 482 of the Code of Criminal Procedure for quashing criminal Complaint No. 66-II-07/2006, under Sections 323, 406, 498-A, 506 Indian Penal Code and Section 3 & 4 of Dowry Prohibition Act, pending before the learned Judicial magistrate 1st Class Court No. 1 , Una, H.P. 2. In short, facts giving rise to the present petition are that respondent No. 1 herein was married on 25.4.2004 to Harmit Singh son of petitioner No. 1 herein. According to the complainant/respondent No. 1, at the time of the marriage, her parents provided sufficient dowry mentioned in Annexure-A but her husband her mother-in-law petitioner Charanjit Kaur and Gurvinder Kaur her Jaithani, were not satisfied with the dowry articles so provided. They demanded money to repay the loan which they raised to purchase the plot for the construction of a house. Thus she took Rs. 1 lacs from her parents and paid to her husband, who in turn handed over it, to her mother-in-law Charanjit Kaur but even then they were not satisfied and told her that it was a very meagre. It was also alleged that her husband started humiliating her in the presence of the other family members, which caused mental torture and agony to her. It was also alleged that when she delivered the child, petitioner pressurized her to abort. The alleged cruelty intensified further. On 11.7.2004, husband of respondent No. 1 brought her to Una and left her in her parental house and left the place and told her that she should not return to the matrimonial home without bringing cash of Rs.4 lacs. Respondent No. 1 and her parents thought that a good sense will prevail on her husband and other family members and did not take any action. 3. On 27.2.2005, she delivered a male child. Respondent No. 1 alleged that her husband transferred his land in the name of his brother Harjeet Singh as he intended to go abroad. Parents of the respondent-complainant tried to reconcile the matter but it did not yield any result. Thus, respondent No. 1 filed a written complaint to the police in the month of April, 2005 precisely with the above allegations. Respondent No. 1 also approached the women Cell. Her husband and other family members on intervention of other relatives undertook not to torture her and pass any indecent remarks. Thus, respondent No. 1 filed a written complaint to the police in the month of April, 2005 precisely with the above allegations. Respondent No. 1 also approached the women Cell. Her husband and other family members on intervention of other relatives undertook not to torture her and pass any indecent remarks. It is alleged that even thereafter behavior of her husband and his family members did not improve. 4. On 2.1.2006 she is alleged to have been given merciless beatings by Harmit Singh her husband. Fearing danger to her life, she rang-up to her father. He visit her. Then she was taken to Una with the help of Police to the parental home with the help of the Police. She also averred in the complaint that her dowry articles, which were provided at the time of marriage, were not returned and were misused and misappropriated by the petitioners and petitioner Nos. 1 to 3 committed an offence under Section 406 Indian Penal Code. 5. Dayal Singh petitioner No. 4 is father of Smt. Gurvinder Kaur petitioner No. 1 wife of Harjit Singh, elder brother of Harmit Singh husband of respondent No. 1. The only allegation against him is that he was usually visiting in the family of her in-laws and family members of husband of respondent No. 1 used to taunt her at his behest. 6. The preliminary evidence was recorded by the learned trial Court. Neither the complainant in her statement nor any of her witnesses have substantiated the fact that petitioner Dayal Singh had been instigating the family members of her husband to pass taunts against her. 7. Secondly, the allegations with respect to the demand of dowry, i.e., Rs. 1 lacs and 4 lacs, as stated above, are alleged to have been made in the year 2004. The complaint was filed before the Police in the month of April, 2005. On the similar facts, second complaint was filed in the month of January, 2006 on the basis of which FIR was registered and the third complaint, i.e., the present one was filed before the Judicial Magistrate on 2.2.2006 impleading some additional facts. Vide order dated 9.3.2006, the petitioners along with her husband Harmit Singh were ordered to be summoned under Sections 323, 406, 498-A and 506 Indian Penal Code and also under Section 3 and 4 of the Dowry Prohibition Act. 8. Vide order dated 9.3.2006, the petitioners along with her husband Harmit Singh were ordered to be summoned under Sections 323, 406, 498-A and 506 Indian Penal Code and also under Section 3 and 4 of the Dowry Prohibition Act. 8. Section 8-A of the Dowry Prohibition Act 1968, as amended in the State of Himachal Pradesh reads as under:- “8-A. Cognizance of offences- No court shall take cognizance of any offence under this Act except on a police report under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence: Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act: Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District Magistrate, having jurisdiction in the area” [Emphasis supplied] 9. It is a private compliant filed by the wife. As per the amended provisions aforesaid, the Court could not have taken the cognizance of the offence after the period of one year from the date of commission of the offence. Further the second proviso added to this provision makes it clear that the cognizance is also barred in absence of the previous sanction of the District Magistrate having jurisdiction in the area. Further the cognizance of the offence under Section 3 and 4 of the Dowry Prohibition Act was taken by the Magistrate after one year, i.e., on 9.3.2006 when the offence was allegedly committed in the year 2004, that too, without obtaining previous sanction of the District Magistrate by the complainant. Thus, petitioners could not have been summoned as accused for the said offences under the Dowry Prohibition Act. Further, nothing incriminating came in the preliminary evidence against petitioner No. 4 Dayal Singh constituting the offence either under the Penal Code or the Dowry Prohibition Act. Therefore, in these circumstances, he could also not have been summoned as an accused. 10. Thus, petitioners could not have been summoned as accused for the said offences under the Dowry Prohibition Act. Further, nothing incriminating came in the preliminary evidence against petitioner No. 4 Dayal Singh constituting the offence either under the Penal Code or the Dowry Prohibition Act. Therefore, in these circumstances, he could also not have been summoned as an accused. 10. Accordingly, impugned order dated 9.3.2006, passed by the Judicial Magistrate 1st Class, Una is partly set aside to the extent that the Court was not competent to take cognizance of the offence under Section 3 and 4 of the Dowry Prohibition Act against the accused-petitioners for the above reasons therefore, the summoning of petitioners for these offences is set aside. There is also nothing on record to justify the summoning of petitioner Dayal Singh as an accused in this case as such this part of the order is also hereby quashed. The petition is partly allowed. The compliant survives against the petitioners No. 1 to 3 and Harmit Singh, prima facie under the other Sections of the Penal Code and not against Dayal Singh petitioner. 11. Since the criminal case with respect to the offence under Section 498-A against the petitioners No. 1 to 3 on police report is stated to be pending before the Judicial Magistrate 1st Class, Court No. 1 Una, therefore, this complaint be also heard and decided by the same Court, simultaneously with the Police challan. 12. Parties are herebydirected to be present before the learned trial Court on 3rd May, 2010. The complaint case stands transferred to the Court of Judicial Magistrate Court No. 1 Una, wherein the State case is pending.