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2012 DIGILAW 1695 (PNJ)

Ravinder Pandey v. Manju Pandey

2012-12-03

SABINA

body2012
Sabina, J. :— Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No. 11-2 dated 19.1.2011 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the Act' for short) and all the subsequent proceedings arising therefrom. The case of the complainant-respondent, in brief, is that her marriage was performed with petitioner No. 5 Sukesh Kumar Pandey on 7.3.2006. No child was born out of the said wedlock. Complainant-respondent resided in her matrimonial home till March 2008 with the accused and thereafter she was residing with her parents. Parents of the complainant-respondent had spent Rs. 6,00,000/- at the time of her marriage. Sukesh Kumar was settled in Canada and was earning 2554 dollars per month. Parents of Sukesh Kumar were working as pujaris in a temple in Canada and were getting good salary. The complainant-respondent had been harassed by the accused on account of insufficiency of dowry and she was not taken to Canada despite her repeated requests. However, complainant managed to get her passport on 20.12.2007 and thereafter, she was made to sign certain documents with regard to formalities for her Visa. In the year 2009, parents of Sukesh Kumar visited India but she was not taken back to the matrimonial home. Hence, the complaint under Section 12 of the Act was filed by the complainant-respondent. Learned counsel for the petitioners has submitted that the marriage of petitioner No. 5 was performed with the complainantrespondent in India on 7.3.2006. Thereafter, petitioners No. 3 to 5 left for Canadaon 14.4.2006. Passport of the complainantrespondent was prepared in December 2007. Thereafter, petitioner No. 5 moved papers for immigration of the respondent to Canada. However, vide letter dated 10.2.2009 (Annexure P-3), the case of respondent for immigration was declined after she was called for interview. Respondent had filed a petition for divorce on 31.5.2011 and the same had been decreed in ex parte on 1.9.2011. Petitioner No. 5 had never visited India after his marriage to the respondent, whereas, petitioners No. 3 and 4 had visited India for a short while in the year 2009. Hence, the continuation of criminal proceedings against the petitioners were nothing but an abuse of process of law. Learned counsel for the respondent, on the other hand, has submitted that a fraud had been played upon the respondent. Hence, the continuation of criminal proceedings against the petitioners were nothing but an abuse of process of law. Learned counsel for the respondent, on the other hand, has submitted that a fraud had been played upon the respondent. Respondent was a simple illiterate lady. Although her marriage was performed with petitioner No. 5 but she was never taken to Canada by him. Petitioners No. 1 and 2 had made the life of complainantrespondent miserable by treating her as a maid. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr. P. C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant/respondent No. 2, 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 a 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 no 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 an order of Magistrate as contemplated under Section 155(2) of the Code. (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 an order of 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. ” In the present case, the facts are not much in dispute. Admittedly, marriage of the complainant-respondent with petitioner No. 5 was performed on 7.3.2006. Thereafter, petitioners No. 3 to 5 left for Canada on 14.4.2006. The passport of respondent was prepared in December 2007. Thus, petitioner No. 5 could not have moved the papers for immigration of the complainant to Canada without her passport. Thereafter, petitioner No. 5 moved the papers for immigration of the respondent in the year 2008. Respondent was called for an interview by the Canadian Embassy. Immigration/Visa was declined to the respondent vide Annexure P-3 by the Canadian Embassy. Thus, petitioner No. 5 could not have moved the papers for immigration of the complainant to Canada without her passport. Thereafter, petitioner No. 5 moved the papers for immigration of the respondent in the year 2008. Respondent was called for an interview by the Canadian Embassy. Immigration/Visa was declined to the respondent vide Annexure P-3 by the Canadian Embassy. A perusal of Annexure P-3 reveals that the case of the respondent was declined on the grounds that she had failed to disclose the authorities as to what happened to the money in her own bank account and further she could not tell where her husband was and what her brother-in-law was doing. It was further observed that although the complainant had established the factum of legal marriage between her and the sponsorer but the marriage had taken place in the year 2006, whereas, she got the passport only in December, 2007. Her sponsorship was made in July, 2008. No credible reasons had been given for this delay. Further the sponsorer had never visited India after marriage. Further the proof of communication between the sponsorer and the complainant had not been submitted in the application or at the interview. Petitioner No. 5 cannot be blamed for rejection of the immigration papers of the respondent. Rather in the present case, respondent herself had applied for her passport after a long delay and had failed to give details qua petitioner No. 5 in her interview. Petitioners No. 3 to 5 had left for Canada after marriage and hence, there is no occasion that they might have raised any demand of dowry or harassed the complainant on account of insufficiency of dowry. The complaint in question has been moved in January, 2011. Admittedly, thereafter, the complainant had moved a divorce petition and the same was decreed on 1.9.2011 in ex parte. It appears that the complaint was merely lodged against the petitioners because the respondent could not go to Canada. Petitioner No. 5 has not visited India after April, 2006, whereas, petitioners No. 3 and 4 had visited India only for a short while in the year 2009. Hence, in the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. Hence, in the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. Criminal complaint No. 11-2 dated 19.1.2011 under Section 12 of the Act and all the subsequent proceedings arising therefrom are quashed.