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2014 DIGILAW 845 (HP)

Madan Lal v. State of Himachal Pradesh

2014-07-04

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J. (Oral) This petition, which has been filed for quashing of order Annexure P-2 and further proceedings initiated consequent upon this order against the accused-petitioners, is listed today for presence of parties on the joint request of learned Counsel representing them. Even the 1st petitioner was present also in person on the last date. The victim, who is 3rd respondent, is present, however, the accused-petitioners are absent. Even learned Counsel representing them is also not present nor any local Counsel has come forward to put in appearance when the case was called thrice. On the other hand, the statement of 3rd respondent which has been recorded separately, reveals that her torturing and maltreatment at the hands of accused-petitioners is not over as she is still being tortured and maltreated in the matrimonial home and even they refused to maintain her. Therefore, irrespective of her children, who are studying in Balachaur, the place of her in-laws, she has to take shelter in the house of her parents at village Chandrot, Tehsil Baroh, District Kangra and residing there for the last one month. In such a situation there seems to be no possibility of amicable settlement and rather the accused-petitioners seem to be interested in delaying the proceedings in the case against them because it is for this reason neither they nor learned Counsel representing them are present. I, therefore, proceed to dispose of this petition on the basis of the available record and with the assistance of learned Additional Advocate General and also learned Counsel representing the 3rd respondent. 2. Third respondent is married on 6.5.2004 to Shammi Kapoor, who is son of accused-petitioners Madan Lal and Balbir Kaur in this petition. A son and a daughter have been born to them out of this wedlock and they are school going. On allegedly being maltreated and tortured by the accused-petitioners and their co- accused in the matrimonial home, the 3rd respondent made an application under Section 156 (3) of the Code of Criminal Procedure in the Court of learned Additional Chief Judicial Magistrate, Kangra. Learned Magistrate on going through the contents of the application and also oral as well as documentary evidence produced before her and after being satisfied about the commission of cognizable offence deemed it appropriate to send the complaint to the local police for investigation in accordance with law. Learned Magistrate on going through the contents of the application and also oral as well as documentary evidence produced before her and after being satisfied about the commission of cognizable offence deemed it appropriate to send the complaint to the local police for investigation in accordance with law. Consequently, the impugned order Annexure P-2 came to be passed in the said application. The police of Police Station, Kangra has conducted the investigation and filed the report under Section 173 of the Code of Criminal Procedure in the Court of learned Judicial Magistrate 1st Class (1), Kangra on March 5, 2013. 3. The case against the accused-petitioners, therefore, is pending disposal in the said Court, however, on filing of this petition and by virtue of passing interim order in this petition, further proceedings in the said case stand stayed. The only ground pressed into service in the petition to quash the impugned order Annexure P-2 and also the consequential proceedings is that since the complainant failed to approach the police first, therefore, the application she filed under Section 156 (3) of the Code of Criminal Procedure should not have been entertained. 4. It is seen that the impugned order Annexure P-2 has been passed by learned Magistrate on 29.12.2012. Pursuant to the order so passed even the police also conducted the investigation and filed the report under Section 173 of the Code of Criminal Procedure on 5.3.2013. It is much after, i.e., 3.10.2013 this petition has been filed for quashing the order Annexure P-2 and also the consequential proceedings. The ground raised in the petition with the passage of time is not available to the accused-petitioners for the reason that the stage of Section 156 (3) of the Code of Criminal Procedure was over with the passing of impugned order Annexure P-2. At the most they could have challenged this order during the course of investigation and would not have waited for filing of this petition till the completion of the investigation and even filing of the final report against them in the Court. Therefore, in my considered opinion, this petition being the abuse of process of law has been filed merely for rejection intentionally to delay the proceedings in the criminal case pending against the accused-petitioners. Otherwise also, as per the settled legal principles criminal proceedings, should not be throttled down at the very threshold. Therefore, in my considered opinion, this petition being the abuse of process of law has been filed merely for rejection intentionally to delay the proceedings in the criminal case pending against the accused-petitioners. Otherwise also, as per the settled legal principles criminal proceedings, should not be throttled down at the very threshold. The same can only be quashed in rare cases and under the following circumstances: (1) where the allegations made in 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.” 5. Having regard to the record available at this stage and also in the light of what has been stated hereinabove, I find no merit in this petition and the same is hereby dismissed. The interim order shall stand vacated. All pending application(s), if any shall also stand dismissed. Learned trial Magistrate to proceed further in the case expeditiously and dispose it of at the earliest possible time in accordance with law. An authenticated copy be sent to learned trial Magistrate for record.