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2015 DIGILAW 552 (PNJ)

Rashda v. State of Punjab

2015-04-01

RAJ MOHAN SINGH

body2015
JUDGMENT Mr. Raj Mohan Singh.: - CRM No.60005 of 2012 1. Prayer in this application is for condonation of delay of 1299 days in filing the review application. The delay in question is sought to be condoned on the ground that review of order dated 13.02.2009 is being filed in pursuance of the observations made by Apex Court in its order dated 23.02.2012. 2. The applicant-respondent No.2 alleged that after the decision of SLP, counsel engaged by them did not inform regarding disposal of the case. The applicant engaged new counsel at Jalandhar who appeared before trial Court on 12.09.2012, and informed the applicant that accused had placed on record a copy of the order passed by the Supreme Court in Special Leave Petition. Accordingly an application for obtaining certified copy of the order passed in SLP was moved. The same was prepared on 01.10.2012 and ultimately delivered on 03.10.2012. Resultantly criminal miscellaneous for review/recalling of order dated 13.02.2009 passed in main case i.e. CRM-M No.4285 of 2008 has been filed. 3. Learned counsel for the applicant states that Hon’ble Supreme Court while dealing with the SLP in question, observed on the contention of present applicant that if such a petition is filed by them within 30 days of the order, then the same shall not be dismissed on the ground of delay and may be heard on merits in accordance with law. 4. The applicant seeks indulgence of this Court as liberty was given to the applicant by the Hon’ble Supreme Court to file review, challenging the post-script directions given in the impugned order. 5. The delay has been attributed due to want of necessary intimation from the counsel engaged in SLP and particularly in view of the fact that import of order dated 23.2.2012 passed by the Hon’ble Supreme Court was that the review should be decided by this Court on merits if the same is filed within 30 days. 6. Learned counsel for the non-applicant/petitioners has opposed the delay by arguing that the delay is intentional and same should not be condoned beyond the period of 30 days as has been observed by the Hon’ble Supreme Court. 7. Notice of this application was issued. The non-applicants also appeared and the case was matured for arguments. 8. 6. Learned counsel for the non-applicant/petitioners has opposed the delay by arguing that the delay is intentional and same should not be condoned beyond the period of 30 days as has been observed by the Hon’ble Supreme Court. 7. Notice of this application was issued. The non-applicants also appeared and the case was matured for arguments. 8. Learned counsel for the applicant/respondent No.2 submits that the merit of the case is not liable to be thrown at the very threshold of technicality, like the limitation, particularly when there was no mens rea on the part of applicant to file the review application late. The Hon’ble Supreme Court has laid down guidelines in AIR 1987, Supreme Court 1351 that the merit of the case should not be sacrificed on the altar of technicality. 9. Be that as it may, one thing is apparent that contention of learned counsel for the petitioners regarding debatable issue with regard to maintainability of review of judgment/order in terms of Section 362 read with 482 Cr.P.C has to be treated as non-existent in view of direction to decide the case on merits in case it is filed within specified time. Delay is sought to be explained. 10. In view of the above, this Court feels that once the import of the order of Hon’ble Supreme Court in the aforesaid context is for decision on merits in case it is filed within 30 days, therefore, in order to do substantial justice between the parties, it will be in consonance with equity and fair play that the delay in filing the present review application be condoned. 11. Accordingly delay of 1299 days in filing review application is hereby condoned. CRM stands disposed of. CRM No.60004 of 2012 12. In this application under Section 482 Cr.P.C., applicant seek review/recalling of order dated 13.02.2009 passed by this Court in main petition bearing CRM-M No.4285 of 2008. 13. In main petition filed under Section 482 Cr.P.C., nonapplicant/ petitioners seek quashing of FIR No.159 dated 31.10.2007 for the offences under Sections 406, 498-A IPC along with entire subsequent proceedings. 14. This Court vide order dated 13.02.2009 dismissed the petition with liberty to the petitioners to take all the points available to them before trial Court at an appropriate stage. In main petition filed under Section 482 Cr.P.C., nonapplicant/ petitioners seek quashing of FIR No.159 dated 31.10.2007 for the offences under Sections 406, 498-A IPC along with entire subsequent proceedings. 14. This Court vide order dated 13.02.2009 dismissed the petition with liberty to the petitioners to take all the points available to them before trial Court at an appropriate stage. While dismissing the petition, this Court also observed in concluding para of the order as under: “Before parting, it worth noticing that in the complaint (Annexure P-1), made by respondent No.2 to the Senior Superintendent of Police, Jalandhar, on the basis of which the instant F.I.R was registered, the allegations, inter alia, are that the parents and relatives of the complainant gave sufficient dowry i.e. golden ornaments, clothes and cash at the time of marriage; that for the departure of ‘Barat’ Rs.60,00,000/- were given; and that husband of the complainant and his relatives demanded at least 1.50 thousand Dollars from the complainant and 40 thousand Dollars for the petitioners and this money was sent to India. Such assertions clearly attract the provisions of Dowry Prohibition Act, 1961. Therefore, the police will register a separate F.I.R. keeping in view these allegations and investigate in respect of payments of such huge amounts by the complainant and her family to the accused as dowry.” 15. Against the aforesaid order respondent No.2/applicant filed SLP No.4862 of 2009 titled as Rina Gill v. State of Punjab and others and the Hon’ble Supreme Court vide order dated 23.02.2012 observed in the following manner:- “After having heard learned counsel for the parties and after perusal of the record, we find that the Post Script directions of learned Single Judge dated 13.02.2009 were passed in Criminal Miscellaneous No.4285-M of 2008 preferred by Respondent Nos.2 and 3 herein, where petitioner was arrayed as Respondent No.2. Learned counsel for the Petitioner submitted that while dismissing the Petition under Section 482, Cr.P.C. filed by Respondent Nos.2 and 3 herein, the Post Script directions have been given, on the strength of which F.I.R. has been registered against the Petitioner on 19.09.2009 under Section 3 of the Dowry Prohibition Act, 1961. Learned counsel for the petitioner further submitted that there was absolutely no occasion to give such direction to the Police and that too without giving an opportunity of hearing to the Petitioner. Learned counsel for the petitioner further submitted that there was absolutely no occasion to give such direction to the Police and that too without giving an opportunity of hearing to the Petitioner. If that be so, Petitioner is permitted to withdraw this petition with liberty to file review before the learned Single Judge challenging only the directions contained in Post Script in the impugned order. If such a petition is filed by the Petitioner within a period of 30 days hereof, the same shall not be dismissed on the ground of delay, but may be heard on merits and decided in accordance with law. The special leave petition is accordingly dismissed as withdrawn.” 16. The respondent No.2 assailed the order of High Court in respect of post-script directions on the basis of which FIR was registered against him on 19.09.2009 under Section 3 of Dowry Prohibition Act, 1961. 17. The respondent No.2/applicant submitted before the Apex Court that there was no occasion to give such directions to the Police without giving any opportunity of hearing to him. In SLP, the Hon’ble Supreme Court permitted the applicant/respondent No.2 to withdraw the petition with a liberty to file review before this Court, challenging the post-script directions in the impugned order. 18. While parting with the case, the Apex Court observed that if such a petition is filed within 30 days, the same would not be dismissed on the ground of delay but be heard on merits in accordance with law. 19. Learned counsel for the applicant/respondent No.2 submits that the post-script directions are totally uncalled for in view of the fact that applicant had no opportunity to rebut the same and there was no forum available at that time to expouse the defence on the part of applicant. 20. As against this, learned counsel for the nonapplicant/ petitioners in the main petition submits that in view of Section 482/362 Cr.P.C., review of order is not permissible under the Code, even under inherent jurisdiction of this Court under Section 482 Cr.P.C. The filing of such miscellaneous application after dismissal of the main case is totally unwarranted. On this premise learned counsel cites Hari Singh Mann v. Harbhajan Singh Bajwa and Ors, AIR 2001 SC 43 (1). 21. On this premise learned counsel cites Hari Singh Mann v. Harbhajan Singh Bajwa and Ors, AIR 2001 SC 43 (1). 21. Learned counsel further states that there is no provision under the Code for the High Court to review its own order either passed while exercising appellate, revisional or original jurisdiction. Section 362 of the Code mandates that after signing of the order/judgment, no Court shall alter or review the same except clerical or arithmetical errors. He further supported the order dated 13.02.2009 passed by this Court on the ground that directions were issued only after ascertaining the facts with regard to the source from where the huge amount was allegedly collected and also in view of fact that the husband and his relatives may demand in dollars and the money was sent to India. Learned counsel supplemented his arguments by pleading that the facts are so glaring that attracts the culpability in terms of provisions of Dowry Prohibition Act, 1961. 22. Learned counsel for the applicant/respondent No.2 in review application relies upon D. Venkatasubramaniam & ors. v. M.K. Mohan Krishnamachari & Anr., 2009(4) RCR (Criminal) 318 to contend that the High Court cannot direct the Police to conduct investigation in a particular form as it would amount to transgressing in Police jurisdiction. 23. After hearing both the sides and after taking into consideration the plea and rival plea raised by them, this Court is of the opinion that the alleged culpability in terms of provisions of Dowry Prohibition Act, 1961 could not have been gone into by this Court while dismissing the quashing petition filed by petitioner/accused. The aforesaid course ultimately entailed in registration of case against the complainant of FIR No.156 dated 31.10.2007. The competent person should have invoked jurisdiction of competent Court in terms of Section 156(3) Cr.P.C. or he should have filed criminal complaint in that regard. 24. The order for registration of criminal case against the complainant-party of FIR No.159 dated 31.10.2007 under Sections 406, 498-A IPC, Police Station Division No.7, Jalandhar in the petition under Section 482 Cr.P.C., for quashing of the same would result in granting no opportunity of hearing to them. Registration of a criminal case against a person gives rise many repercussions. 25. The order for registration of criminal case against the complainant-party of FIR No.159 dated 31.10.2007 under Sections 406, 498-A IPC, Police Station Division No.7, Jalandhar in the petition under Section 482 Cr.P.C., for quashing of the same would result in granting no opportunity of hearing to them. Registration of a criminal case against a person gives rise many repercussions. 25. The direction to register a case and investigate a case in a particular manner are not to be exercised under inherent jurisdiction of the High Court in view of Sakiri Vasu v. State of U.P and ors., [2007(5) Law Herald (SC) 3910] : 2008 (2) SCC 409 and in view of D. Venkatasubramaniam & Ors. (supra). 26. In view of aforesaid this Court is of the opinion that the observations made in order dated 13.02.2009 to the extent of ordering lodging of FIR against the complainant-party is liable to expunged in the order. 27. Consequently, the direction for registration of case against the respondent No.2 in the order dated 13.02.2009 passed by this Court stands expunged. Consequential action to follow. Ordered accordingly. ---------0.B.S.0------------