Rakesh Kumar And Others vs State Of Punjab And Another

Criminal Misc. No.M-18404 of 2008 1 In the High Court of Punjab and Haryana at
Chandigarh Criminal Misc. No.M-18404 of 2008

Date of decision: 22.1.2009

Rakesh Kumar and others

......Petitioners

Versus

State of Punjab and another

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present: Mr.P.S.Hundal, Sr.Advocate with Mr.N.S.Sondhi, Advocate,

for the petitioners.

Mr.Aman Deep Singh Rai, AAG, Punjab.

Mr.Vishal Aggarwal, Advocate,

for respondent No.2.

****

SABINA, J.

The petitioners have filed this petition under Section 482 of the
Code of Criminal Procedure ("Cr.P.C." for short) seeking quashing of order on
framing of charge dated 30.4.2007 (Annexure P-7), charge sheet dated 30.4.2007
(Annexure P-8) passed by the learned Judicial Magistrate, Ist Class, Ludhiana
order of the learned Additional Sessions Judge (Fast Track Court), Ludhiana
dated 4.6.2008 (Annexure P-9) dismissing the revision petition against framing
of charge and all subsequent proceedings. Petitioner Nos. 1 and 4 are brothers
of the husband of the complainant, whereas, respondent No.3 is the un-married
sister of Criminal Misc. No.M-18404 of 2008 2 the husband of the complainant.
Petitioner Nos. 2 and 5 are the wives of petitioner Nos. 1 and 4 respectively.
The case of the complainant, as set out in the First Information Report, is
reproduced as under:- "Application for registration of a case under Section
406, 498-A, 120-B and Protection of Woman from Domestic Violence Act, 2005
against 1. Mukesh Kumar s/o Sh.Ved Parkash Marwaha 2. Asha Rani wife of late
Sh.Ved Parkash Marwaha, 3. Rajesh Kumar Marwaha son of late Sh.Ved Parkash
Marwaha, 4. Simran wife of Rajesh Kumar Marwaha, 5. Rakesh Kumar son of late
Sh. Ved Parkash Marwaha, 6. Meenu wife of Sh.Rakesh Kumar, 7., Poonam daughter
of late Sh.Ved Parkash Marwaha all residents of 191, Kidwai Nagar, Near Shiv
Shakti Mandir, Ludhiana, 8. Neena wife of Sh.Anil Kumar resident of Denmark.
Sir, 1. That the marriage of the applicant was solemnized on 11.2.2004 with the
accused No.1 according to Hindu rites and ceremonies. This marriage was
solemnized by the mother of the applicant with the help of sister of the
applicant and spent about Rs.5,00,000/- on the marriage of the applicant. The
mother of the applicant gave items No. 1 to 6 to my husband namely Mukesh
Kumar, items No.7 to 9 to my mother-in-law namely Asha Rani, items No. 10 to 18
to Criminal Misc. No.M-18404 of 2008 3 my brother-in-law namely Rajesh Kumar,
items No.19 to 23 to Simran my sister-in-law (Jethani), items No.24 to 26 to
my sister-in-law namely Meenu (Jethani) and items No.27 to 34 to Rakesh Kumar
my brother-in-law (my husband's brother) and items No. 35 to 40 to my elder
sister-in-law namely Poonam as per Anexure 'A' and the cash receipts and Bills
of the items were handed over to the family members of the accused No.1 and
these items were given to the accused in presence of Kirpal Singh son of Amar
Singh cousin of the applicant and Rajinder Singh son of Sh.Balwant Singh cousin
of the applicant and these items were given to the above said accused with the
assurance that these items will be handed over to the applicant after reaching
the applicant to her in-laws house. But all the accused dishonestly
misappropriated all the items given to the applicant and converted the same
for their own use.

2. That all the accused were not satisfied with the dowry articles
given to accused at the time of the marriage. They started taunting,
humiliating the applicant on one excuse or the other. The accused No.1 and his
family members started demanding Santro Car from the mother of the applicant.
The applicant showed her inability to fulfil the demand of Santro Car because
her Criminal Misc. No.M-18404 of 2008 4 mother had already spent a huge amount
on the marriage of the applicant. Thereafter, all the accused started
harassing the complainant only to fulfil their demand of Santro Car. In the
meantime the complainant became pregnant during the month of June, 2004. But
the applicant did not disclose her mother and sister about the maltreatment by
the accused with the hope that after the birth of child, the accused may
change their attitude towards the complainant. But the complainant was
suffering from Ruptured Ectopil Pregnancy and was operated on 19.7.2004.
Thereafter, all the accused became so arrogant towards the complainant. They
started harassing the complainant. The information regarding the operation was
also sent given to accused No.8 Neena on telephone by the husband of the
complainant. She also used abusive language against the complainant and told my
husband to take divorce from me and instigated my husband to remarriage. The
accused separated the complainant from the in-laws house with the excuse that
there is no sufficient space in the in-laws house and the dowry articles give
by the mother of the complainant were retained in the in-laws house and we
were given some furniture, utensils etc. Criminal Misc. No.M-18404 of 2008 5
thereafter, in the month of December, 2005 the complainant again became
pregnant and was again suffering from Ruptured Ectopil Pregnancy and was
operated on 16.12.2005. After the operation of the complainant the behaviour of
all the accused was totally changed towards the complainant. They started
using derogatory language against the complainant by calling the complainant
"Baanj" by the accused 1,2,3 and 4. Even the respondent No.8 also used these
words against the complainant on telephone from Denmark and instigated my
husband to divorce me and said that she will arrange his second marriage at
Denmark. In this way all the accused mentally tortured the complainant on
account of non bringing of Santro car and by calling her 'Baanj". On 18.6.2006,
when the complainant was at her house the respondents No.1 to 7 namely Mukesh
Kumar, Asha Rani wife of late Sh.Ved Parkash Marwaha, Rajesh Kumar Marwaha,
Simran, Rakesh Kumar, Meenu, Poonam came there and accused No.1, 3 and 5 along
with other accused started beating the complainant under the influence of
liquor. The accused No.2 mother of my husband instigated all the accused to
beat the complainant. Ultimately the complainant was turned out of the house
Criminal Misc. No.M-18404 of 2008 6 in three clothes on 22.6.2006. The items
given by the mother of the applicant on different occasions as mentioned in
Annexure "A" and "B" have also been retained by the accused. Similarly the
items given by the in-laws of the applicant as shown in the Annexure "C" have
not been handed over to the applicant. It is pertinent to mention here that the
accused No.1 moved an application before the S.P.City (1), Ludhiana on a
flimsy ground only to save himself and his family members from the clutches of
law. Thereafter, the complainant and other family members requested the
accused to rehabilitate the complainant, but he refused to rehabilitate the
complainant.

3. That before the Panchayat consisting of Rajinder Singh s/o
Sh.Balwant Singh, Kirpal Singh son of Sh.Amar Singh, Raju c/o Sewak Tent House
and other respectables of the locality the accused and his family members
repeated the same demand of Santro Car and when the accused refused to
rehabilitate the complainant the Panchayat members and the complainant
demanded her ISTRI DHAN from all the accused, but they refused to return the
same to the complainant. So all the accused have committed breach of trust by
refusing to return the ISTRI DHAN. It Criminal Misc. No.M-18404 of 2008 7 is ,
therefore, prayed that a case under Section 406, 498-A, 120-B IPC and
Protection of Women from Domestic Violence Act, 2005 may kindly be registered
and items given in Annexures "A" and "B" be recovered from the accused and
accused be punished accordinglyl."

Learned counsel for the petitioners has submitted that there were
no specific allegations against the petitioners in the FIR. The petitioners had
merely been roped in this case being relatives of the husband of the
complainant.

Learned counsel for the complainant, on the other hand, has
submitted that all the accused including the petitioners had been harassing the
complainant and had misappropriated the dowry articles. He has further
submitted that the order, vide which the charge was framed, had been challenged
by the petitioners before the Additional Sessions Judge, Ludhiana by way of a
revision petition and hence, second revision petition under Section 482 Cr.P.C.
was not maintainable. In this regard, he has placed reliance on Darshan Singh
vs. State of Punjab, 1996 (1) RCR (Criminal) 464, Rajinder Prasad vs. Bashir,
2001(4) RCR (Criminal) 312 and Deepti vs. Akhil Raj, 1995 (3) RCR (Criminal)
638.

It has been held by the Apex Court in Krishanan vs. Krishnaveni,
AIR 1997 SC 987, in para 9 of its judgment, as under:- "The inherent power of
the High Court is not one Criminal Misc. No.M-18404 of 2008 8 conferred by the
Code but one which the High Court already has in it and which is preserved by
the Code. The object of Section 397(3) is to put a bar on simultaneous
revisional applications to the High Court and the Court of Sessions so as to
prevent unnecessary delay and multiplicity of proceedings . As seen, under sub
section (3) of Section 397, revisional jurisdiction can be invoked by "any
person" but the Code has not defined the word 'person'. However, under Section
11 of the IPC, 'person' includes any Company or Association or body of
persons, whether incorporated or not. The word 'person' would, therefore
include not only the natural person but also juridical person in whatever from
designated and whether incorporated or not. By implication, the State stands
excluded from the purview of the word 'person' for the purpose of limiting its
right to avail the revisional power of the High Court under Section 397 (1) of
the Code for the reason that the State, being the prosecutor of the offender
is enjoined to conduct prosecution on behalf of the society and to take such
remedial steps as it deems proper. The object behind criminal law is to
maintain law, public order, stability as also peace and progress in the
society. Generally, private complaints under Section 202 of the Code are laid
in respect of non- Criminal Misc. No.M-18404 of 2008 9 cognizable offences or
when it is found that police has failed to perform its duty under Chapter XII
of the Code or to report as mistake of fact. In view of the principle laid
down in the maxim Ex debito justitiae, i.e. in accordance with the requirements
of justice, the prohibition under Section 397 (3) on revisional power given to
the High Court would not apply when the State seeks revision under Section
401. So the State is not prohibited to avail the revisional power of the High
Court under Section 397 (1) read with Section 401 of the Code."

The said view has been followed by the Hon'ble Supreme Court in
later decisions also.

So far as the decision in Darshan Singh's case (supra), relied
upon by the learned counsel for the complainant, is concerned, there it was
held that the second revision petition under Section 482 Cr.P.C. was not
maintainable as disputed questions of fact were involved in the case. In
Deepti's case (Supra), Hon'ble Supreme Court held that the High Court Could not
interfere simply on the basis of the statement of the State Govt as there was
sufficient material on record to frame charge against the accused under Section
498-A IPC. In Rajinder Prasad's case (supra), the order, whereby the
cognizance taken by the Magistrate was set aside by the High Court, was
challenged in the Apex Court and it was held that since the revision petition
filed under Section 397 Cr.P.C. had been rejected by Criminal Misc. No.M-18404
of 2008 10 the High Court then the aggrieved party had no right to file a
petition under Section 482 Cr.P.C. with a prayer for quashing the same order.

In Rishi Anand vs. Govt. of NCT of Delhi, AIR 2002 SC 1531, the
Apex Court quashed the FIR under Section 482 Cr.P.C. because there were no
allegations of specific nature to connect the accused with the alleged offence
under Section 406 IPC. There was nothing in the FIR to show that the articles
were entrusted to the accused at the time of marriage. The accused had gone to
USA after his brief stay in India. In Prasanta Kumar vs. The State of West
Bengal, AIR 2003 SC 4412, the High Court had declined to entertain a petition
under Section 482/401 Cr.P.C. on the ground that the second revision petition
was not maintainable. The judgment of the High Court was set aside that
petition could not be dismissed on this technical ground and the High Court
should have gone out into the merit of the case to find out if it was a fit
case to interfere in revision. Reliance was placed on the decision in
Krishanan's case (Supra).

In Lakhwinder Singh vs. State of Punjab, 2004(4) RCR (Criminal)
104, it was held in para Nos. 12 and 19 as under:- "12. The observations made
above leave no manner of doubt that the wholesome jurisdiction conferred upon
the High Court by Section 482 of Code of Criminal Procedure cannot be
narrowed, confined or put in a strait-jacket. Criminal Misc. No.M-18404 of 2008
11 This inherent power can always be exercised by the High Court to prevent
abuse of the process of Court or to otherwise to secure the ends of justice.
The only constraint on the High Court is that since the power under this
section is very wide, it should be exercised with great care and and caution.
On the other hand, the court should not shy away from exercising this power
when the accused persons are being persecuted in the guise of prosecution.
Proceedings initiated and continued for oblique motives or to wreak vengeance
on the other party are liable to be quashed. Proceedings are also liable to be
quashed if even on the allegation being accepted in toto, prima facie no
offence could be made out.

19. It, thus, become fairly evident that the court have
consistently put an end to criminal proceedings which are an abuse of the
process of Court. At the initial stage, at the summoning stage and even after
charges have been framed, the High Court has the inherent power to quash
proceedings and to pass such orders as are necessary to prevent abuse of the
process of any court or otherwise to secure ends of justice. Section 482 of the
Code of Criminal Procedure contains a non-obstante clause to the effect that
nothing in the Code of Criminal Procedure shall be deemed to limit the powers
of the High Court to Criminal Misc. No.M-18404 of 2008 12 prevent abuse of the
process of Court. Therefore, filing of the charge-sheet in Court does not in
any manner affect the amplitude of the wholesome jurisdiction of the High
Court under Section 482 of the Code of Criminal Procedure. The only rider
being, that greater the power, greater the care and caution in exercise
thereof" This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006(3)
RCR(Criminal) 941, held as under:- "Power under Section 482 Cr.P.C. has to be
exercised sparingly and such power was not to be utilised as a substitute for
second revision. Ordinarily, when a revision has been barred under Section 397
(3) of the Code, the complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section 397 (1) of the Code,
as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can
entertain a petition under Section 482 of the Code, when there is serious
miscarriage of justice and abuse of the process of the Court or when mandatory
provision of law are not complied with and when the High Court feels that the
inherent jurisdiction is to be exercised to correct the mistake committed by
the revisional Court." Thus, the legal position that emerges is that this Court
is not expected to throw out a case on technicalities but is expected to
Criminal Misc. No.M-18404 of 2008 13 interfere wherever there has been failure
of justice or misuse of judicial mechanism or procedure. This Court is not
expected to be a mere silent spectator when it is made out that that criminal
prosecution is an abuse of process of the Court. This Court, in its discretion,
is expected to prevent the abuse of process or miscarriage of justice by
exercise of jurisdiction under Section 482 Cr.P.C.

In the present case the petitioners are the brothers, their wives
and sister of the husband of the complainant. A perusal of the FIR (Annexure
P-1) reveals that all the allegations are general in nature. So far as the
entrustment of dowry articles is concerned, the memos of recovery of dowry
articles (Annexure P-3 to P-6) reveal that dowry articles were recovered from
the husband and mother-in- law of the complainant. It has been averred that the
complainant had been tortured by all the accused for not bringing a Santro car
and by calling her baanj. It has also been averred in the FIR that petitioner
Nos.1 and 4 along with Mukesh Kumar, husband of the complainant, had given
beatings to the complainant under the influence of liquor. However, no specific
date has been mentioned nor the nature of injuries suffered by the complainant
has been disclosed in this regard.

In Kans Raj vs. State of Punjab and others, 2000 (2) RCR
(Criminal) 696 (SC), their Lordships of the Apex Court have observed that a
tendency has developed for roping in all the Criminal Misc. No.M-18404 of 2008
14 relations in dowry cases and if it is not discouraged, it is likely to
affect case of the prosecution even against the real culprits. The efforts for
involving the other relations ultimately weaken the case of the prosecution
even against the real accused. No doubt, the charge has been framed against the
petitioners by the trial Court and revision petition filed against the charge
has also been dismissed but each case has to be examined on its own facts. In
the present case, it is evident that the petitioners have been roped in the
case merely because they are relatives of the husband of the complainant.
Hence, in the facts and circumstances of this case, it would be just and
expedient to quash the order vide which charge was ordered to be framed against
the petitioners and the order, vide which revision petition was dismissed by
the Additional Sessions Judge, Ludhiana. Accordingly, this petition is allowed.
The impugned orders dated 30.4.2007 (Annexures P-7 and P-8) passed by the
learned Judicial Magistrate, Ist Class, Ludhiana, order dated 4.6.2008
(Annexure P-9) passed by the learned Additional Sessions Judge (Fast Track
Court), Ludhiana and all the subsequent proceedings, arising therefrom, qua
petitioners are quashed. (SABINA)

JUDGE

January 22, 2009

anita