In the High Court of Punjab and Haryana at Chandigarh Criminal [CASE NUMBER] Date of decision:12.8.2013 [ENTITY] and others Petitioners v. [ENTITY] and another Respondents Coram: Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the petitioners. Mr. [ENTITY], Assistant Advocate General, Punjab for the respondent-State. Mr. [ENTITY], Advocate for complainant-respondent No.2. [ENTITY], J.
Petitioners [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have filed this petition under [SECTION] [ACT] for quashing of FIR No.60 dated 18.1.2008 registered for the offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] at Police Station Kotwali Bathinda, District Bathinda and summoning order dated 18.12.2010.
The brief facts of the case are that [ENTITY] was married to [ENTITY] and is maternal aunt (Mami) of complainant- respondent No.2 [ENTITY]. Petitioner No.2 [ENTITY] is [CASE NUMBER] father, petitioner No.3 [ENTITY] is sister-in-law, petitioners No.4 and 5 [ENTITY] and [ENTITY] are brothers and petitioner No.6 [ENTITY] is sister-in-law of petitioner No.1. As per the facts given in the petition, matrimonial dispute arose between [ENTITY] petitioner No.1 and her husband [ENTITY] and divorce petition was filed by [ENTITY] against [ENTITY] petitioner No.1, which was dismissed by the Additional District Judge, Bathinda. Then the appeal was dismissed by this Court on 7.7.2009 and the SLP was dismissed by the Hon'ble Supreme Court vide order dated 4.1.2010. At the instance of petitioner No.1, her father, namely, [ENTITY] (petitioner No.2) also got registered FIR No.393 dated 17.9.2007 for the offences under [SECTION] and [SECTION] [ACT] at Police Station Sadar, Amritsar against [ENTITY] and his other family members including [ENTITY], mother of the complainant-respondent No.2 [ENTITY]. It is also stated that during the pendency of the appeal in the High Court, petitioner No.1 [ENTITY] and [ENTITY] started living together in house No.192-A/1, Shant Nagar, Bathinda. Husband of petitioner No.1 again contracted second marriage with [ENTITY]. During the assembly elections 2007, petitioner No.1 was shifted to House No.183- A/60-3, Shant Nagar, Bathinda from House No.192-A/1 Shant Nagar, Bathinda and the reason was that [ENTITY]-husband of petitioner No.1-[ENTITY] could live happily with his second wife [ENTITY]. This fact was not known to [ENTITY]-petitioner No.1 at that time.
[CASE NUMBER] As per facts of FIR No.60 dated 18.1.2008 registered at Police Station Kotwali Bathinda, on the intervening night of 12/13.1.2008, the petitioners were present in House No.183-A/60-3, Shant Nagar, Bathinda. These petitioners stole the articles, gave slaps and kicks to the complainant-respondent No.2 [ENTITY]. The petitioners were armed with small hockey sticks etc. They stole `5,000/- in cash, gold necklace and gold ring of the complainant-respondent No.2. They went away and after that petitioner No.1 [ENTITY] and her daughter remained in one room. It is also stated in the FIR that petitioner No.1 [ENTITY] and her daughter remained as paying guests for some months in that room and TV set etc. had been provided by the complainant-respondent No.2.
The Police after due inquiry filed cancellation report as they found the allegations as false. In cancellation report, statement of complainant-respondent No.2 was recorded, who opposed the cancellation report. Then the learned Judicial Magistrate Ist Class, Bathinda vide impugned order dated 18.12.2010 passed the summoning order in that cancellation report.
In the reply filed by way of affidavit by [ENTITY], IPS, Assistant Superintendent of Police (City II), Bathinda, it is stated that [ENTITY] (respondent No.2) got registered FIR No.60 dated 18.1.2008 against [ENTITY] and others in order to exert pressure on them for compromise in case FIR No.393/2007. It is also stated that during inquiry, it was found that allegations levelled by [CASE NUMBER] complainant [ENTITY] were found to be false and it was found that he got registered this case by concocting a false story. Respondent No.2-complainant [ENTITY] in his reply mainly denied the submissions as given in the petition and taken preliminary objections that disputed questions of law involved in this case and quashing do not lie. Even he has denied the allegations levelled by petitioner No.1 against her husband [ENTITY]. It is also stated that FIR No.393 dated 17.9.2007, registered for the offences under [SECTION] and [SECTION] [ACT] against [ENTITY] etc. and also against the mother of the complainant, namely, [ENTITY], is false.
Learned counsel for the petitioners contended that there is nothing on the record to show that [ENTITY] petitioner No.1 was residing as paying guest in the house. She is real maternal aunt (Mami) of complainant-respondent No.2. The injuries are only stated by kicks, slaps and fist blows. The version of the complainant is improbable. When so many persons were present with hockey, swords and sticks, why they would give slaps and fist blows only and as to why they would commit theft in the house at night and would leave petitioner No.1 [ENTITY] along with her daughter in the said house. He also stated that it is clear that the case is a counter-blast which was found in the inquiry as false. Mother of the complainant-respondent No.2 is accused in a case FIR No.393 dated 17.9.2007 got registered by petitioner No.2 [ENTITY] father of petitioner No.1 [ENTITY]. The complainant-respondent No.2 is real nephew of [ENTITY], husband of petitioner No.1. When Harvinder [CASE NUMBER] [ENTITY] failed to get the divorce even upto the Hon'ble Supreme Court, he got this false case registered through [ENTITY], present complainant.
On the other hand, learned counsel for the complainant- respondent No.2 stated that the facts given in the complaint are correct. Disputed questions of facts and law are involved in this case and the allegations are to be decided only by the trial Court after taking evidence of the parties and quashing petition is not maintainable. The plea of alibi is also to be proved before the trial Court.
I have gone through the record minutely and carefully and have heard learned counsel for the petitioners, learned Assistant Advocate General, appearing for respondent No.1-State and learned counsel for the complainant-respondent No.2.
From the record, I find merit in the petition. It is admitted fact that FIR was got registered by [ENTITY] petitioner No.2 at the instance of [ENTITY] petitioner No.1 against [ENTITY] husband of [ENTITY] for the offences under [SECTION] and [SECTION] [ACT] on 17.9.2007. [ENTITY], mother of respondent No.2-complainant in this case is also accused in that case. As per [ENTITY] petitioner No.1, she was shifted to the house in question by [ENTITY] to get rid of her as he wanted to live happily with his second wife [ENTITY]. There is nothing on the record to show that [ENTITY] along with her daughter was residing as a paying guest in the house. The version of the prosecution also looks improbable that the petitioners, who [CASE NUMBER] were armed with deadly weapons i.e. swords, sticks etc., would not cause any injury with weapons to respondent No.2-complainant and they would only give slaps and fist blows. Learned counsel for the complainant- respondent No.2 has not mentioned that any serious injury had been caused to complainant-respondent No.2. In the FIR also, only [SECTION] [ACT] along with other sections of [ACT] had been mentioned. Further, the version of respondent No.2 also looks improbable and unnatural that after committing theft of `5,000/- or four Tolas of gold, other petitioners left the place after leaving [ENTITY] and her daughter there in the house. As per complainant, the petitioners came in two cars. Why they would leave [ENTITY] and her daughter at the spot? These facts have been duly considered in the inquiry conducted by the DSP City, Bathinda. The inquiry report is also placed on the record, which is Annexure-P.5 and all these facts were found false and concocted. It is also in the affidavit filed by respondent No.1-State that this complaint is filed to put pressure upon the petitiones to withdraw the earlier case filed by them under [SECTION] and [SECTION] [ACT] against [ENTITY] etc. and also against the mother of complainant-respondent No.2. Therefore, from the record, it is clear that this FIR is a counter-blast and has been filed only to put pressure upon the petitioners to withdraw the earlier cases filed by them under [SECTION] and [SECTION] [ACT]. The petitioners also placed on record a copy of DDR No.25 dated 20.1.2008 i.e. after two days of the registration of the FIR which is filed by [ENTITY] stating that the complainant was being harassed by her in-laws and they had cut the [CASE NUMBER] electricity and after abusing her and giving threats to her, they also locked the room from outside and went away on that day. This DDR No.25 also supports and corroborates the petitioners' version.
In the quashing petition, this Court is mainly to see whether it is an abuse of the process of the law and Court. From the FIR in this case, it is clear that it is a concocted version and has been filed as a counter- blast just to harass the petitioners and to put pressure upon them. The version also looks improbable. At one stage, the complainant-respondent is saying that [ENTITY] and her daughter were residing as paying guest and they have been provided with television set etc. If that is the case, then why they would commit theft at night of a small amount and small quantity of gold. It is also the case of the petitioners that this house was earlier in the letters shown as house owned by [ENTITY]. The petitioners' case is also that [ENTITY] was shifted in this house in 2007 as [ENTITY] contracted second marriage at that time and she was not knowing that fact.
Learned counsel for the petitioners placed reliance on the judgment of Supreme Court in [PRECEDENT], in which it is held that the jurisdiction for quashing criminal proceedings can be exercised even when application for discharge of the accused is pending with the trial Judge. Such power should be exercised cautiously to prevent abuse of process of Court. In that case, General Manager of a Finance Company roped the appellants and their family members in order to coerce them to refund the amount [CASE NUMBER] borrowed by them from the company. In that case on the facts of that case it was held that it is an abuse of process of Court and law. The law laid down in this case fully applies to the facts of the present case. In this case also it is clear abuse of the process of law.
On the other hand learned counsel for complainant-
respondent No.2 placed reliance on the judgment of Supreme Court in [PRECEDENT]. I have gone through this judgment. In that case, it is held that the Magistrate has power to reject closure report and issue process to accused. This case having distinguished facts will not apply in the present case. Of course, the Magistrate has power to reject the closure report but it is no where held that no quashing can be allowed when there is an abuse of the process of Court and law.
Learned counsel for the complainant-respondent No.2 also placed reliance on the judgment of the Supreme Court in Kushal Kumar Gupta and another v. Mala Gupta, 2011 (4) RCR (Cr. 186. I have gone through this judgment. This case having distinguished facts will not apply in the present case. Learned counsel for complainant-respondent No.2 also placed reliance on the judgment of Lakhwant [ENTITY] v. Jasbir [ENTITY] and others, 2008 (4) AICLR 731. I have gone through this judgment. This case also having distinguished facts will not apply to the present case as in this case it is held that at the time of framing of charge, the Court is only prima facie to be satisfied about the existence of sufficient ground for proceedings against the accused. This case does not deal with the abuse [CASE NUMBER] of the process of Court. He also placed reliance on the judgment of Supreme Court in [PRECEDENT]. I have gone through this judgment. This case having distinguished facts will not not apply in the present case.
In [PRECEDENT], the Hon'ble Supreme Court has held that 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. It is also held in this case that where 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, the Court can quash proceedings.
From the above discussion, I find merit in the petition and the same is allowed. Accordingly, FIR No.60 dated 18.1.2008 registered for the offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] at Police Station Kotwali Bathinda, District Bathinda and all subsequent and consequential proceedings arising therefrom are hereby quashed.
August 12, 2013. ([ENTITY]) Judge *hsp*