Criminal Misc. No.M-1104 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-1104 of 2008 Date of decision: 22.1.2009 Meena and another ......Petitioners Versus State of Haryana and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Mamli, Advocate, for the petitioners. Mr.Sidharth Sarup, AAG, Haryana. Mr.Anil Rathee, 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 summoning order dated 31.5.2005 (Annexure P-1) passed by the learned Judicial Magistrate, Ist Class, Jagadhari and the order of the learned Additional Sessions Judge Yamuna Nagar dated 12.10.2007 (Annexure P-2). The case of the complainant Raj Bala, in brief, was that Criminal Misc. No.M-1104 of 2008 2 she was married to Krishan Lal on 3.2.2000 and they were blessed with a daughter on 28.12.2000. Parents of the complainant had given sufficient dowry at the time of marriage of the complainant. The family of her husband were not satisfied with the dowry articles and taunted her for bringing less dowry. Accused raised a demand of Hero Honda Motorcycle or Rs.50,000/- and since the said demand could not be met by the parents of the complainant, the accused started harassing the complainant. Meena (petitioner No.1 in this case) started threatening the complainant as her father was working in police department. Meena instigated Krishan Lal (husband of the complainant) that she could arrange for a second wife for him in case he deserted the complainant. When the daughter of the complainant was five months old, Meena gave slaps to the complainant by saying that the child was not of her brother-in- law (dever) and threatened the complainant that she would not allow her (complainant) to live in the matrimonial home. When complainant told about this incident to Gian Chand (respondent No.2) he also defended the action of Meena. In June, 2001, the complainant was given merciless beatings by the accused and she was sent to her parental home with a direction to bring a Hero Honda Motorcycle or Rs.50,000/-. With the help of Panchayat, the matter was compromised and complainant again started residing in her matrimonial home. After some time i.e. in the first week of December, 2001, the complainant was again thrown out of the Criminal Misc. No.M-1104 of 2008 3 matrimonial home and since then she along with her minor daughter was residing with her parents. All the dowry articles i.e. Istri Dhan had been retained by the accused. On the basis of a complaint filed by the complainant, FIR No.247 dated 30.11.2004 was registered but no arrests were made and a cancellation report had been submitted by the police. Vide order dated 31.5.2005, Judicial Magistrate, Ist Class, Jagadhari, summoned all the accused including the petitioners to face trial under Section 498-A/406 IPC. Aggrieved by the said order, the petitioner along with other co-accused filed a revision petition and the same was dismissed by the Additional Sessions Judge, Yamuna Nagar vide order dated 12.10.2007. Learned counsel for the petitioners has argued that the Courts below have erred in passing the impugned orders. On an earlier complaint filed by the complainant, police registered an FIR and after investigating the matter, submitted the cancellation report. The Magistrate, while passing the summoning order, has failed to consider the cancellation report. Reliance in this regard has been placed on a decision of this Court in Kuldip Raj Mahajan vs. Hukam Chand, 2008 (1) RCR (Criminal) 370. Learned counsel for respondent No.2 has argued that the petitioners had approached the Sessions Judge by way of a revision petition and, hence, the present petition being a second revision petition was not maintainable. Criminal Misc. No.M-1104 of 2008 4 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 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 Criminal Misc. No.M-1104 of 2008 5 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- 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.” 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. 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 Criminal Misc. No.M-1104 of 2008 6 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 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, Criminal Misc. No.M-1104 of 2008 7 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 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 Criminal Misc. No.M-1104 of 2008 8 miscarriage of justice by exercise of jurisdiction under Section 482 Cr.P.C. In the present case it was mentioned in the complaint itself that earlier the complainant lodged a complaint before the Magistrate and the same was referred to the Police by the Magistrate under Section 156(3) Cr.P.C. and FIR No.247 dated 30.11.2004 was registered. None of the accused was arrested and a cancellation report was submitted. A perusal of the summoning order passed by the Magistrate reveals that he has issued it without considering the cancellation report. Since, the impugned summoning order has been passed without considering or even referring to the cancellation report, the same is liable to be set aside. Accordingly, this petition is allowed. The impugned orders dated 31.5.2007 (Annexure P-1) passed by the learned Judicial Magistrate, Ist Class, Jagadhari and order dated 12.10.2007 (Annexure P-2) passed by the learned Additional Sessions Judge Yamuna Nagar are quashed. The petitioners will appear before the trial Court on 2.2.2009. The trial Court is directed to pass a fresh order as to whether the accused were required to be summoned or not after taking into consideration the cancellation report in accordance with law. (SABINA) JUDGE January 22, 2009 anita