Crl. Misc. No.M-1250 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-1250 of 2009 Date of Decision: 21.09.2010 Kamla and another ....Petitioners Versus State of Punjab etc. ...Respondents Crl. Misc. No.M-3702 of 2009 Naresh Kumar .....Petitioner State of Punjab etc. .....Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Rahul Rathore, Advocate for the petitioners. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. Ms. Sangeeta Dhanda, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This Order shall dispose of both Crl. Misc. No.M-1250 of 2009 and Crl. Misc. No.M-3702 of 2009. Crl. Misc. No.M-1250 of 2009 has been filed by mother-in-law and father-in-law, whereas, Crl. Misc. No.M-3702 of Crl. Misc. No.M-1250 of 2009 2 2009 has been filed by the husband of respondent No.2. For the sake of convenience, the facts are being taken from Crl. Misc. No.M-1250 of 2009. This is a petition under Section 482 Cr.P.C for quashing of the impugned FIR No.239 dated 09.10.2008 under Sections 406/498-A of IPC registered at Police Station City Rajpura, District Patiala and all other subsequent proceedings arising out thereto. Brief facts of the case are that petitioner No.2, namely, Balak Ram, who is aged about 69 years, is the husband of petitioner No.1, namely, Kamla Devi. The present FIR has been lodged by the complainant, namely, Anita Rani wife of Naresh Kumar, who is daughter-in-law of the present petitioners being wife of their son Naresh Kumar. The present petitioners have two sons, namely, Naresh Kumar and the younger one namely Ishwar Ghavri. The marriage of the elder son of the present petitioners, namely, Naresh Kumar was solemnized way back in the year 1992 with the complainant-Anita wife of Naresh Kumar i.e. nearly 17 years back. Two male children, namely, Nabi and Vipul were born out of the wedlock and out of them Nabi, who is aged about 14 years and is a student of Class 9th, whereas, Vipul is aged about 12 years and is studying in 6th Class. Both the children are staying with their father. While praying for quashing of FIR, learned counsel for the petitioners submitted that the complainant used to pick up quarrels on one pretext or the other and the complainant along with her husband had shifted their residence and therefore the petitioners had got nothing to do with the matrimonial life of the complainant for the last about 17 years and, therefore, the FIR is an abuse of process of law. It was further stated that the complainant left for Rajpura to visit her parental house on 10.11.2007 and, thereafter, did not bother to call and enquire about the two children who are residing with the son of the petitioners. Accordingly, the son of the present petitioners had filed a petition under Section 13 of the Hindu Crl. Misc. No.M-1250 of 2009 3 Marriage Act for dissolution of marriage by way of decree of divorce. The said case was decided in favour of the son of the petitioners on 17.03.2008 i.e. seven months prior to registration of the present FIR. The said Order is an ex-parte order as the complainant did not put in appearance despite service. The said FIR was lodged only after the grant of divorce. Moreover, the complainant filed an application for taking action against the petitioners under the Protection of Women from Domestic Violence Act, 2005 and the police had wrongly registered the case under Sections 498-A and 406 of the IPC. Learned counsel for the respondent-complainant, however, vehemently opposed the petition on the ground that the petitioners have not only committed offences under Sections 406 and 498-A of IPC under which present FIR was registered but have connived with their son who has committed fraud on the answering respondent by obtaining a sham decree of divorce and now by filing present quashing petition has tried to mislead this Court by placing on record the said decree of divorce, which is under challenge before the Additional District Judge, Kurukshetra. The son of the petitioners has committed fraud with the answering respondent because he has obtained a decree of divorce within a period of less than two months and that too without getting any summons served upon the answering respondent because he knew that the answering respondent would not agree to divorce him since all through she has been fighting tooth and nail to save her matrimonial home and had always wanted to live with her husband in a peaceful manner for which she had taken the help of panchayat and police in order to protect and save her matrimonial life. Learned counsel for the parties have been heard. The allegations in the FIR are that the complainant along with her husband and children started living in the house of her mother-in-law and after some days, the mother-in-law, father-in-law and brother-in-law of the complainant Crl. Misc. No.M-1250 of 2009 4 started instigating her husband Naresh Kumar, due to which, her husband started harassing and humiliating her in the odd hours in night and also insulting and beating her. Her in-laws' family also got her beaten up at the hands of her husband and they were instrumental in instigating her husband. In this way, her husband gave beating to her on several occasions. She had disclosed the whole thing to her parents on telephone. Her husband on the instigation of his parents gave beatings to her and they turned her out of the house in three clothes by keeping her children with them, due to which, she came to Rajpura along with her brother Raj Kumar. A perusal of the above shows that all the allegations are against the husband-Naresh Kumar. The allegations against the father-in-law and mother-in-law are that they were instigating her husband Naresh Kumar to beat her. Section 498-A of the IPC reads as under :- “ 498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Crl. Misc. No.M-1250 of 2009 5 Thus, in order to attract Section 498-A of the IPC, the ingredients which are required to be satisfied are that the harassment on account of demand of dowry or beating/violence against wife in the matrimonial home. In the entire FIR, there is no allegation that there was a demand of dowry. Thus, the instigation alone may not amount to Section 498-A IPC in the facts of the present case. Moreover, the allegation of beating is only against the husband. Thus, if at all, Section 498-A IPC is made out against the husband alone. The argument of learned counsel for the respondent/complainant that Section 498-A IPC is not made out against the husband, cannot be accepted, in as much as, the allegations clearly fall under explanation (a) of Section 498-A IPC. Thus, there is a specific allegation against the husband disclosing the ingredients of offence under Section 498-A IPC. This Court in a case of Divya alias Babli and others v. State of Haryana and another reported as 2006 (4) RCR (Criminal) 322, while relying on the judgement of the Apex Court rendered in the case of Kans Raj v. State of Punjab and others reported as 2000(2) RCR (Crl.) 695 held as under:- “22. Another judgement rendered in Shinder Pal @ Kakke's case (supra) relied by Mr. Saini, this Court while relying upon a judgement of Apex Court rendered in Kans Raj v. State of Punjab and others, AIR 2000 Supreme Court 2324 wherein their Lordships have observed that a tendency has developed for roping in all the relations in dowry cases which ultimately weakens the case of the prosecution even against the real accused. 23. My view is also fortified by the latest judgment of Hon'ble Supreme Court rendered in Ramesh Kumar and others vs. State of Tamil Nadu, 2005 (2) R.C.R. (Criminal) 68 in which their Lordships while quashing the proceeding against sister-in-law who was staying at a Crl. Misc. No.M-1250 of 2009 6 different place observed that there were bald allegations to rope in as many relations of the husband. 24. Another latest judgment of Apex Court rendered in Sushil Kumar Sharma vs. Union of India and others, 2005 (3) R.C.R.(Criminal) 745 where issue of striking down Section 498-A IPC had sprouted, their Lordships observed that in such type of cases the “action” and not the “section” may be vulnerable and the Court by upholding the provisions of law may still set aside the action, order or decision and grant appropriate relief to the persons aggrieved. Their Lordships while dealing with the dowry menace, however, observed in para 17 as under:- “ The object of the provision is prevention of the dowry menace. But as he has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomny (ignominy?) suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendettaor unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is Crl. Misc. No.M-1250 of 2009 7 intended to be used a shield and not an assassin's weapon. If cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalised statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.” Lately, a tendency has developed for roping in all the relations in dowry cases in order to browbeat and pressurize the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made. In the present case, the FIR was lodged after 17 years of the Crl. Misc. No.M-1250 of 2009 8 marriage. There is no allegation qua the demand of dowry. The allegations against the father-in-law and mother-in-law are vague and not specific. However, the allegation of beating is only qua the husband with specific allegation of use of violence by him against her. In the light of the judgment passed by this Court in the case of Divya alias Babli and others (supra), the present petition bearing Crl. Misc. No.M-1250 of 2009 qua petitioners i.e. mother-in-law and father- in-law of the complainant is allowed and FIR No.239 dated 09.10.2008 under Sections 406/498-A of IPC registered at Police Station City Rajpura, District Patiala and all other subsequent proceedings arising out thereto are, hereby, quashed, whereas, Crl. Misc. No.M-3702 of 2009 filed by the husband of the complainant is dismissed being devoid of merit. (NIRMALJIT KAUR) 21.09.2010 JUDGE gurpreet