Crl. Misc. No. M-23482 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 23482 of 2008 Date of decision. 10.03.2010 1. Balwinder Kumar @ Banti s/o Dev Raj, 2. Pooja w/o Balwinder Kumar, Both rs/o H.No. 1981, Mahant Mool Singh Colony, Babeksar Road, Amritsar. 3. Santosh Rani w/o Dev Raj r/o Mahant Mool Singh Colony, Babeksar Road, Amritsar. ....... Petitioners Versus 1. State of Punjab, 2. Aruna Rani w/o Rajinder Kumar d/o Tarsem Lal,r/o H.No. 7478, Mohalla Guru Hargobind Nagar, Phagwara, District Kapurthala. ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Sandeep Majithia, Advocate for the petitioners. Mr. T.S. Salana, DAG, Punjab for the respondent-State. Mr. Hitesh Kaplish, Advocate for respondent no.2. -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No.119 dated 11.04.2008 , under Sections 307, 498-A and 406 of the Indian Penal Code, Police Station City Phagwara, District Kapurthala, has been filed by the petitioners. Crl. Misc. No. M-23482 of 2008 2 2. Aruna Rani, respondent no.2/complainant, was married to Rajinder Kumar on 18.01.1995. Two children were born out of this wedlock. At the time of the marriage of Aruna Rani, complainant, sufficient dowry was given by her parents including the gold articles, the detail whereof is mentioned in the FIR. However, she was subjected to cruelty in connection with the demand of dowry, from time to time. . It was stated that the parents of Aruna Rani, complainant/respondent no.2, had already paid a sum of Rs.2,50,000/-, in pursuance of the earlier demand on 20.05.2002, 20.10.2004 and 15.6.2006. The petitioners again started demanding a sum of Rs.4.00 lacs, from Aruna Rani, complainant/respondent no.2, as her husband wanted to expand his business. The parents of respondent no.2 , however, refused to give that amount. When the parents of respondent no.2 failed to fulfill that demand, on 20.05.2007 at about 11.30 PM, the petitioners tried to burn her (Aruna Rani) alive. Even on the night intervening 19/20.3.2008 at about 1.30 a.m., the petitioners attempted to set ablaze Aruna Rani. Ultimately, the aforesaid FIR, was registered against the petitioners. 3. I have heard the Counsel for the parties, and have gone through the documents on record, carefully. Crl. Misc. No. M-23482 of 2008 3 4. The Counsel for the petitioners, submitted that after 13 years of marriage of respondent no.2 with Rajinder Kumar, she raised such false allegations against the petitioners, who are non-else than her brother- in-law, sister-in-law, and mother-in-law respectively. He further submitted that it could not be imagined that after 13 years of marriage, the petitioners would torture her in connection with the demand of dowry. He further submitted that on the other hand, Aruna Rani, complainant/respondent no.2, was having illicit physical relations with her brother-in-law namely Varinder Dutt and when her husband came to know of this relationship, he tried to make her understand and she gave him assurance, to refrain from indulging into such activities and also gave an affidavit, in that regard, but she did not desist. He further submitted that the allegations, contained in the FIR, were completely false. He further submitted that even the mother in-law of respondent no.2, is not mentally sound. He further submitted that continuation of the FIR, would be an abuse of the process of the Court. 5. On the other hand, the Counsel for the respondents, submitted that specific allegations were raised in the FIR, against the petitioners, with regard to the Crl. Misc. No. M-23482 of 2008 4 entrustment of dowry articles and subjecting the complainant to cruelty in connection with the demand of dowry. They further submitted that on 20.05.2007 at about 11.30 PM the petitioners tried to burn the complainant alive. Even, on the night intervening 19/20 March 2008 at about 1.30 AM, the petitioners made an attempt to set ablaze the complainant. They further submitted that the husband of the complainant/respondent no.2 namely Rajinder Kumar forged the affidavit dated 28.04.2007, alleged to have been sworn by the complainant in which she allegedly admitted her illicit relations with her brother- in-law namely Varinder Dutt. An enquiry was conducted, on the complaint, made by the complainant, to find out the authenticity of that affidavit. After thorough inquiry, FIR No. 268 dated 14.12.2008, under Sections 419, 420, 465, 468, 471, 120-B and 500 of the Indian Penal Code, was registered against the husband of complainant/respondent no.2, namely Rajinder Kumar, for forging the said affidavit. They further submitted that continuation of the FIR and further proceedings, would not amount to sheer abuse of the process of the Court and law. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the FIR and Crl. Misc. No. M-23482 of 2008 5 the subsequent proceedings, should be quashed. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations, set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Crl. Misc. No. M-23482 of 2008 6 Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non- Crl. Misc. No. M-23482 of 2008 7 cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding 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. Crl. Misc. No. M-23482 of 2008 8 Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. The inherent powers, with which the Criminal Courts, are clothed are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now, adverting to the facts of the instant case, let us see, as to whether, the petitioners deserve the indulgence of the Court or not. At the time of deciding the petition under Section 482 Cr.P.C., the Court is only required to, look into the allegations, contained in the FIR and the documents attached therewith as to whether an offence, is constituted therefrom against the accused or not. The probable defence of the petitioners cannot be taken into consideration, at the time of deciding the petition under Section 482 Cr.P.C. There are specific allegations, against the petitioners, levelled by respondent no.2/complainant in the FIR. The mere fact that the FIR was got registered after 13 years of the marriage of the Crl. Misc. No. M-23482 of 2008 9 complainant, did not mean that the same are prima-facie false. Even, there are specific allegations, that the petitioners made an attempt to set ablaze respondent no.2/ complainant twice. No doubt , a plea was raised by the petitioners, in the petition, as also at the time of the arguments, that since respondent no.2/complainant was having illicit relations, with her brother- in-law namely Virender Dutt, and she also swore an affidavit admitting her relations with him, and when she did not desist from her immoral activities, despite objection by her husband and other members of the family, the instant false FIR was got registered. On the basis of the application, made by respondent no.2/complainant, an enquiry was made, to find out, as to whether the affidavit was genuine or not. Ultimately, the police came to the conclusion that the same had been forged by the husband of respondent no.2/complainant, and a separate FIR, referred to above, was registered against him. Under these circumstances, the continuation of FIR, and further proceedings against the petitioners, would not amount to sheer abuse of the process of the Court . The same are not liable to be quashed. 8. For the reasons, recorded above, the petition, being devoid of merit, must fail, and the same is dismissed. Any observation made, in this order, shall not be taken, as an expression of mind, on merits of the case. Crl. Misc. No. M-23482 of 2008 10 9. The Registry is directed to comply with the order immediately. (SHAM SUNDER) JUDGE March 10, 2010 dinesh