Cr.Misc. NO. M 3362 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Cr.Misc. NO. M 3362 of 2009 DATE OF DECISION 2.4.2009 Tarun Sadana ......PETITIONER VERSUS Chandigarh Administration. ......RESPONDENTS PRESENT: Mr. G.L.Sadana, Advocate M.M.S.BEDI,J. The petitioner is facing trial in a case FIR No. 240 dated 20.6.2005 registered at P.S. Sector 17, Chandigarh u/s 498A/506/406 IPC and Section 4 Dowry Prohibition Act. The instant petition has been preferred u/s 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing:- 1. FIR number 240 dated 20.6.2005 registered at PS-17, Chandigarh (Annexure P-1) 2. Chargesheet at Annexure P-13; served on 30.4.2008. 3. Order of JMIC Chandigarh Sh. A.S.Shergill Annexure P-12 dated 30.4.2008, to the extent it is not discharging petitioner of charges u/s 498A and 506 IPC and 4. Sh. S.K.Aggarwal's, ADJ Chandigarh, order dated 23.7.2008 and 13.1.2009 (Annexure P-16 and 17 A) Cr.Misc. NO. M 3362 of 2009 2 dismissing respectively petitioner's Criminal Revision no.85 dated 26.5.2008 and Revision Application dated 23.8.2008. The petitioner has been charged for offence under Section 498 A/506 IPC vide charge sheet dated 30.4.2008 (Annexure P- 13) on the allegation that he subjected his wife Jaspreet Kaur to cruelty after February 2004 and that he threatened her on 17.3.2005 with an injury to her person. The petitioner had filed an application for discharge u/s 227 Cr.P.C., which was dismissed by the Judicial Magistrate Ist Class vide order dated 30.4.2008 (Annexure P-12) by a detailed speaking order running into 11 typed pages. The revision petition filed against the order dated 30.4.2008 was dismissed by the learned Additional Sessions Judge, Chandigarh vide order dated 23.7.2008 (Annexure P-16). Subsequently, the petitioner moved another application (Annexure P-17) raising 22 points, which have been left un-dealt vide order dated 23.7.2008. The said application was also dismissed vide order dated 13.1.2009 (Annexure P-17 A) on the ground that in view of the earlier order passed, it was not feasible to review order dated 23.7.2008, as such the application was held not maintainable. Mr. G.L.Sadana, learned counsel for the petitioner has challenged the charge sheet (Annexure P-13), order of the learned Judicial Magistrate Ist Class Shri A.S. Shergill dated 30.4.2008 (Annexure P-12) and the orders passed by the learned Additional Sessions Judge, Chandigarh (Annexures P-16 and 17-A) dated 23.7.2008 and 13.1.2009,respectively, contending that the following points should have been decided by the courts below:- Cr.Misc. NO. M 3362 of 2009 3 S. N o Critical point Nature Whether dealt or not by ADJ 1 FIR (Page 1 para 2) counterblast to Divorce petitioner filed three months earlier. Could the complainant made a criminal issue out of an existing sub judice matter? Legal/ Basic. Not a matter of evidence. No reference. completely ignored. 2 No.3 page 2 Despite repeated notices/ adjournments State complainant filed no denial/ contradiction to the discharge application dated 5/5/06 (pages 35-46) Whether PP had any legal right to raise any objection/opposition against his own pleadings? Why these admissions be not presumed u/s 294 of CrPC especially when para 41 of the lower court's order mentions that the law on which defense counsel relies has not been disputed. Ignored 3 No.4 (page 3) QUA 498 A Demand of money for domestic/ household expenses or due to any financial stringency does not come under the purview/ ambit of section 498A (AIR 2007 SC 763) copy supplied. Most crucial legal point to be applied while invoking Section 498A in light of SC ruling Completely ignored by ADJ Cr.Misc. NO. M 3362 of 2009 4 4 Same allegations/ similar complaints filed by the same complainant against the same accused already decided by Mohali/Kharar courts. Judicial notice of court's judgment were required tobe taken so as to preempt the charges. Ignored 5 When charge for demand of dowry u/s 4 of the Dowry Prohibition Act has been dropped against the petitioner then how can the same facts be used to frame him under section 498A ab-initio within the wording for example in the said section when even the demand for dowry be presumed it was certainly not unlawful (This does not fall under the Explanation No.(b) of Section 498A) Crucial legal point as per wording of Section 498 A itself Ignored. 6 Whether reliance on and the bindings of the apex courts rulings and this Hon'ble court's allied court's decisions duly brought to the court's notice involve any cross examination? Was prima facie credence thereto was not mandatory? Critical legal issue Ignored 7 Allegations u/s 498 A not believable in respect of love marriages... Punjab and Haryana High court judgment. Copy supplied. Critical legal issue Ignored Cr.Misc. NO. M 3362 of 2009 5 8 It was mandatory for Lower Court to state the basic grounds which compelled him to charge the petitioner u/s 498A and 506 (Cr. 2005 SCC-560) Para 6 page 5. Critical legal issue Ignored 9 How could orders of District Guardian Judge dated 2.6.2005 and 11.6.2005 and Session Judge's orders dated 8.12.2006 of the Chandigarh District courts be ignored qua charge u/s 506? (point iv para 5) Critical legal issue Ignored 10 How could charge u/s 506 be levied without even an iota of injury to the complainant as prerequisite is “threat with injury” and to omit to do “ what the complainant was legally entitled to do”. Her title whatsoever had been ruled out by DGJ's orders dated 2 and 11.6.2005 (Issue iv and v page 3 and 4) Critical legal issue Ignored 11 When at the time of bail both the complainant and the APP limit the scope of FIR and suggest that the main/ real issue relates to extramarital relationship of accused then how come he is being charged u/s 498A and 506 (Item v page 6) Critical law point Ignored. Cr.Misc. NO. M 3362 of 2009 6 12 Do the police have the licence to conceal some relevant and critical documents and information pertaining to the case just to frame someone. (especially in context of number of judgments) Item 9 page 7. Critical legal issue Ignored 13 How the requirement of S 227 and 239 CrPC have been fulfilled when the submission of the petitioner have not been decided/ considered (10 on page 7) Critical legal issue Ignored 14 When the basic complaint dated 15.6.2005 is admittedly not on record then how can the FIR sustain? (Item 12 page 8) Critical legal issue Ignored 15 When the complaint dated 21.4.2005 which forms basis of bail proceedings both at the district court level and even in High Court is dropped then why double jeopardy and under which law? (item 12 page8) Critical legal issue Ignored 16 Statements u/s 161 of CPC do not lend any credence to any complaint/ charge. They have no evidentiary value and are neither prima facie basis for charging an individual (“h” at page 10) Critical legal issue Ignored Cr.Misc. NO. M 3362 of 2009 7 17 Complainant's own petition dated 26.4.2005 for restitution of conjugal Rights condones all allegations of cruelty. Leaving no basis for charges in question. Item no.14 page 11. Critical legal issue Ignored 18 No FIR legally permissible on second complaint....AIR 2001 SC 2037; JT (2006) (11) SC 326; Then how come an FIR dated 20.6.2005 could be possible? Item 4 in list dated 12.7.2008. Critical legal issue. Ignored 19 The first at was made to Mohali police on 20/3/2005 who did not find it fit for registration of case? Then how come Chandigarh police could entertain a third complaint and register a case thereby exceeding their jurisdiction. Item 17 page 3. Critical legal issue Except for a slight reference issue of jurisdiction was left untouched. 20 The order does not have any reflection of a “reasoned order” as per legal requirement....2000 Cr LJ 2513. point no 18 page 13. Critical legal issue Ignored 21 Chandigarh police committed a contempt of court by entertaining a matter which was sub judice and also in civil courts in Mohali and Kharar... Item 2 page 15. Critical legal issue Ignored Cr.Misc. NO. M 3362 of 2009 8 22 How could a statement u/s 161, having of Sh I D Kalra, GM CITCO not even signed by the IO form a prima facie evidence for framing of charges ? Item 3 page 16 Critical legal issue Ignored I have heard learned counsel for the petitioner at length and carefully considered every point raised before the revisional court and before this court but I am of the view that the grievance of the petitioner is that from the inception till the framing of charges, the entire proceedings are vitiated; the investigation is biased and that the continuation of the proceedings against the petitioner is an abuse of the process of the court. It is pertinent to observe here that at the time of framing of charge, the trial court is required to determine prima facie whether any offence is made out on the basis of report u/s 173 (2) Cr.P.C. after taking into consideration all the documents and the statements appended thereto. The probability of the allegations being false and the material being weak is not within the ambit of the jurisdiction of the court framing charge to be considered at the time of framing of charge. If there is any defect in the investigation or there is any mala fide attributed to the investigating agency, it is always a good and sufficient ground to seek acquittal in the adversary system of criminal trial prevalent in our system for administration of justice. It is always for the prosecution to discharge the onus of proving the charges against the accused beyond the shadow of doubt. The process of cross-examination, provided under the law, gives a fair opportunity to the accused to falsify the Cr.Misc. NO. M 3362 of 2009 9 witnesses and to elicit truth to enable the court to separate chaff of falsehood from the grains of truth. An opportunity is granted to the accused to produce defence. The Constitution provides right to every citizen to seek expeditious trial. I have considered all the pleas raised by the petitioner. All the pleas constitute probable defence available to the petitioner, which are required to be put to the investigating agency as well as the prosecution witnesses, including the complainant. After the dismissal of the revision petition against charges, the scope of interference in the exercise of inherent jurisdiction is very meager. Power u/s 482 Cr.P.C. can be exercised only if there is an established abuse of the process of the court or exercise of power is necessary in the interest of justice. The petitioner will have enough opportunity to impeach the credibility of the witnesses cited in the case, put forth by the prosecution and seek acquittal. It will not be prudent at this stage to quash the charges. I have gone through the orders passed by the Judicial Magistrate Ist Class dated 30.4.2008 and the revisional court 23.7.2008 and 13.1.2009, respectively but do not find any ground to interfere in the order of framing of charge against the petitioner. The petition is dismissed. However, it is observed that any observations made by this court or the courts below at the time of dismissal of the application for discharge filed by the petitioner, will not, in any manner, affect the merits of the case. April 2 ,2009 ( M.M.S.BEDI ) TSM JUDGE