CRM No. M 14619 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 14619 of 2009 Date of decision: 12.11.2010 Smt. Savita and another ........ Petitioners Versus State of Haryana and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. J S Hooda, Advocate for the petitioners Ms Priyanka Dalal, AAG, Haryana for the respondent - State Mr. Navneet Singh, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of order dated 10.07.2008 passed by learned Judicial Magistrate Ist Class, Palwal whereby the petitioners were summoned under Section 498-A, 406, 506 of Indian Penal Code read with Section 34 of Indian Penal Code and order dated 09.03.2009 passed by the Additional Sessions Judge, Faridabad whereby the revision petition filed by the petitioners against the aforesaid order dated 10.07.2008 was dismissed. CRM No. M 14619 of 2009 2 Respondent No. 2 filed complaint under Section 498-A, 406, 506, 34 of Indian Penal Code in the court of Judicial Magistrate Ist Class, Palwal against accused Fateh Singh, Hetram, Smt. Gajrajan, Savita (herein petitioner No. 1) and Girraj (herein petitioner No. 2). The Illaqa Magistrate ordered the registration of FIR under Section 156 (3) of the Code of Criminal Procedure. Challan was presented against Fateh Singh, Hetram and Smt. Gajrajan i.e. husband, father-in-law and mother-in-law. But the present petitioners who is sister-in-law and far off relative was found innocent. Subsequently, the trial Court summoned the present petitioners under Section 190 (1) (b) of the Code of Criminal Procedure. Aggrieved, the petitioners filed the revision petition, which was also dismissed. Accordingly, the present petition has been filed under Section 482 of the Code of Criminal Procedure seeking quashing of the impugned orders vide which the petitioners were summoned. After arguing for some time, learned counsel for the petitioners stated that he may be allowed to withdraw the present petition qua petitioner No. 1. Accordingly, the present petition stands dismissed as withdrawn qua petitioner No. 1. Now, the present petition survives only qua petitioner No. 2 (Girraj). It was contended by the learned counsel for the petitioner that petitioner No. 2 is not even amongst the family members. He is residing separately from the family of the in-laws of the complainant. Further, he has not made any demand of dowry and nor has misappropriate any dowry CRM No. M 14619 of 2009 3 article and nor has indulged in any cruelty. As such, no offence under Section 498-A and 406 IPC is made out against him. Learned counsel for respondent No. 2 has vehemently opposed the arguments raised by the learned counsel for petitioner No. 2 and submitted that he is a close relative of in-laws of the complainant. He used to instigate the other family members against the complainant. It was on his instigation, the other accused tortured respondent No. 2. Reliance was placed on the judgement of the Apex Court rendered in the case of Sarvesh Naram Shukla v. Daroga Singh and others reported as 2007(4) RCR (Criminal) 955 to state that the Magistrate is entitled to take cognisance of offence under Section 190 (1) (b) of the Code of Criminal Procedure even if the police report is to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognisance of the case,if he thinks fit. Learned counsel for the parties are heard. There is no dispute with the proposition of law that the Magistrate is well within his right to issue the process against the accused by exercising of his power under Section 190 (1) (b) of the Code of Criminal Procedure even if the police report suggests that the accused has not committed any offence. The question herein would be as to whether it was necessary to issue process against petitioner No. 2 in view of the facts, circumstance and allegations made in the FIR/complaint and the subsequent statements or not. CRM No. M 14619 of 2009 4 The allegations levelled against petitioner No. 2, who is referred as accused No. 5 in the FIR/complaint, are as under:- “On 15.06.2006 aforesaid accused No. 1 and 4 together confined her in room forcibly and all the four beaten her badly with fist blows and slaps and said that our son is employed in Delhi Police, his status is of Car, you will be kept only when you bring the car. The accused No. 3 and 4 give fist blows in the stomach of the applicant and said that her pregnancy would be terminated and then accused No. 5 Girraj also came there and said that he will arrange second marriage of Fateh and terminate her pregnancy and turn her away. I will get you car in second. Accused No. 5 has illicit relations with her mother-in-law and she had seen them in compromising position and all the accused said that in case she will initiate any action regarding this then they will eliminate her. It is evident from the above that there are specific allegations only against accused No. 1 to 4. Petitioner No. 2 (accused No. 5) reached the spot subsequently. Thus, the allegation that the accused No. 1 to 4 started beating the complainant on the instigation of petitioner No. 2 cannot be believed. Moreover, petitioner No. 2 is residing separately. He has no concern with the dowry or dowry articles of the complainant. Thus, a perusal of the FIR and the allegation if taken to be true, do not make out an offence under Section 498-A and 406 IPC against him. CRM No. M 14619 of 2009 5 In fact, a perusal of the FIR shows that vague and general allegations have been levelled against petitioner No. 2. The complainant has even levelled allegation of character against petitioner No. 2. The summoning of an accused is a serious matter and this powers should not be exercised mechanically. Another Single Bench of 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 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 CRM No. M 14619 of 2009 6 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 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 CRM No. M 14619 of 2009 7 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.” Even otherwise, allegation against petitioner No. 2 in the present case, does not inspire confidence. Allegation is not specific and is vague which does not constitute any offence against him. Moreover, he is residing separately. Lately, a tendency has developed for roping in all the relations in dowry cases in order to browbeat and pressurise the immediate family of CRM No. M 14619 of 2009 8 the husband. Accordingly, sometimes inflated and exaggerated allegations are made. Accordingly, the order dated 10.07.2008 passed by learned Judicial Magistrate Ist Class, Palwal summoning petitioner No. 2 under Section 498-A, 406, 506 of Indian Penal Code read with Section 34 of Indian Penal Code is set aside and the petition qua petitioner No. 2 is accordingly allowed to the said extent. (Nirmaljit Kaur) Judge November 12, 2010 mohan