Criminal Misc. No. M-5948 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-5948 of 2008 Date of Decision: 06.05.2010 1. K.C. Bhagat son of Late Sh. Beli Ram, aged about 75 years; 2. Shanti Devi wife of Sh. K.C. Bhagat, aged about 65 years; both residents of H. No. F-483, Nitco Lane, Talab Tillo, Jammu. 3. Dr. Satish Nauhria son of Sh. Daulat Ram, aged about 51 years; 4. Savita Nauhria wife of Dr. Satish Nauhria, aged about 49 years; both residents of HIG 452, Jamalpur Colony, Near Focal Point, Ludhiana. 5. Abdul Rashid s/o Sirajuddin, aged about 65 years, resident of H. No. 3, Gujjar Nagar, Jammu. ... Petitioners Versus Dr. Bimla Bhagat wife of Dr. Suresh Bhagat, r/o Bhargav Camp, Jalandhar, at present residing at Govt. Girls Medical College Hostel, Jammu. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Piyush Kant Jain, Advocate, for the petitioners. Mr. Sudhir Paruthi, Advocate, for the respondent. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Misc. No. M-5948 of 2008 2 Criminal Complaint No. 139/107, dated 29.08.02 (Annexure P3), titled as, 'Dr. Bimla Bhagat Vs. Dr. Suresh Bhagat & others', under Sections 120-B, 427, 452, 494, and, 506 IPC, the summoning order dated 15.11.07 (Annexure P8), passed by the Court of Judicial Magistrate 1st Class, Jalandhar, and all the subsequent proceedings, arising therefrom, has been filed by the petitioners. 2. The facts, in brief, are that, the marriage, between Dr. Bimla Bhagat, complainant, and, Dr. Suresh Bhagat, co-petitioner (non-applicant) was solemnized, on 17.09.88, at Jalandar, as per Hindu religious rites and ceremonies. After the marriage, they lived together, as husband and wife, at Jammu. However, no issue, was born, out of this wedlock. In the year 1998, Dr. Suresh Bhagat, filed a divorce petition, against the complainant, in the Court of District Judge, Jammu, but, the same, was dismissed, on the ground of jurisdiction. Thereafter, he filed another divorce petition, in the Court of District Judge, Jalandhar. On 07.08.02, when the complainant came to visit her parents, at Jalandhar, Sh. Nagarmal son of not known, resident of Vikas Lane, Talab Tillo, Jammu, approached her and told her, that Dr. Suresh Bhagat, converted himself, as Muslim, on 04.02.02, and entered into a marital contract with his daughter Sunita, at Jammu, under Muslim Law. Thereafter, the complainant, tried to contact the family members of Suresh Bhagat, on telephone, but, petitioners No. 1 and 2, maltreated her by using filthy language. On 22.08.02, when the complainant, went to the house of her parents, at Jalandhar, at about 8.00 PM, Suresh Criminal Misc. No. M-5948 of 2008 3 Bhagat, alongwith petitioners No. 1 to 4 and some unknown anti- social elements, came there, and, told that he wanted to resolve the matter. But, after entering into the house of the complainant's parents, Suresh Bhagat and petitioner No. 2, namely Shanti Devi, shouted that, in order to get rid of her (complainant), he (Suresh Bhagat), performed marriage with Sunita, co-petitioner (non-applicant), after converting himself as a Muslim. They even threatened the complainant and her family members with dire consequences, if she did not agree for the divorce. When the members of the complainant party, tried to pacify the accused, by making them understand, that the second marriage, was illegal and void, they got enraged. Thereafter, the parents of the complainant, called their neighbourers, on seeing whom, the accused, got more agitated and started damaging the articles lying nearby. In a fit of anger, Suresh Bhagat, threw paper weight, towards the complainant, which in turn broke the center table. The other accused too manhandled the complainant and her family members. Thereafter, the accused, left the spot, proclaiming that, they could do, whatever they wanted, as their brother, had good say, in all departments, being a Chief Judicial Magistrate. On the next day, the complainant, went to Police Division No. 6, Jalandhar, and made a written complaint, against the accused, but in vain. Ultimately, left with no other alternative, the aforesaid complaint, was filed. 3. After recording the preliminary evidence, the trial Court, summoned the accused, to face trial, for the offences, punishable Criminal Misc. No. M-5948 of 2008 4 under Sections 427, 451, 494, and, 506 IPC. 4. Feeling aggrieved, the instant petition, has been filed, by the petitioners. 5. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 6. The Counsel for the petitioners, submitted that, the perusal of the allegations, contained in the complaint, do not constitute an offence, punishable under Section 494 IPC, against the petitioners, as there is not even a whisper, against them, in the said complaint, that they abetted the commission of offence, punishable under Section 494 IPC, by Dr. Suresh Bhagat (non-applicant). He further submitted that, the allegations, regarding the commission of offences, punishable under Sections 427, 452, and, 506 IPC, have been dishonestly and falsely levelled, against the petitioners, by the complainant. He further submitted that, no occurrence, dated 22.08.02, took place. He further submitted that, the complainant, as a counter-blast, to the divorce petition, which was filed, by Dr. Suresh Bhagat, against her, on 19.12.2000, filed the complaint, referred to above. He further submitted that, petitioner No. 1, is the father-in- law, petitioner No. 2, is the mother-in-law, petitioner No. 3, is the brother-in-law, petitioner No. 4, is the wife of brother-in-law, and, petitioner No. 5, is said to be a conspirator. He further submitted that, the Court below, without application of mind, to the facts and circumstances of the case, illegally summoned the petitioners, for the aforesaid offences. He further submitted that, even no enquiry, was Criminal Misc. No. M-5948 of 2008 5 made, by the concerned Magistrate, before summoning the accused, under Section 202 Cr.P.C., though, all the petitioners, belonged to a place, beyond the jurisdiction of Jalandhar Courts. He further submitted that the alleged incident dated 22.08.02 formed a distinct incident and a separate complaint with regard to the same was required to be filed. He further submitted that complaint and the summoning order, are nothing, but an abuse of process of the Court. 7. On the other hand, the Counsel for the respondent, submitted that, Dr. Suresh Bhagat, during the subsistence of his first marriage with the complainant/respondent, converted himself, as a Muslim, and, performed second marriage with Sunita. He further submitted that, all the petitioners, being the near relations of Dr. Suresh Bhagat, connived with him and facilitated his second marriage, during the subsistence of the first marriage. He further submitted that, the incident, dated 22.08.02, actually took place, in which, the petitioners, participated. He further submitted that, the trial Court, was right, in summoning the accused, for the aforesaid offences, in the complaint. He further submitted that the complaint and the summoning order, are not the abuse of process of the Court. 8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. The perusal of the allegations, contained in the complaint (Annexure P3), does not attribute any role, to the petitioners, in facilitating the marriage of Dr. Suresh Bhagat with Criminal Misc. No. M-5948 of 2008 6 Sunita, during the subsistence of his first marriage with the complainant. In para 4 of the complaint, it was stated, by the complainant, that on 07.08.02, when she came to visit her parents, at Jalandhar, Sh. Nagarmal son of not known, resident of Vikas Lane, Talab Tillo, Jammu, approached her and told her, that Dr. Suresh Bhagat, converted himself, as Muslim, on 04.02.02, and entered into a marital contract with his daughter Sunita, at Jammu, under Muslim Law. There is nothing, in the complaint, that petitioners No. 1 to 4, the near relations of Dr. Suresh Bhagat, or, petitioner No. 5, were present, at the time of the alleged marriage of Dr. Suresh Bhagat with Sunita. There is also nothing, in the complaint, that the petitioners, in any way, connived with Dr. Suresh Bhagat, in facilitating his marriage with Sunita, during the subsistence of his first marriage with the complainant. The allegations, contained in the complaint, therefore, do not constitute any offence, punishable under Section 494 IPC, against the petitioners. The Court, is not required, to look into any other document, at this stage, except the complaint, to find out, as to whether, any offence, is made out, against the accused, or not. The petitioners, therefore, did not allegedly commit any offence, punishable under Section 494 IPC, as the same, is not constituted, from the allegations, contained in the complaint. 9. The incident dated 22.08.02, was completely separate and distinct. It had no relevance with the first incident nor it was a part of the same transaction. Separate complaint was required to be filed, in respect of the said incident. One complaint with regard to two Criminal Misc. No. M-5948 of 2008 7 incidents, that too different and distinct, and happened on different occasions, after a gap of many years, could not be maintained. On this ground, the proceedings are liable to be quashed. 10. Assuming for arguments that one complaint with regard to both the incidents could be filed, it may be stated here, that the allegations, in para 6 of the complaint, regarding the incident of 22.08.02, appear to be exaggerated. According to the allegations, in the complaint, the petitioners, entered the house of her (complainant's) parents, when she had come there, to meet them, and threatened her and her family members with dire consequences, if she did not agree for the divorce. Further allegations, in para 7 of the complaint, are that, the accused, started throwing the articles, lying in the house. It is unimaginable, that the petitioners, residents of a far off place, at Jammu, would come, to the house of the parents of the complainant, at Jalandhar, and threaten them with dire consequences, or cause damage to the articles. Such allegations, were apparently, made by the complainant, just out of grudge, as a divorce petition, had been filed, against her, by Dr. Suresh Bhagat (non-applicant). These allegations, against the petitioners, appear to be inherently improbable, and have been made, just with a view to harass them. 11. The amended provisions of Section 202 Cr.P.C., read as under:- “Postponement of issue of process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section Criminal Misc. No. M-5948 of 2008 8 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.” The words introduced by amendment as highlighted are:- “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction.” 12. Since the petitioner, were residents beyond the local Jurisdiction of Jalandhar Court, the Magistrate, was required, to hold an enquiry, before the issuance of process as per the afore-extracted provision of Section 202 Cr.P.C. The purpose behind this amendment, could be noticed, from the draft, accompanying the same, which reads as under:- “False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” 13. The words “if he thinks fit”, occurring before Criminal Misc. No. M-5948 of 2008 9 postponement of the issue of process in the unamended Section 202 give clear indication about the option before a Magistrate, to issue process or postpone the issue of the same, in his discretion, without holding an enquiry. This discretion now would not be available with the Magistrate, in cases, where amendment, is made applicable. In nutshell, the Magistrate, would now be under obligation, to enquire into a case, either himself, or direct investigation, to find out, whether or not, there was sufficient ground, for proceeding against an accused, when he resides, at a place, beyond his area of jurisdiction. This is the only change introduced in the provision. In the instant case, no such, enquiry before the issuance of process, was held, by the Magistrate. Under these circumstances, the Judicial Magistrate 1st Class, Jalandhar, acted contrary to the mandatory to the amended provisions of Section 202(i) Cr.P.C. Since the continuance of the complaint, and the summoning order, as also the subsequent proceedings, is nothing, but an abuse of process of the Court, the same, are liable to be set aside. 14. For the reasons recorded above, Criminal Misc. No. M- 5948 of 2008, is accepted. Criminal Complaint No. 139/107, dated 29.08.02 (Annexure P3), titled as, 'Dr. Bimla Bhagat Vs. Dr. Suresh Bhagat & others', under Sections 120-B, 427, 452, 494, and, 506 IPC, the summoning order dated 15.11.07 (Annexure P8), passed by the Court of Judicial Magistrate 1st Class, Jalandhar, and all the subsequent proceedings, arising therefrom, are quashed, qua the petitioners. Criminal Misc. No. M-5948 of 2008 10 15. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned. 06.05.2010 (SHAM SUNDER) Amodh JUDGE