Crl. Misc. No.M-8449 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-8449 of 2009 Date of Decision: 09.05.2011 Ashok Kumar ....Petitioner Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Vipin Mahajan, Advocate for the petitioner. Ms. Gurveen H. Singh, Addl. A.G., Punjab for the respondent-State. Mr. R.D. Sharma, 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 is a petition under Section 482 of the Cr.P.C for quashing of complaint dated 01.03.2005 filed by respondent No.2 along with the summoning order dated 06.05.2008 passed by the Judicial Magistrate Ist Class, Pathankot qua the petitioner, who is younger brother-in-law of the complainant. Brief facts of the case are that on 07.10.1995, the complainant was married to Darshan Kumar i.e. the brother of the petitioner according to Hindu rites and ceremonies. Out of this wedlock, one daughter was born. At the time of marriage, the husband of the complainant was working as Charge Mechanic in GREF. After the marriage, both husband and wife Crl. Misc. No.M-8449 of 2009 2 lived for some time at the place of posting of the husband and thereafter, the wife started living with her parents. The respondent-complainant filed a complaint dated 01.03.2005 under Sections 406, 498-A/34 IPC against all the family members of husband which included brother-in-law and married/unmarried sister in laws. A perusal of the complaint would envisage that the only allegation levelled against the petitioner is that on 03.10.1997, he and her husband tried to kill the complainant by pouring kerosene oil on her. The trial Court passed the impugned order dated 06.05.2008 summoning the petitioner to face trial for an offence under Sections 406, 498-A and 34 IPC. While praying for quashing of the complaint, learned counsel for the petitioner submitted that the allegations against the petitioner are false as he is a Sepoy/Vehicle Mechanic in GREF and has never been posted in the same station as his brother i.e the husband of the complainant. It is further stated that he is happily married and has no reason to interfere in the matrimonial life of his own brother. Moreover, the only allegation against the present petitioner in the complaint is that on 03.10.1997, the husband of the complainant and the petitioner tried to kill the complainant by pouring kerosene oil on her, whereas, in reply to Divorce petition and in the affidavit tendered by way of examination-in- chief, the aforesaid allegations of pouring kerosene oil is levelled against husband and mother-in-law. As such, the allegations are exaggerated and false. Learned counsel for respondent No.2, however, vehemently opposed the prayer made by learned counsel for the petitioner and submitted that there was specific allegation against the petitioner. He must prove that he was not present at the time when the incident occurred. Heard. The petitioner was appointed as Sepoy/Vehicle Mechanic in Crl. Misc. No.M-8449 of 2009 3 GREF on 02.02.1995 and was posted at Pune. Thereafter, he was transferred to many places i.e. Nagaland, Pathankot, Arunanchal Pradesh and at present, he is posted at Doda in the State of Jammu and Kashmir from May 2006. He was married to Komal Devi on 10.03.2002 and two children were born out of this wedlock and was also staying separately from the family of his mother. Moreover, it is evident from the written statement and affidavit filed by the complainant in the Divorce Petition filed by Darshan Kumar-her husband that the allegations were levelled only against her husband and his mother. In the present complaint, there are specific allegations against the petitioner that on 03.10.1997, he had tried to kill the respondent- complainant by pouring kerosene oil on her body, whereas, para 4(c) of the written statement on merits to the petition under Section 13 of the Hindu Marriage Act for a dissolution of marriage reads as under :- “4(c) That on 03.10.1997, the petitioner and his mother tried to kill the respondent by pouring kerosene oil on her body. The respondent started screaming which altered the neighbourer. The mother of the petitioner sagged the respondent so as to make her quiet and the petitioner and his mother developed cold feet and spared her, the respondent escaped miraculously.” In fact, the respondent-complainant tendered her affidavit dated 22.11.2006 by way of examination-in-chief before the Court of Additional District Judge/Presiding Officer, Fast Track Court, Gurdaspur in the petition under Section 13 of the Hindu Marriage Act for a dissolution of marriage, which reads as under :- “ On 03.10.1997, the petitioner and his mother tried to kill me by pouring kerosene on my body. I started screaming which altered the Crl. Misc. No.M-8449 of 2009 4 neighbourer. The mother of the petitioner gagged me so as to make her quiet and the petitioner and her mother developed cold feet and spared me. I escaped miraculously.” It is, therefore, the stand of the respondent-complainant herself that on 03.10.1997, it was her husband and mother-in-law who poured kerosene oil on her and tried to set her on ablaze. Learned counsel for the respondent-complainant has not been able to dispute this fact. Besides, the Additional District Judge, Gurdaspur, while allowing the petition under Section 13 of the Hindu Marriage Act filed by her husband, disbelieved the story put forward by her that his family had tried to set her on ablaze. Moreover, the incident mentioned by the respondent- complainant is of the year 1997, whereas, the respondent-complainant filed the complaint on 01.03.2005 i.e after a gap of almost eight years of the alleged occurrence. No allegation or complaint was ever made prior to this date. The 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 Crl. Misc. No.M-8449 of 2009 5 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 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 Crl. Misc. No.M-8449 of 2009 6 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 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 pressurise the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made. Coming back to the facts of the present case, the petitioner Crl. Misc. No.M-8449 of 2009 7 admittedly resides separately. He is a Sepoy in the Army. He remained posted in different places since the year 1995. He himself is happily married and has two children. The respondent-complainant has taken a totally different stand. A contradictory stand has been taken by her in the complaint and a totally different stand in the divorce petition. Even those allegations against the family were found to be false. The only allegation qua the present petitioner is of the incident relating to the year 1995. No complaint or a DDR was lodged at that point of time. The present complaint has been filed after a gap of almost eight years. Accordingly, the summoning order qua the petitioner in the complaint is totally unjustified and the complaint qua the petitioner is a clear abuse of process of Court. In the light of the judgment passed by this Court in the case of Divya alias Babli and others (supra), the present petition qua petitioner is allowed and complaint dated 01.03.2005 filed by respondent No.2 along with the summoning order dated 06.05.2008 passed by the Judicial Magistrate Ist Class, Pathankot qua the petitioner, who is younger brother- in-law of the complainant is hereby quashed. (NIRMALJIT KAUR) 09.05.2011 JUDGE gurpreet