Crl. Misc. No.M-51 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-51 of 2009 Date of Decision: 17.08.2010 Bagh Mohammad & others ....Petitioners Versus Nasiban and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. H.S. Rakhra, Advocate for the petitioners. Mr. A.S. Jattana, Advocate for respondent No.1. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 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 Cr.P.C. for quashing of Complaint titled as Nasiban wife of Gulzar Khan vs Gulzar Khan and others under Sections 406, 498-A and 120-B IPC and Dowry Prohibition Act at Police Station Malerkotla pending before the Court of Sub Divisional Judicial Magistrate, Malerkotla and summoning Order dated 08.04.2005 and all consequential proceedings arising thereto. Brief facts of the case are that Bagh Mohammad and Bashira i.e. petitioners No.1 and 2 are Jeth and Jethani, who have been married for the past 25 years and Shamshad and Salamat i.e. petitioners No.3 and 4 are also Jeth and Jethani, who have been married for the past about 20 years and petitioner No.5-Ajmad is the nanand, who has been married for Crl. Misc. No.M-51 of 2009 2 more than 30 years, whereas, petitioner No.6-Naziran is the mother-in-law who is 70 years of age and it was in the year 2003, the present complaint was filed by the respondent/complainant i.e. after about 12 years of desertion of the house of her husband. The facts in the present petition are not disputed. It has been opposed only on the ground that the respondent- complainant had filed execution for recovery of ` 74,500/-, which is pending till date. Gulzar Khan, husband of the complainant gave statement on 24.05.2009 before the Executing Court and assured to make the payment of entire maintenance and he was directed to appear before the Court of Sub Divisional Judicial Magistrate, Malerkotla on 30.05.2009 but he has neither made the payment nor appeared. Till date, dowry articles have not been returned by the petitioner and co-accused. Thus, the present petition is liable to be dismissed. Learned counsel for the parties are heard. The fact that the co-accused Gulzar Khan, who is the husband of the complainant is not appearing before the trial Court and that he has not paid the maintenance, cannot be a ground to hang the present petitioners under Sections 406, 498-A and 120-B IPC. Gulzar Khan, the co-accused of the petitioners filed Crl. Misc. No.M-33989 of 2010 for quashing of the same FIR, which has been very fairly withdrawn by the learned counsel for the petitioner and accordingly, the same was ordered to be dismissed as withdrawn by an order of even date passed in Crl. Misc. No.33989 of 2010. All the petitioners, herein, namely, Bagh Mohammad and Bashira i.e. petitioners No.1 and 2, Shamshad and Salamat i.e. petitioners No.3 and 4 and petitioner No.5-Ajmad i.e. the nanand of the complainant/respondent and Gulzar Khan were residing separately. The ration card of petitioners No.1, 3 and 5 is at P-2, P-3 and P-4, respectively. Crl. Misc. No.M-51 of 2009 3 The complainant was married to Gulzar Khan about 19 years back and she left the house of the in-laws about 16 years back when the child was of four months. The said child, namely, Dilbar is now of about 16 years old and as per the own statement of the complainant, Dilbar was born on 09.05.1992. Admittedly, the complaint itself has been filed after about 11 years of desertion by the wife and that too after divorce from her husband and it is an admitted fact that the complainant is getting the maintenance from her husband and the matter regarding dowry and other articles has already been settled at the time of divorce which took place at Malerkotla through Court in the year 2003. 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 Crl. Misc. No.M-51 of 2009 4 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 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 Crl. Misc. No.M-51 of 2009 5 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.” It is evident from the perusal of the complaint that the allegations are vague. No specific offence has been attributed to any of the petitioners. The said offence under Sections 406, 498-A and 120-B IPC is not made out. The complaint is also silent with respect to divorce which was granted by the Civil Court at Malerkotla. It is not denied that the petitioners No.1 to 5 are residing separately. It is not disputed that the complaint itself has been filed after about 11 years of desertion by the wife and that too after divorce from her husband. Petitioners no.1 and 2 are Crl. Misc. No.M-51 of 2009 6 married for the past 25 years, petitioners No.3 and 4 are married for the past 20 years and petitioner No.5 is married for more than 30 years and are staying separately. The complaint qua the present petitioners is, therefore, an abuse of process of law in the facts of the present case and deserves to be quashed. Lately, a tendency has developed for roping in all the relations in dowry cases in order to browbeat and pressurize the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made. Accordingly, Complaint titled as Nasiban wife of Gulzar Khan vs Gulzar Khan and others under Sections 406, 498-A and 120-B IPC and Dowry Prohibition Act at Police Station Malerkotla pending before the Court of Sub Divisional Judicial Magistrate, Malerkotla and summoning Order dated 08.04.2005 and all consequential proceedings arising thereto qua the present petitioners only are, hereby, quashed. (NIRMALJIT KAUR) 17.08.2010 JUDGE gurpreet