IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Cr.MMO No. 98 of 2011. Judgment reserved on: 2.9.2011 Date of decision: 15.10.2011 _______________________________________________________ Nek Chand ….. Petitioner. Versus Bindu Bala …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Petitioner : Mr. Anup Rattan, Advocate. For the Respondent : Mr. Dilip K. Sharma, Advocate. Kuldip Singh, J The petitioner has prayed for quashing of Cr.M.A. No.5/2 of 2007 pending in the Court of learned Judicial Magistrate Ist Class, Solan and for setting aside summoning order dated 8.12.2009 in that case. 2. The facts, in brief as per petitioner are that petitioner and respondent were married on 9.5.2002. The marriage was not smooth, respondent filed petition for dissolution of marriage which was allowed by learned Addl. District Judge, (Presiding Officer, Fast Track Court), Solan on 10.3.2006. This was challenged in the High Court by way of appeal which was disposed of in terms of application filed under Section 13-B of the Hindu Marriage Act read with Order 23 Rule 3 CPC in FAO No.150 of 2006 on 11.9.2006. ____________________ Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 3. The respondent in order to harass the petitioner after the judgment dated 11.9.2006, filed complaint before learned Judicial Magistrate, Solan claiming articles mentioned in para-2 of the impugned order dated 8.12.2009. It has been stated that learned Judicial Magistrate without considering the provisions of Sections 403 and 406 IPC and without considering the application under Section 13-B of the Hindu Marriage Act, 1955 ( for short Act) issued process to the petitioner and is continuing with the proceedings which is abuse of process of law. It has been alleged that at the time of passing of decree of divorce by way of mutual consent, the respondent herself abandoned the claim on the articles mentioned in the complaint filed before the Court below. It was agreed in the previous proceeding not to give or take anything. 4. The petitioner has not dishonestly misappropriated the property of the respondent. The respondent had herself abandoned her claim with respect to any joint property or articles received at or about the time of marriage, at the time of entering into mutual consent divorce. Once the parties have settled their family dispute they cannot turn around and claim the articles as mentioned in the complaint. The remedy available to the respondent was under Section 27 of the Act. The learned Judicial Magistrate has erred in considering the articles mentioned in the complaint as “Istri Dhan”. 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the petitioner has reiterated what has been stated in the petition and has relied Balkrishna Ramchandra Kandam v. Sangeeta Balkrishna Kadam, …3… AIR 1997 (84) SC 3562, Parminder Kaur vs. State of Uttar Pradesh and another (2010) 1 SCC 322 and Kishan Singh( dead) through LRs. vs. Gurpal Singh and others (2010) 8 SCC 775. He has submitted that petitioner has committed no offence under Section 406 IPC. The continuation of the proceedings in the Court below is abuse of process of law. On the contrary learned counsel for the respondent has submitted that the learned Judicial Magistrate has properly appreciated the material on record. The petitioner has not returned the articles of the respondent. He has supported the order dated 8.12.2009. He has relied Mansha Ram Vashist & Ors. Vs. State of H.P. & Ors. Latest HLJ 2010 (HP) 656. 6. The respondent filed complaint under Sections 403, 406 IPC, in which it has been stated that she had demanded her articles mentioned in para-2 of the impugned order from petitioner several times. The petitioner on 30.9.2006 finally refused to return the said articles. The complaint was filed on 10.11.2006. It has been stated in the complaint that Section 27 of the Act was not invoked as the petitioner had always assuring that he would return the articles. The respondent never thought of any dishonesty or wrongful motive or design of the petitioner in delaying the matter, therefore, after refusal of the petitioner to return the articles on 30.9.2006 the necessity to file the complaint has arisen. 7. The preliminary evidence was recorded in which respondent examined herself as PW-1 and her father Sukh Ram as PW-2. After preliminary evidence on 31.1.2007, the learned Judicial Magistrate directed the SHO, Dharampur or his subordinate to …4… conduct enquiry in the matter. The order dated 15.12.2007 of the learned Judicial Magistrate indicates that the report was received and the learned Judicial Magistrate summoned the petitioner vide order dated 8.12.2009. 8. The learned counsel for the petitioner has submitted that the marriage between the parties was finally dissolved in FAO No.150 of 2006 on 11.9.2006 by way of mutual consent in accordance with the terms of CMP No.1081 of 2006. He has submitted that para 2-C of the CMP No.1081 of 2006 provides that petitioner/respondent will not take or give anything to each other and have no liability to pay anything towards each other in lieu of dissolution of marriage. This clause has been reproduced by learned Judicial Magistrate in para-8 of the impugned order. The learned counsel for the petitioner has submitted that in view of aforesaid para 2-C of CMP No.1081 of 2006 in FAO No.150 of 2006 the respondent has no right to demand articles mentioned in para-2 of the impugned order. He has submitted at the most the petitioner could invoke Section 27 of the Act but at the time of mutual divorce coupled with long silence the respondent has abandoned her right, if any over articles mentioned in para-2 of the impugned order. 9. In order to invoke Section 482 Cr.P.C. it is to be established by the petitioner that no case is made out for issuing process on the basis of material on record. At the stage of summoning what is to be seen is whether on the basis of complaint and preliminary evidence material is on record for summoning the accused. It has been submitted on behalf of the petitioner that …5… respondent has abandoned her right, if any in the articles. On the contrary it has been contended on behalf of the respondent that Section 27 of the Act was not invoked in the divorce proceedings as petitioner never contemplated that petitioner would not return her articles on demand or he would turn dishonest. She requested petitioner, who finally refused to return the articles on 30.9.2006, thereafter the complaint was filed. These are the contentious issues which will be gone into during trial. The Clause 2C of CMP No. 1081 of 2006 in FAO No. 150 of 2006 has nothing to do with the alleged items mentioned in para 2 of order dated 8.12.2009. The respondent has not claimed anything from petitioner in lieu of dissolution of marriage. The respondent has filed the complaint asserting her right over articles mentioned in the complaint and allegedly misappropriated by petitioner. The learned Judicial Magistrate after preliminary evidence got the matter enquired from the police and only thereafter has issued the process. The case law relied by the learned counsel for the petitioner and noticed above in the facts and circumstances of the case is not applicable. 10. On the other hand in Mansha Ram Vashist & Ors. Vs. State of H.P. & Ors Latest HLJ 2010 (HP) 656, it has been held that in case there are allegations against the petitioners in the statements of the complainant and others, it cannot be said that the powers under Section 482 Cr.P.C. should be exercised by this Court and it should quash the proceedings. On the basis of complaint and preliminary evidence, it cannot be said that no case for summoning the petitioner is made out. There is no merit in the petition. …6… 11. In view of above discussion, petition fails and is accordingly dismissed. The parties through their counsel are directed to appear before learned trial Magistrate on 14.11.2011. The record be sent back immediately so as to reach before the date fixed. Cr.MP No.429 of 2011 is disposed of in view of disposal of main petition. October 15, 2011. (Kuldip Singh), (sks) Judge.