Crl.Misc. No. M-36602 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Misc. No. M-36602 of 2009 Date of Decision: August 08,2011 Chirjev Singh and others ...........Petitioners Versus Kamaljit ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep Bansal, Advocate for the petitioners. None for the respondent --- Sabina, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure,1973 seeking quashing of complaint No. 38 dated 16.12.2004 (Annexure P1) and summoning order dated 16.2.2008 (Annexure P2). Learned counsel for the petitioners has submitted that petitioner No.1 was married to respondent on 25.2.2001. They stayed together as husband and wife for about two months. Thereafter, petitioner No.1 and respondent moved a petition under Section 13-B of the Hindu Marriage Act, 1955 ( for short `the Act') seeking dissolution of their marriage by way of mutual consent. The said petition was allowed and a decree of divorce was passed in Crl.Misc. No. M-36602 of 2009 2 favour of the parties vide judgment and decree dated 26.2.2003. Thereafter, respondent moved an application seeking recalling of the judgment and decree dated 26.2.2003. The said application was dismissed vide order dated 3.9.2008. Hence, the proceedings initiated by the respondent vide impugned complaint were liable to be quashed. None has appeared on behalf of the respondent despite service. After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition deserves to be allowed. Contents of the complaint (Annexure P2) read as under:- "1. That the marriage between the parties was solemnized on 25.2.2001 according to Sikh rites in village & P.O. Garhdiwala, Tehsil Dasuya, Distt. Hoshiarpur. 2. That on dated 6.4.2000, on ring cereony and Sagai & Kurmai the parents of the complainant spent Rs.2,04,000/- on the demand of accused party. a) Soft drinks, Tea, Sweets, Lunch for 80 persons from the side of accused party, Tent, Milk, Vegetables, ice etc. Rs.40,000/- b) Ladies suits 22, Blankets 23 Rs.10,500/- c) One golden Chain 15 Gms. Golden Ring 5 gms. to accused no.1 Golden Ring 5 Gms to accused no.3 mother-in-law, one golden ring 5 Gms to accused No.2 father-in-law cash Rs.500/- Total Rs. 18,500/-. Crl.Misc. No. M-36602 of 2009 3 d) Movie Album photo etc. Rs.6000/- On 24.2.2001 expenditure on Sagan e) 4 Tata sumo Fare from Garhdiwala to Pathankot Rs.6000/-. One maruti car fare Rs.1500/- one gold kara 17 Gms. to accused no.1 Rs, 10,220 cash Rs.500/-, Hero Handa (CBZ) Motor Cycle to accused No.1 costs Rs. 62,300/-, washing Machine Videocon Rs.10,000/-, Cooler Rs.3500/-, Godrej Almirah Rs.5000/- Furniture Rs.30,000/- to accused No. 1 to 4. 3. That the sufficient dowry was given to the accused party on the day of marriage on the demand of all the accused persons and the accused persons took all the dowry articles to their village. About 350 persons/Barati from the side of accused persons attended the marriage. Gold Ornaments were also given in this marriage. Gold Kara 15 gms to father-in-law accused No.2, Gold ring 5 gms to grandmother-in-law, Gold ring 5 gms to maternal uncle (mama) Gold ring 5 gms to sister-in-law (Nand) accused No.4, one pair of gold balian 6 gms to accusd No.3 mother-in-law, Galey da har 25 gms one pair of gold balian 10 gms Gold ring ½ tola, Silver payal to complainant. Kisan Vikas Patra Rs.50,000/- Ladies Suits 23, Blankets 23, corian blankets 2 for miln-I Movie photo Album, breakfast, lunch,Cold drinks, Tent etc. Total expenditure Rs. 2,29,400/-. All the gold ornaments belonging to complainant were taken into custody by the accused no. 1 Crl.Misc. No. M-36602 of 2009 4 to 3 after 10 days of marriage saying that the same may be given to the complainant on special occasions in their family,but they never gave same to the complainant for her use. These ornaments were specially given to the complainant for her personal use as her Istri Dhan. All the gold ornaments and the other articles detailed above are lying in the illegal custody of accused persons and they are misusing and misappropriating the same without any legal right. The list of the above said dowry articles was also prepared by the complainant and one copy of the same was also given to the accused persons. 4. That all the accused persons were not satisfied with quantum of dowry articles. Soon after the marriage the accused persons started pressurizing the complainant to bring a sum of Rs. 1,00,000/- from her parents for purchase of car and when ever the complainant refused to fulfill their demands, all the accused always beaten up her mercilessly and dragged her out from the matrimonial house. In fact, to meet the demand of the accused, the father of the complainant gave Rs.1,00,000/- to accused No.1 on 8.4.2001, for purchase of car two months after solemnizing the marriage of the parties. Many times the complainant brought cash from her parents and paid the same to accused no.1 and whenever she refused to fulfill his demand of cash amount, accused no.1 always used to maltreat and beat her mercilessly and dragged her out from the matrimonial house and many times she was brought Crl.Misc. No. M-36602 of 2009 5 back by her parents in the matrimonial house with the intervention of respectable persons. 5. That on receipt of Rs.1,00,000/- and other cash Rs. 10,000/- the accused were still not happy with the dowry articles, ornaments and cash given to them by the parents of complainant. They again started maltreating and beating the complainant mercilessly and turned out from matrimonial house after giving severe and mercilessly beatings in three clothes in the month of Oct, 2001. 6. That the complainant told about all the inhuman behaviour of the accused party to her parents, the father of the complainant went to the house of the accused alongwith the complainant in the month of Nov. 2001 and they agreed to rehabilitate the complainant in their house after great persuasion. 7. That the behaviour of the accused No.1 and his family members have not been changed and they again started demanding cash from the complainant and the complainant was compelled to withdraw her Kisan Vikas Patra, worth Rs.50,000/- purchased by her father in her name and after drawing the above said money the complainant paid the same to the accused No.1. Inspite of this the accused No.1 and his family members were not satisfied. 8. That in the month of May 2002, after tortuing the complainant mentally as well as physically the respondent & his family again turned out the complainant from her matrimonial house and threatened her that in case she Crl.Misc. No. M-36602 of 2009 6 dared to come to their house without getting Rs.2,00,000/- from her parents she will not be allowed to enter in the matrimonial house. The parents of the complainant alongwith the Khangi Panchayat and other respectables went to the house of the accused and great persuasion the accused No.1 and his parents agreed to rehabilitates the complainant in their house. 9. That the complainant was pregnant and came to the knowledge of accused No.1 and his family, the accused No.1 took away the complainant to Ludhiana to a Doctor Clinic on 27.2.2003 at Village Haido near Machhiwara and got aborted intention to get divorce from the complainant because the accused No.1 wanted to solemnize his second marriage with some other girl. 10. That thereafter, the accused No.1 got the signature of complainant on various blank papers fraudulently by telling her that he is going to purchase a plot in her name and further he would transfer the registration of Truck owned by him in the name of complainant and obtained divorce decree on 26.2.2003 from the court of Sh.A.K.Sharma, Distt. Judge, Gurdaspur, while the complainant was living with the accused No.1 which has now been challenged by the complainant when she came to know about the said impugned order. 11. That in the month of April 2004, the accused No.1 and his family members finally turned out the complainant after beating her mercilessly from the matrimonial house saying Crl.Misc. No. M-36602 of 2009 7 that divorce has already been obtained by accused no.1 as such she has no right to live in the house of accused. Since then the complainant is residing at her parental house. While turning out the complainant from her matrimonial house she was pregnant and thereafter on 26.11.2004 she gave birth to a male child namely Eknoor Singh at Nursing Home Hoshiapur and all the expenses of delivery has been borne by the parents of complainant. The message has been conveyed to accused no.1 and his family members about the birth of a male child, but no body came to see the newly born child from accused family. 12. That during the stay with accused No.1, the complainant tried her best to make understand the accused persons being good wife but accused persons always misbehaved with her beat her & treated her with grebe nature of cruelty physically as well as mentally. Accused No. 1 always used to beat her mercilessly. Accused no.1 has been doing this act of cruelty under the influence of liquor and deserted her without any sufficent cause or reason and since April 2004 she is living with her parents in Ward No.6, Garhdiwala. 13. That all the dowry articles as fully detailed in para no.2 of the complaint are still lying in the illegal custody of all the accused persons and all the accused persons are still using the same without any legal right. Accused No.1 namely Chirjeev Singh misusing Golden kara, Golden Chain, ring, Hero Honda (CBZ) Motorcycle, cooler, Almirah and Crl.Misc. No. M-36602 of 2009 8 furniture. The accused No. 2 Kulwant Singh is misuing gold ring, gold Kara, accused no.3 Ranjit Kaur is misuing one pair of gold Balian and gold ring and accused no.4 Amandeep Kaur is misuing one gold ring and furniture and accused No.5 Davinder Kaur and accused No.6 Avtar Singh misusing the suits and blankets. The accused No. 3 & 4 are also misusing the gold ornaments belonging to complainant i.e. Galey Da Haar 25 gms one pair of gold Balian 10 gms, ring 5 gms, silver payal. Accused No. 1 to 4 also misusing the washing machine videocon, Almirah, Furniture given in this marriage. 14. That the complainant & her parents have requested to the accused to return the above said dowry articles in the month of Oct. 2004 but all the accused refused to return the same to the complainant. 15. That all the dowry articles were given to accused persons on the day of Ring Ceremony, Sagan and marriage in village Garhdiwala,PS Garhdiwala Teh. Dasuya, Distt. Hoshiarpur and all the accused took the same to their village Pathankot, P.S.Pathankot, Distt. Gurdaspur and the accused persons demanded dowry articles in village Pathankot, P.S.Pathankot, Distt. Gurdaspur and maltreated the complainant there, hence, this Hon'ble Court has got jurisdiction to try and decide the present complaint. 16. That the matter was reported to the police of P.S.Garhdiwala but the police of P.S.Garhdiwala refused to take any action against the accused persons and advised to Crl.Misc. No. M-36602 of 2009 9 approach the court. 17. That court fee of Rs. Is affixed upon the complaint. 18. That this is the Ist complaint and no such complaint is pending or has been decided in between the parties in any court of law." In para 10 of the complaint, the respondent has averred that she had been made to sign on some blank papers and on the basis of the same, the decree dated 26.2.2003 had been passed whereby the marriage between respondent and petitioner No.1 was dissolved. A perusal of the judgment dated 26.2.2003 reveals that a joint petition had been filed by petitioner No.1 and respondent seeking a decree of divorce on the basis of mutual consent. The case of the parties was that they had lived together as husband and wife for two months and,thereafter, they were residing separately due to some temperamental incompatibility. Complainant- respondent had also appeared in the Court and had made a statement in support of the petition. On 26.2.2003, parties again appeared before the Court and made statements that the decree of divorce be passed in their favour. On the basis of the statement made by the parties, the petition under Section 13-B of the Act was allowed and a decree of divorce was passed in favour of petitioner No.1 and respondent on the basis of mutual consent. Thereafter, the respondent moved an application seeking recalling of the judgment and decree dated 26.2.2003. While deciding issue No.1, it was held that the application was not maintainable and no grounds for review were made out. In the said proceedings also, the respondent-complainant admitted her Crl.Misc. No. M-36602 of 2009 10 signatures on the affidavit filed in support of the petition under Section 13-B of the Act and identified her signatures on the power of attorney. Respondent-complainant admitted that she had accompanied petitioner No.1 and had appeared before the Court and identified her signatures on the statement made before the Court dated 26.2.2003 and 3.8.2002. In these circumstances, the plea taken by the complainant that she had been made to sign on blank papers on the pretext that a truck was to be bought is without any basis. It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Crl.Misc. No. M-36602 of 2009 11 (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. Crl.Misc. No. M-36602 of 2009 12 (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Thus, in the present case, the continuation of criminal proceedings would be nothing but an abuse of process of law as the parties had got a decree of divorce on the basis of mutual consent and, thereafter, the complaint in question has been filed by the complainant in the year 2004. Accordingly, this petition is allowed. Complaint dated 16.12.2004(Annexure P1) and all subsequent proceedings arising thereto including the summoning order dated 16.2.2008 (Annexure P2) are quashed. (SABINA) JUDGE August 08, 2011 arya