Distant relatives 498A quashed with Section 482 Cr.P.C

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.

Crl. Misc. No.M-29612 of 2008
Date of Decision: 03.02.2012

Dalpreet Singh and others….Petitioners
Versus
State of Punjab and others…Respondents

CORAM : Hon’ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Naresh Kaushik, Advocate for the petitioners.

Mr. K.S. Sidhu, D.A.G., Punjab for the respondent-State.
Mr. Narinder Lucky, 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 the Order dated 09.09.2008 passed by the Additional Sessions Judge, Jalandhar, whereby, the revision preferred against the Order dated 30.05.2008 passed by Additional Chief Judicial Magistrate, Jalandhar dismissing prosecution application under Section 319 of the Cr.P.C has been allowed.

While praying for quashing of the Order dated 09.09.2008 passed by the Additional Sessions Judge, Jalandhar, learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the matrimonial dispute on account of their being a relatives of the husband of the complainant. In the FIR, the entire family members including the distant relatives have been enroped. As a matter of fact, the husband of the complainant is living abroad. The petitioners have no role in the family life of the complainant.

Learned counsel for the respondent-complainant, on the other hand, submitted that the charges have already been framed against the petitioners and they can challenge the said charges before the Competent Court. The present petition was not maintainable. She was living at the mercy of petitioners because her husband was abroad.

The earlier investigation was done against the petitioners by the police in connivance with each other. There are specific allegations. As such, the Additional Sessions Judge, Jalandhar has rightly set aside the Order of Additional Chief Judicial Magistrate, Jalandhar after going through the entire record of the file.

Heard.

The petitioner No.3 is the brother of the husband of the complainant, whereas, petitioners No.1 and 2 are the sons of petitioner No.3 i.e they are the nephews of the husband of the complainant. As per the FIR, the petitioners No.1 and 2 were studying in Class 10th and 12th, respectively at the time of the marriage. The complaint has been filed after two years of the marriage. Thus, the petitioners No.1 and 2 were too young at the time of the marriage, as well as, till the time, the said complaint was filed.

While dismissing the application under Section 319 of the Cr.P.C., the Additional Chief Judicial Magistrate, Jalandhar had duly noticed as under :-

” In the present case, when there is no specific allegations of any demand of dowry by any of the persons mentioned in the application nor there is any specific evidence of entrustment of any Istridhan articles to any of those persons, no ground is made out to summon the above mentioned persons as additional accused.” The Additional Sessions Judge, Jalandhar, however, while setting aside the order and summoning the petitioners to face trial under Sections 498-A and 323 IPC, held as under :-

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” It may be true that there are no specific allegations of entrustment of dowry or misappropriation of dowry by Piara Singh, Dilpreet Singh, Kamalpreet Singh and Avtar Singh, as observed by the learned trial Court in the impugned order, yet the allegations, noted herein above, which have been reiterated by the complainant on solemn affirmation in her statement before the Court cannot be brushed aside without any rhyme or reason and in so light a manner as they have appear of having been so done in the impugned Order.” Surprisingly, the Additional Chief Judicial Magistrate, Jalandhar, though had held that there was no specific allegation or entrustment, ignored the well settled proposition of law with respect to the summoning under Section 319 of the Cr.P.C.

In Michael Machado and another v. Central Bureau of
Investigation and another, 2000(2) RCR (Criminal) 75, considering the
basic requirements of Section 319 of the Code, Court said:
“The basic requirement for invoking the above Section
is that it should appear to the Court from the evidence
collected during trial or in the inquiry that some other
person, who is not arraigned as an accused in that
case, had committed an offence for which that person
could be tried together with the accused already
arraigned. It is not enough that the Court entertain
some doubt, from the evidence, about the involvement
of another person in the offence. In other words, the
Court must have reasonable satisfaction from the
evidence already collected regarding two aspects. First
is that the other person has committed an offence.
Second is that for such offence that other person could
as well be tried along with the already arraigned
accused.”

In Krishnappa v. State of Karnataka reported as 2004 (4) RCR
(Criminal) 678, the Court ruled that the power to summon an accused is
an extraordinary power conferred on the Court and it should be used very
sparingly and only if compelling reasons exist for taking cognizance against
the person other than the accused.

Learned counsel for the petitioners further relied on the
judgement of the Apex Court rendered in the case of Sarabjit Singh and
another v. State of Punjab and another reported as 2009(3) RCR
(Criminal) 388. Para 17 of the said judgement reads as under:-

“17. The provision of Section 319 of the Code, on a
plain reading,provides that such an extraordinary case
has been made out must appear to the court. Has the
criterion laid down by this Court in Municipal
Corporation of Delhi (supra) been satisfied is the
question? Indisputably, before an additional accused
can be summoned for standing trial, the nature of the
evidence should be such which would make out
grounds for exercise of extraordinary power. The
materials brought before the court must also be such
which would satisfy the court that it is one of those
cases where its jurisdiction should be exercised
sparingly.

We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:

“…Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court…” An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.”

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Hon’ble the Supreme Court in Sarabjit Singh’s case (supra) also held that unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz. (i) an extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. The Additional Sessions Judge, Jalandhar fell in error while summoning the present petitioners, in spite of the fact that there was no specific allegation against the present petitioners and further that there was no other evidence except the statement of the complainant which was a repetition of the statement before the Investigating Officer. In any case, the present petitioners are the brother and the nephews of the husband of the complainant.

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 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:-

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” 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 vendetta or 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 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.

In view of the above discussion, the present petition quashed, petitioners No.1 to 3 is allowed and the Order dated 09.09.2008 passed by the Additional Sessions Judge, Jalandhar is hereby, set aside.

(NIRMALJIT KAUR)

03.02.2012 JUDGE gurpreet

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