CRM-M-34845-2013 (OM) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34845-2013 (OM)
Date of decision: 07.08.2018
Anita Kumari @ Anita Rani and others
… Petitioners
Vs.
Kishan Kumar and another
… Respondents
CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Mohinder Kumar, Advocate
for the petitioners.
None for respondent No.1.
Mr. Sidakmeet Sandhu, AAG, Punjab.
*******
ARVIND SINGH SANGWAN, J. (ORAL)
Prayer in this petition is for quashing of criminal complaint
No.281/1/12 dated 15.11.2010 (Annexure P-1) titled as Kishan Kumar Vs.
Rajinder Kumar and others under Sections 323, 457, 427, 341, 504, 506, 34 of
the Indian Penal Code (for short ‘IPC’), which pending in the Court of JMIC,
SBS Nagar and the summoning order dated 28.01.2013 (Annexure P-3) passed
in the aforesaid complaint, vide which the petitioners have been summoned to
face the trial as well as further proceedings arising therefrom.
This petition was filed in the year 2013 and the further proceedings
before the trial Court were stayed on 22.04.2014.
Though reply has already been filed on behalf of complainant-
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respondent No.1, however, for the last two dates, no one has appeared for
respondent No.1 despite due intimation given by the registry.
Brief facts of the case are that respondent No.1 Kishan Kumar
(hereinafter referred as complainant) filed the aforesaid criminal complaint with
the allegations that on 12.11.2010, he was present in his house and someone
knocked the door. When he opened the door, he saw four persons standing
outside and they started abusing and pushed him and he fell down on the
ground and the accused persons criminally trespassed in his house and broke
open the lock of one room. When the complainant stopped them, accused
persons wrongly restrained him and gave him fist blows. In the meantime,
accused had broken the lock of the door and forcibly entered in the room and
till the date of filing of the complaint, they are illegally and forcibly occupying
one room of his house.
The complaint was instituted on 15.11.2010 and thereafter, the
complainant in his preliminary evidence, examined himself as CW1 and
deposed on the lines of the version given in the complaint. CW2 Manoj Kumar
stated that the complainant is his parental uncle (Taya) and family stay together
in the same house and he had seen the incident and saved the complainant from
the clutches of the accused persons. CW3 Harmesh Lal stated that on the date of
occurrence, he had gone to the house of complainant to fetch milk and he had
also witnessed the occurrence. Thereafter, the complainant closed his evidence
and the trial Court vide order dated 28.10.2013 summoned the petitioners to
face the trial for the offences punishable under Sections 323, 457, 427, 341,
504, 506, 34 IPC. The petitioners thereafter appeared before the trial Court and
they have filed the present petition.
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Learned counsel for the petitioners submits that it is admitted in the
complaint that petitioner No.1/accused No.3 Anita Rani is daughter-in-law of
the complainant, as she is wife of Kundal Lal, son of the complainant and her
marriage was performed in the year 2005. It is further stated in the complaint
that there is matrimonial discord between petitioner No.1-accused No.3 and son
of the complainant and number of litigations are pending, details of which is
mentioned in para No.4 of the complaint itself. Counsel for the petitioners
further submits that prior to filing of this complaint, petitioner No.1 had moved
an application before the Judicial Magistrate 1st Class, SBS Nagar for providing
protection and accommodation, on which, the following order was passed on
03.08.2010: –
“Report was called for the Protection Officer and same is received
with the report that the domestic violence was meted out with the
petitioner. Counsel for petitioners has submitted that already
application under Section 125 of Cr.P.C. has been disposed off
and respondent is trying to delay the disposal of the case by
absenting himself from the proceedings and the petitioner is
entitled to seek the order to provide the residence as well as
monetary relief and further to seek attachment of property of
respondent, that the same is not solid/disposed of in order to
frustrate the claim of petitioner. Accordingly, residence order is
passed which will be implemented by SHO, P.S. Rahon. Further
property of respondent is ordered to be attached to secure the
payment of Rs.60,000/- already fixed by the court in order passed
under Section 125 Cr.P.C. Report be called from the concerned
police station for implementation of order of residence and SHO
will ensure the suitable accommodation be provided to the
petitioner and he will be duty bound to ensure that no domestic
violence is meted out to the petitioner during her stay in the3 of 9
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matrimonial house. To come upon 25.8.2010 for the said purpose.
Sd/-
ACJSD/03.08.2010″
Learned counsel for the petitioners has further submitted that
petitioner No.1, being wife of son of the complainant Kundal Lal, is residing in
the house in dispute, as per order passed by the Judicial Magistrate 1 st Class,
SBS Nagar, in which a direction was issued to the police authorities to provide
the protection and to implement the order providing residence and therefore, the
petitioners have not committed any offence, as much prior to filing of the
complaint, she was in settled possession of the house. It is further submitted that
as per the complaint, incident took place on 12.11.2010, whereas the Court had
granted protection to petitioner No.1 on 03.08.2010 (Annexure P-6) and
24.08.2010 (Annexure P-7/T) and the SHO, Police Station Rahon had also
submitted the report No.28 regarding visiting the house of the complainant, in
compliance of the order dated 03.08.2010 passed by the Judicial Magistrate 1st
Class, SBS Nagar. It is further argued that from this report No.28 (Annexure P-
7/T), it is apparent that the complainant knew that there is an order passed by
the competent Court of law in favour of petitioner No.1 granting her right of
residence in the matrimonial home.
Learned counsel for the petitioners has relied upon certain orders
showing that there is a matrimonial dispute between petitioner No.1 Anita Rani
and her husband Kundal Lal, son of the complainant Kishan Kumar. It is also
argued that vide order dated 17.04.2007, the Civil Court, in a petition under
Section 9 of the Hindu Marriage Act, has recorded the statement of petitioner
No.1/accused No.3 Anita Rani that she is ready to join the company of her
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husband, if she is not harassed, however, later on, her husband failed to comply
with the directions and the said petition was dismissed for non-prosecution vide
order dated 08.05.2007 (Annexure P-9).
Learned counsel for the petitioners has further argued that since
petitioner No.1 was maltreated by the complainant and her son, she filed an
application for maintenance, in the divorce petition filed by Kundal Lal and the
Court had granted maintenance pendente-lite of Rs.800/- per month and
Rs.4,000/- as litigation expenses vide order dated 25.09.2008. Kundan Lal filed
CR-6427-2008 challenging the said order, however, having failed to comply
with the directions of this Court, said civil revision petition was also dismissed
for non-prosecution vide order dated 17.08.2009 (Annexure P-10). Later on,
even the divorce petition filed by Kundal Lal was dismissed by the Additional
Sessions Judge, Nawanshahr vide order dated 04.11.2009 (Annexure P-11). It is
further submitted that on one hand, the complainant and his son were harassing
petitioner No.1 on one pretext or the other and on the other hand, when she, in
exercise of her legal rights to have a residence in her matrimonial home, was
granted the same relief by the competent Court of law, the impugned complaint
has been filed by concealing the aforesaid order dated 03.08.2010 and till date,
the said order is in operation and petitioner No.1 is continuously residing in the
said premises.
Learned counsel for the petitioners has next contended that there is
no MLR on record to show that the petitioners have caused any injury to the
complainant and the prosecution witnesses are close relatives of the
complainant and are interested witnesses. Counsel for the petitioners has relied
upon a judgment of this Court in Subhash and another Vs. Shivani, 2016 (3)
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RCR (Crl.) 959, wherein it has been held that as per Section 2 (s) of Protection
of Women from Domestic Violence Act, 2005, a shared household is a place
where the wife lives or at any stage has live in a domestic relationship either
singly or along with her husband and would also include a household whether
owned or tenanted either jointly by the parties and therefore, the stay of
petitioner No.1 in house of the complainant is not illegal in any manner and
summoning of the petitioners under Sections 457 and 443 IPC is not made out.
Learned counsel for the petitioners has further relied upon
Madhavrao Jiwajjrao Sindia Vs. Shambhajirao Chandrojirao Angre and
others, 1988 SCC 234, wherein the Hon’ble Supreme Court has held that even
at the initial stage, the High Court can quash the FIR/complaint, if from the
perusal of the same, on the basis of uncontroversial allegations, prima facie no
offence is made out.
Learned counsel for the petitioners has also relied upon a judgment
of the Hon’ble Supreme Court in M/s Pepsi Foods Ltd. Vs. Special Judicial
Magistrate, 1997 (4) RCR (Crl.) 761, in which it is held as under: –
“Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. it is
not that the complainant has to bring only two witnesses to
support his allegations in the complaint to have the criminal law
set into motion. The order of the magistrate summoning the
accused must reflect that he has applied his mind to the facts of the
case and the law applicable thereto. He has to examine the nature
of allegations made in the complaint and the evidence both oral
and documentary in support thereof and would that be sufficient
for the complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at the
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time of recording of preliminary evidence before summoning of the
accused. Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put questions to the
complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine if
any offence is prima facie committed by all or any of the accused.”
Learned counsel for the petitioners has thus submitted that from the
bare perusal of the complaint (Annexure P-1) and statements of CW1 to CW3
(Annexures P-2 to P-4), no offence is made out against the petitioners and their
prosecution in pursuance to the said complaint and summoning order is nothing
but misuse of process of law.
Reply by way of affidavit of Deputy Superintendent of Police,
Nawanshahr Sub Division, District SBS Nagar has been filed, in which it is
stated that there is no role of the police in the present case.
In the reply filed by respondent No.1, it is stated that the
complainant is an old man and was physically assaulted by the accused by
criminally trespassing in his house, which was in exclusive possession of the
complainant. It is further stated that the complainant has no concern with the
matrimonial dispute of his son and petitioner No.1, as he has disowned them. It
is also stated that the summoning order has rightly been passed, as the
complainant and two eyewitnesses have supported the prosecution version.
After hearing learned counsel for the parties, I find merit in the
present petition, for the following reasons: –
(a) Much prior to filing of the complaint, petitioner No.1, who is
daughter-in-law of the complainant, had obtained an order from the competent
Court of law providing her residence under the Protection of Women from
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Domestic Violence Act, 2005 and a direction was also issued to the police to
provide protection to the petitioners/accused. It is not disputed that in
compliance of the order dated 03.08.2010, the police had visited the premises of
the complainant and has recorded a DDR dated 24.08.2010 (Annexure P-7/T)
and thus, petitioner No.1 was in possession of a room much prior to the alleged
incident as per order of the Court.
(b) The allegations in the complaint, on the face of it, are false that the
accused persons have forcibly entered into the house of the complainant on
12.11.2010, whereas petitioner No.1, being daughter-in-law of the complainant,
in pursuance to the order passed under the Protection of Women from Domestic
Violence Act, 2005, granting her protection of residence, was in legal
possession of the same and therefore, it cannot be held that the accused persons
have committed any criminal trespass.
(c) The complainant has failed to produce on record any MLR to show
that the petitioners have caused any injury to him and therefore, in the absence
of any MLR, the allegation of causing injury to the complainant, is not proved.
(d) It is not disputed by the complainant that all the accused persons
are close relatives of his daughter-in-law/petitioner No.1 Anita Rani, who is
wife of his son Kundal Lal. Accused No.1 Rajinder Kumar and accused No.2
Asha Rani are the parents of Anita Rani and accused No.4 Babli is real sister of
Anita Rani and therefore, even if they had visited the house of the complainant,
where Anita Rani is residing under the order of the Court, it cannot be termed
as criminal trespass.
(e) The complainant himself has stated in the complainant that accused
Anita Rani is occupying a room till date and even it is so reflected in the
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summoning order, therefore, it is for the complainant to get the order vacated
from the competent Court and seek possession of the room, in accordance with
law, whereas he is trying to take possession by filing the impugned complaint
and putting undue pressure on the accused persons especially in view of the fact
that it is reflected from the various orders passed by different Courts in the
matrimonial proceedings that son of the complainant Kundal Lal has failed to
maintain his wife/petitioner No.1 Anita Rani, or provide her residence, or pay
the maintenance, which shows that present complaint is nothing but a malafide
action on the part of the complainant.
(f) From a bare perusal of the complaint and various undisputed
documents, which are orders of the Court, I find that prima facie, no offence is
made out against the petitioners/accused persons in view of judgment of the
Hon’ble Supreme Court in M/s Pepsi Foods Ltd.’s case (supra).
In view of the above, present petition is allowed and the criminal
complaint No.281/1/12 dated 15.11.2010 (Annexure P-1) titled as Kishan
Kumar Vs. Rajinder Kumar and others under Sections 323, 457, 427, 341, 504,
506, 34 of the Indian Penal Code (for short ‘IPC’) and the summoning order
dated 28.01.2013 (Annexure P-3) as well as all the subsequent proceedings
arising therefrom, are hereby quashed.
[ ARVIND SINGH SANGWAN ]
07.08.2018 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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