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Kanchan Nagpal vs Gobind Lal Nagpal And Others on 5 September, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Criminal Misc. No.M-37505 of 2019
Date of Decision: 05.09.2019

Kanchan Nagpal
…Petitioner(s)
Versus
Gobind Lal Nagpal others
…Respondent(s)
CORAM:- HON’BLE MR. JUSTICE HARI PAL VERMA

Present:- Mr. Ashwani Bakshi, Advocate
for the petitioner.
*****

HARI PAL VERMA, J. (Oral)

Petitioner – complainant – Kanchan Nagpal has filed the

present petition under Section 482 CrPC for setting aside the order dated

10.07.2018 (Annexure P-6) passed by Judicial Magistrate Ist Class,

Bhiwani, whereby the application filed by the petitioner under Section 319

CrPC to summon respondents no.2 to 8, as additional accused, was

dismissed. Further challenge has been laid to judgment dated 26.04.2019

(Annexure P-8) passed by Additional Sessions Judge, Bhiwani, whereby

the revision petition preferred by the petitioner against the order dated

10.07.2018 was dismissed.

As per the allegations so made by the petitioner-complainant

in FIR No.0330 dated 17.08.2016 under Sections 323, 34, 498A, 506 IPC

registered at Police Station Bhiwani City, Bhiwani, the marriage of the

complainant was solemnised with Manish Nagpal on 14.04.2014, by the

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father of the complainant-petitioner who gave dowry beyond his capacity.

Even at the time of engagement, more cash was demanded by the

respondents-accused, which was duly given to them. Thereafter, the parents

of the complainant were asked to give more dowry, big car, expensive

jewellery. Soon after the marriage, the in-laws started maltreating the

complainant, as they were not satisfied with the dowry brought by the

complainant. The in-laws of the complainant started taunting her and also

tortured her mentally and physically. On number of times, she was pulled

by hairs, given beatings and locked in the room. At times, she was thrown

out of the matrimonial home during night time. Her sister-in-law Monika

Singh and brother-in-law Vinay Kumar Singh also mentally tortured her on

many occasions, whereas her mother-in-law Kailash Nagpal and her

husband Manish Nagpal kept on torturing her physically daily. When the

complainant complained against the accused to her parents, her father-in-

law G.L. Nagpal threatened to kill them. Her husband’s uncle Shyam

Sunder Nagpal and aunt Varsha Nagpal used to give her false solace, so as

to prevent her from taking legal recourse. Her brother-in-law Rajnish

Nagpal pulled her from hairs and gave beatings on several times. The son

of her husband’s Mama got her signatures on blank papers and made her

and her husband to leave the house. Her husband left the house on

30.03.2016 saying that he was going to Hyberabad for some work.

Thereafter, on reaching there he never telephoned her. Whenever the

complainant made a phone call to him, he never picked the call and

switched off his mobile phone. On 06.04.2016, a person came to her with

divorce papers, which she refused to receive, because no quarrel

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whatsoever had taken place between the complainant and her husband on

30.03.2016. The aforesaid FIR was investigated and the respondents-

accused sought to be summoned were found innocent. Thereafter, an

application was filed by the complainant under Section 319 CrPC for

summoning of Gobind Lal Nagpal (father-in-law), Smt. Kailash Nagpal

wife of Govind Lal Nagpal (Mother-in-law), Rajnish Nagpal son of Govind

Nagpal (Devar of Complainant), Monika Singh sister-in-law of the

complainant and wife of Sh. Vinay Kumar Singh, Vinay Kumar Singh

(Nandoi), Shyam Nagpal, uncle of the husband, Versha Nagpal wife of

Shyam Lal Nagpal, Vipin Dhall son of maternal uncle of husband of

complainant, as additional accused.

The said application for summoning of the respondents-

accused, as additional accused, was dismissed by learned Magistrate on the

ground that the health condition of mother-in-law Kailash Nagpal and

father-in-law Govind Lal Nagpal is not good. Kailash Nagpal is getting

treatment for chronic type-II respiratory failure. She is on continuous

oxygen therapy + non-invasive ventilatory support at home (BIPAP) since

23.01.2014. Her functional activities of daily livings are affected because

of respiratory disability and she is almost bed ridden. Any activity beyond

the activities of daily living carry a risk of cardio pulmonary

decompensation including cardio pulmonary arrest. Similarly, as regards

Gobind Lal Nagpal, father-in-law, who is 77 years of age, is suffering from

Acute Extensive Wall M1, single vessel disease, Post PTCA with stent to

LAD(2014) LV Dysfunction (EF-47%) and chronic cystitis with mild

hepatomegaly. Due to his health condition, he has been advised to avoid

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stressful situations and prolonged exertional activities. He is required

regular follow up at a tertiary cardiac care centre and long term

medications. Thus, it was found father-in-law and mother-in-law of the

complainant are having very bad health conditions and are under regular

treatment. So far as the application of the complainant qua sister-in-law

Monika Singh and her husband Vinay Kumar Singh is concerned, it was

found that they live in Delhi and are not residing with in-laws of the

complainant and they have is no connection in the case. There are other

distant relatives of the husband, who are already facing trial and with this

minute classification of role and relation of the accused in demand of

dowry, learned Magistrate has declined the application vide order dated

10.07.2018.

Further, the revision petition filed against the aforesaid order

dated 10.07.2018 has also been dismissed by learned Additional Sessions

Judge, Bhiwani vide order dated 26.04.2019. The relevant paragraphs no.9

and 10 of the order passed by the revisionary Court read as under:-

9. It is evident from the allegations made in the FIR that
proposed accused No.1 Gobind Lal Nagpal, father-in-law,
accused No.2 Kailash Nagpal, mother-in-law, accused No.3
Rajnish Nagpal, brother of Manish Nagpal, accused No.4
Monika Singh Nagpal, daughter of Gobind Lal Nagpal,
accused No.5 Vinay Kumar Singh, husband of accused No.4,
accused No.6 Shyam Sunder Nagpal, accused No.7 Varsha
Nagpal and accused No.9 Vipin Dhall were in relations to the
main accused Manish Nagpal. The complainant had alleged
that all these proposed accused persons not only caused
injuries to her but in collusion with each other, they used to
raise demand of dowry during the subsistence of marriage. In

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the FIR, so deposed later in her evidence, she levelled
allegations at her father-

in-law, mother-in-law, brother-in-law, sister-in-law, husband
of sister-in-law, uncle and aunt of Manish Nagpal demanded
golden ornaments and they threatened her to put her to death
and got her signatures on blank papers.

10. It has categorically come on record that the proposed
accused No1 Gobind Lal Nagpal and his wife Kailash Nagpal
proposed accused No.2 were suffering from various kinds of
illness that included cardiac and respiratory problems.
Brother-in-law Rajniesh, proposed accused No.3 was residing
separately from accused Manish Nagpal before the time of
marriage as evident from the rent agreement so placed on
record. Sister-in-law and her husband, proposed accused
No.45 seem to be enjoying their marital life at the house of
her husband as proposed accused No.5 was defence
personnel. Proposed accused No. 6 to 8 Shyam Sunder
Nagpal, Varsha Nagpal and Vipin Dhall all are residing at
different places as that of proposed accused No.12 and main
accused Manish. One writing was also placed on record
before the learned lower court wherein the complainant on
31.12.2015 herself made the statement of receiving the entire
jewellery from her in-laws. It seems that all these facts had
already come during the course of investigation. As such, the
proposed accused were not impleaded by filing challan
against them.

It is in these circumstances, the petitioner has filed the present

petition challenging the orders dated 10.07.2018 and 26.04.2019 passed by

the Courts below.

Counsel for the petitioner has argued that the petitioner has

moved the application under Section 319 CrPC for summoning respondents

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no.4 to 8, as additional accused, as the police had deleted their names

intentionally in collusion with them, despite there being sufficient material

available on record to challan them. However, learned Magistrate has

dismissed the said application on 10.07.2018 and further, the revisionary

Court also dismissed the revision petition vide order dated 26.04.2019 in

mechanical manner. The Courts below have taken into consideration the

extraneous material and documents produced by the accused persons and

have relied upon the same, while passing the impugned orders. Merely

because the accused sought to be summoned had some health problems, is

not a relevant consideration so as to decline summoning of the accused, so

far as father-in-law and mother-in-law are concerned. Similarly, the sister-

in-law of the petitioner and husband of sister-in-law have not been

summoned merely because they are living separately. There is no

presumption in law that a sister-in-law or other relatives of the husband

living separately cannot harass the complainant. The petitioner had given

specific instances and the manner in which she has been harassed and

maltreated by the aforesaid accused, sought to be summoned, but the same

have not been taken into consideration.

I have heard learned counsel for the petitioner perused the

orders passed by the Courts below.

The health condition of in-laws of the petitioner, as narrated

above, does speak that they are not physically fit enough to move freely.

They are almost confined to bed on account of poor health condition and

multiple diseases. They are aged persons. Kailash Nagpal, mother-in-law,

is getting treatment for chronic type-II respiratory failure and is on

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continuous oxygen therapy and non-invasive ventilatory support at home

(BIPAP) since 23.01.2014. She is mostly bed-ridden. Similarly, Gobind Lal

Nagpal, father-in-law, who is 77 years of age, is suffering from Acute

Extensive Wall M1, single vessel disease, Post PTCA with stent to

LAD(2014) LV Dysfunction (EF-47%) and chronic cystitis with mild

hepatomegaly. The sister-in-law Monika Singh and her husband Vinay

Kumar Singh are living separately at Delhi. The allegations so levelled by

the petitioner have duly been looked into by the police during investigation.

No such material has been left to be brought on record, warranting

summoning of respondents, as additional accused.

The argument raised by learned counsel for the petitioner that

the aforesaid accused persons have been specifically named in the FIR and

in the statement under Section 161 CrPC, specific roles has been attributed

to the respondents-accused sought to be summoned, has been dealt with by

the trial Court and has declined to summon the accused sought to be

summoned on account of their poor health conditions as far as father-in-

law and mother-in-law of the petitioner are concerned, whereas the sister-

in-law and her husband being distantly placed. There is no entrustment of

any dowry articles to them. This Court feels that once the petitioner has

sought summoning of even distant relations, it create serious doubt about

the allegations levelled against the in-laws of the petitioner as well.

Learned revisionary Court has given complete reasoning and justification

while dealing with the revision petition filed against the order dated

10.07.2018 passed by learned Magistrate.

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In the case of Geeta Mehrotra and another Versus State of

U.P. and another 2012(4) RCR (Criminal) 812, Hon’ble the Apex Court

has held that in criminal cases, arising out of a matrimonial disputes, a fact

borne out of experience cannot be overlooked that there is a tendency to

involve the entire family members of the household in the domestic quarrel

taking place in a matrimonial dispute. In the said case, while quashing the

FIR against the family members of the husband, it was held as under:-

“21. In yet another case reported in AIR 2003 SC 1386 in the
matter of B.S. Joshi Ors. vs. State of Haryana Anr. it
was observed that there is no doubt that the object of
introducing Chapter XXA containing Section 498A in the
Indian Penal Code was to prevent the torture to a woman by
her husband or by relatives of her husband. Section 498A was
added with a view to punish the husband and his relatives who
harass or torture the wife to coerce her relatives to satisfy
unlawful demands of dowry. But if the proceedings are
initiated by the wife under Section 498A against the husband
and his relatives and subsequently she has settled her disputes
with her husband and his relatives and the wife and husband
agreed for mutual divorce, refusal to exercise inherent powers
by the High Court would not be proper as it would prevent
woman from settling earlier. Thus for the purpose of securing
the ends of justice quashing of FIR becomes necessary,
Section 320 Cr.P.C. would not be a bar to the exercise of
power of quashing. It would however be a different matter
depending upon the facts and circumstances of each case
whether to exercise or not to exercise such a power.

22. In the instant matter, when the complainant and her
husband are divorced as the complainant-wife secured an ex-
parte decree of divorce, the same could have weighed with the
High Court to consider whether proceeding initiated prior to

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the divorce decree was fit to be pursued in spite of absence of
specific allegations at least against the brother and sister of
the complainant’s husband and whether continuing with this
proceeding could not have amounted to abuse of the process
of the court. The High Court, however, seems not to have
examined these aspects carefully and have thus side- tracked
all these considerations merely on the ground that the
territorial jurisdiction could be raised only before the
magistrate conducting the trial.

23. In the instant case, the question of territorial jurisdiction
was just one of the grounds for quashing the
proceedings along with the other grounds and, therefore, the
High Court should have examined whether the prosecution
case was fit to be quashed on other grounds or not. At this
stage, the question also crops up whether the matter is fit to be
remanded to the High Court to consider all these aspects. But
in matters arising out of a criminal case, fresh consideration
by remanding the same would further result into a protracted
and vexatious
proceeding which is unwarranted as was held by this Court in
the case of Ramesh vs. State of Tamil Nadu (supra) that such
a course of remand would be unnecessary and inexpedient as
there was no need to prolong the controversy. The facts in this
matter on this aspect was although somewhat different since
the complainant had lodged the complaint after seven years of
delay, yet in the instant matter the factual position remains
that the complaint as it stands lacks ingredients constituting
the offence under Section 498A and Section 3/4 Dowry
Prohibition Act against the appellants who are sister and
brother of the complainant’s husband and their involvement in
the whole incident appears only by way of a casual inclusion
of their names. Hence, it cannot be overlooked that it would be
total abuse of the process of law if we were to remand the
matter to the High Court to consider whether there were still

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any material to hold that the trial should proceed against them
in spite of absence of prima facie material constituting the
offence alleged against them.

24. However, we deem it appropriate to add by way of caution
that we may not be misunderstood so as to infer that even if
there are allegation of overt act indicating the complicity of
the members of the family named in the FIR in a given case,
cognizance would be unjustified but what we wish to
emphasize by highlighting is that, if the FIR as it stands does
not disclose specific allegation against accused more so
against the co-accused specially in a matter arising out of
matrimonial bickering, it would be clear abuse of the legal
and judicial process to mechanically send the named accused
in the FIR to undergo the trial unless of course the FIR
discloses specific allegations which would persuade the court
to take cognizance of the offence alleged against the relatives
of the main accused who are prima facie not found to have
indulged in physical and mental torture of the complainant-
wife. It is the well settled principle laid down in cases too
numerous to mention, that if the FIR did not disclose the
commission of an offence, the court would be justified in
quashing the proceedings preventing the abuse of the process
of law. Simultaneously, the courts are expected to adopt a
cautious approach in matters of quashing specially in cases of
matrimonial dispute whether the FIR in fact discloses
commission of an offence by the relatives of the principal
accused or the FIR prima facie discloses a case of over-
implication by involving the entire family of the accused at the
instance of the complainant, who is out to settle her scores
arising out of the teething problem or skirmish of domestic
bickering while settling down in her new matrimonial
surrounding.”

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The allegations against the respondents, sought to be

summoned, are general in nature. Though it has been alleged that the

additional accused/respondents were also involved in physical and mental

torture of the petitioner-complainant, but such allegations are without

mentioning even a single specific incident against them. Considering the

fact that the father-in-law and mother-in-law of the petitioner-complainant

are almost bed-ridden, as their health conditions have duly been considered

by the Court below, whereas the other respondents-accused, sought to be

summoned, are in distant relations of the husband and are living separately

at a far off place and it is difficult to believe as to how those persons could

be motivated to demand dowry, this Court finds that there being no

illegality in the impugned orders passed by the Courts below, this petition

deserves to be dismissed with costs.

Accordingly, the present petition is dismissed with costs of

Rs.10,000/- to be deposited with the Haryana State Legal Services

Authority, Panchkula within a month from today.

September 05, 2019 ( HARI PAL VERMA )
AK JUDGE

Whether speaking / reasoned? Yes / No
Whether reportable? Yes / No

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