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Sukhdial Kaur Gill & Ors vs Rajwinder Kaur @ Raj Kaur on 9 May, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Date of decision: 09.05.2018

1. CRM-M-17297-2014 (OM)

Sukhdial Kaur Gill and others
…Petitioners

Versus

Rajwinder Kaur @ Raj Kaur
…Respondent
*****

2. CRM-M-33956-2015 (OM)

Dalbir Singh Gill
…Petitioner

Versus

Rajwinder Kaur @ Raj Kaur
…Respondent

*****

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. D.S. Randhawa, Advocate,
for the petitioners.

Mr. Jagdish Manchanda, Advocate,
for the respondent.

****

JAISHREE THAKUR, J.

1. This Court proposes to decide the above referred two criminal

miscellaneous petitions by this common order as facts are the same. For the

sake of brevity facts are being noticed from CRM-M-17297-2014.

2. The instant petition has been filed under Section 482 Cr.P.C.

seeking to challenge order dated 29.01.2014 by which the petitioners have

been summoned to face trial under Sections 406, 498-A IPC.

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3. In brief, the facts are that the marriage of Rajwinder Kaur @

Raj Kaur respondent was solemnized with Dalbir Singh Gill son of

petitioner No.1 and brother of petitioner Nos.2 to 4 on 10.02.2006 as per

Sikh rites and ceremonies at Rajpura. Petitioner No.2 is the brother of the

husband of the complainant, who was working in Mumbai at the time of

marriage of the respondent and thereafter is working in Dubai. Petitioner

No.3 is the married sister-in-law of the respondent and a British citizen after

her marriage in 1992, while petitioner No.4 is also a married sister-in-law of

the respondent, who is living at Bhopal after her marriage which took place

on 05.10.1997. After the marriage, respondent complainant (respondent for

short) resided with petitioner No.1 and her son Dalbir Singh Gill in

Gandhinagar, Gujarat. Dalbir Singh Gill, the husband of the respondent was

a cricketer of repute playing with Sachin Tendulkar under-15 Cricket Team,

however, he met with a severe accident in the year 2002 and became

severally handicapped. This was the second marriage for respondent. There

were domestic quarrels between the respondent with petitioner No.1 and her

husband on petty issues and respondent wanted to reside separately from

petitioner No.1. She got separate accommodation along with her husband

Dalbir Singh Gill. Thereafter, she gave a complaint case 17559 of 2007

against petitioner No.1 under Sections 498-A, 323 IPC and Sections 3 7

of Prevention of Dowry Act, on which basis an FIR was registered at Sector

21, Police Station Gandhinagar only qua petitioner No.1. Petitioner No.1

faced trial in Court of Chief Judicial Magistrate, Gandhinagar under the

aforesaid Sections, however, came to be acquitted by order dated

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09.05.2008. On account of the fact that a false case was registered against

petitioner No.1, rest of the petitioners, namely petitioner Nos. 2 to 4 were

not on talking terms with the respondent thereafter. The respondent and her

husband Dalbir Singh Gill son of petitioner No.1 started residing at H. No.

39, Chandralok Society, Village Vavol, Tehsil and District Gandhinagar in a

house owned by Sh. Harshadbhai Rawal and in the month of May, 2009

shifted to Bunglow No. 32, Meghdhanush Society, InfoCity, Gandhinagar.

Petitioner No.1 thereafter left for England to visit her daughter petitioner

No.3 and returned on 06.03.2010 and on return went to the house of her son

Dalbir Singh Gill to visit, but was denied entry. Subsequently, she gave an

application to the Women Police Station, Sector 16, Gandhinagar and with

their help, was able to get into the house and was shocked to see her son

sleeping on a cot, who told her that he had been locked in that room for the

past one month and respondent was not allowing him to go outside the

house and used to beat him. With the help of the police, the petitioner No.1

managed to get her son Dalbir Singh Gill admitted in Civil Hospital,

Gandhinagar. This matter garnered a lot of media attention. Then petitioner

No.1 registered an FIR No.29 dated 5.4.2010 against the respondent under

Sections 342 323 IPC at Police Station Sector 7, District Gandhinagar

City and respondent was arrested on 04.04.2010. Respondent then left

Gandhinagar along with her father and all belongings. Since the Condition

of the son of petitioner No.1 was pathetic and he could hardly walk, and was

in depression, with the help of Cricketer Sachin Tendulkar a surgery was

conducted upon him. As a counter-blast to the FIR registered at the behest

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of petitioner No.1, an FIR no 18 dated 4.5.2011 u/s 406, 498 A IPC was

registered at PS Kheri Gandian District Patiala. Petitioner Nos. 1 2

applied for anticipatory bail, which was allowed to petitioner No.1 but

petitioner No.2 was arrested on 21.02.2012 and later on released on regular

bail. The matter was investigated and a cancellation report prepared.

However, a protest petition was filed and by order dated 29.01.2014, the

said protest petition was allowed and the petitioners have been summoned

to face trial under Sections 406, 498-A IPC. Aggrieved, the instant criminal

miscellaneous petition has been preferred.

4. Husband of Rajwinder Kaur @ Raj Kaur, namely, Dalbir Singh

Gill has filed an independent petition i.e. CRM-M-33956-2015 which was

ordered to be heard along with the present petition.

5. Learned counsel for the petitioners submits that petitioner No.1

had already been exonerated in the FIR registered under Sections 498A, 323

IPC and Sections 3 7 of Prevention of Dowry Act, registered at Sector 21,

Police Station Gandhinagar, in which petition there was no whisper of any

allegation against rest of the petitioners or even the husband, while

submitting that after registration of the FIR, petitioner No.1 started residing

separately and was not joint in residence. It is also argued that the

summoning order qua petitioner Nos. 2, 3 4 in CRM-M-17297-2014 is

liable to be set aside as they have falsely been implicated in the aforesaid

case. They in fact are the married sisters-in-law and married brother-in-law

of the respondent, residing separately and having no dealings in the day-to-

day married life of the respondent-complainant. It is argued that the brother-

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in-law was working and residing in Mumbai and thereafter working in

Dubai, whereas the sisters-in-law were married and residing in their own

matrimonial homes much prior in time to the marriage solemnized between

their brother and the respondent. It is also argued that the summoning order

is violative of Section 202 Cr.P.C. insofar as all the petitioners are residing

out of the jurisdiction of Judicial Magistrate Ist Class, Rajpura and without

following the procedure as prescribed under Section 202 Cr.P.C. the

summoning order itself is not sustainable.

6. Per contra, learned counsel appearing on behalf of the

respondent urged that the petitioners have not availed their remedy of

approaching the Sessions Judge under Section 397 Cr.P.C. and, therefore,

this Court would have no jurisdiction to entertain the said criminal

miscellaneous petition. It is also submitted that a fraud has been played

upon the respondent since the physical condition of Dalbir Singh Gill was

not disclosed to her. It is submitted that the marriage between the parties

was celebrated with great pomp and show and Istridhan/dowry articles were

given beyond the capacity by the parents of the complainant in the year

2006 but the husband and the present petitioners were not satisfied and

there was a demand for bringing more dowry.

7. I have heard learned counsel for the parties and have perused

the record of the case.

8. Admittedly, a marriage was solemnized between the parties as

far back in the year 2006 and this was a second marriage that of both Dalbir

Singh Gill and Rajwinder Kaur @ Raj Kaur- respondent. It is also admitted

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fact that the husband suffered a grievous injury in an accident in the year

2002 leaving him physically handicapped. As per the record available, it is

not in dispute that respondent filed a criminal miscellaneous case No. 17559

of 2007 against petitioner No.1 alone under Section 498(k), 323 of IPC and

under Section 3 of the Prevention of Dowry Act and after detailed evidence

being led, the Chief Judicial Magistrate, Gandhinagar came to the

conclusion that the alleged torture on account of demand of dowry are not

proved while holding that prima facie it appears that the dispute between the

parties is a property dispute rather than a simple family dispute. It is also

available on the record that the respondent herein had locked the son of

petitioner No.1 in the house and had mentally and physically tortured him

by not giving adequate food and water for a considerable period of time and

it was the neighbors who fed him. It transpires that petitioner No.1 and the

police went to the accommodation of the respondent where her son was

residing, and he was found locked in the said premises. He could hardly

walk and he was lifted and carried to the hospital in a police van. This entire

incident stood video recorded and a statement was made in this regard

before the Court in FIR No. 29 dated 05.04.2010 under Sections 342 323

IPC at Police Station Sector 7, District Gandhinagar City at the behest of

petitioner No.1 against the respondent. It is also not disputed that this

incident was carried in the newspapers in Ahmedabad. A divorce petition

was also filed thereafter by Dalbir Singh Gill, which stands allowed by the

Family Court at Gandhinagar by order dated 14.07.2014 wherein it is being

held that the respondent-wife has treated the husband with extreme cruelty

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and has also violated the fundamental rights of the husband under Article 21

of the Constitution of India on account of the fact that she had imprisoned

him without any justification.

9. The argument raised that there has been non-compliance of

Section 202 Cr.P.C. is sustainable. Section 202 Cr.P.C. reads as under :-

“Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has been
made over to him under section 192, may, if he thinks fit,[and
shall, in a case where the accused is residing at a place beyond
the area in which he exercises his jurisdiction,] postpone the
issue of process against the accused, and either inquire into the
case himself or direct an investigation to be made by a police
officer or by such other person as he thinks fit, for the purpose
of deciding whether or not there is sufficient ground for
proceeding:

Provided that no such direction for investigation shall be
made,–

(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Session; or

(b) where the complaint has not been made by a Court,
unless the complainant and the witnesses present (if any)
have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if
he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses
and examine them on oath.

(3) If an investigation under sub- section (1) is made by a

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person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer- in- charge of a police station except the power to arrest
without warrant.”

10. As per Section 202 Cr.P.C. an inquiry has to be held by the

Magistrate when the accused resides beyond its jurisdiction. It becomes

incumbent upon the Magistrate to carry out an inquiry or investigation

under Section 202 Cr.P.C. before issuing process. In this regard reliance is

placed upon the judgment rendered in National Bank of Oman vs.

Barakara Abdul Aziz and Anr., (2013) 2 SCC 488, para 9 of which reads as

under :-

“The duty of a Magistrate receiving a complaint is set out
in Section 202 of the Cr.P.C. and there is an obligation on the
Magistrate to find out if there is any matter which calls for
investigation by a criminal court. The scope of enquiry under
this Section is restricted only to find out the truth or otherwise
of the allegations made in the complaint in order to determine
whether process has to be issued or not. Investigation
under Section 202 of the Cr.P.C. is different from the
investigation contemplated inSection 156 as it is only for
holding the Magistrate to decide whether or not there is
sufficient grounds for him to proceed further. The scope of
enquiry under Section 202 of the Cr.P.C. is, therefore, limited
to the ascertainment of truth or falsehood of the allegations
made in the complaint –

(i) on the materials placed by the complainant before the Court

(ii) for the limited purpose of finding out whether a prima facie
case for issue of process has been made our; and

(iii) for deciding the question purely from the point of view of
the complainant without at all adverting to any defence that the

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accused may have.”

Similarly in Abhijit Pawar versus Hemant Madhukar Nimbalkar 2017 (1)

RCR (Criminal) 405, the Supreme Court has held that amended provisions

of Section 202 Cr.P.C cast an obligation on the Magistrate to apply his

mind, carefully and satisfy himself that the allegations in the complaint

when considered along with the statements recorded, the enquiry conducted

therefrom, would prima facie constitute the offence for which the complaint

is filed, while further holding the requirement of conducting an enquiry or

directing investigation before issuing process is, therefore, not an empty

formality.

11. It is evident that the said procedure had not been followed and,

therefore, there is non-compliance of Section 202 Cr.P.C. rendering the

summoning order a nullity. The question arises whether the matter should

be remanded back to the trial Court to pass fresh orders in compliance with

Section 202 Cr.P.C. or to proceed to exercise inherent powers under section

482 Cr.P.C. and quash the FIR being an abuse of the process of law as has

been claimed in the instant petition.

12. In the case of State of Haryana and others vs. Bhajan Lal and

others, 1992 Supreme Court Cases (Cri) 426, the Apex Court has reiterated

the principle that the Courts can exercise their inherent jurisdiction of

quashing a criminal proceeding, only when the allegations made in the FIR/

complaint do not disclose the commission of any offence and make out a

case against the accused. In the latest pronouncement in the case of

Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others vs.

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State of Gujarat and another, (2017) 9 Supreme Court Cases 641, while

discussing the various decisions of the Apex Court, the broad principles

which emerge from the precedents on the subject, have been summarized in

the following propositions :

“(i) Section 482 preserves the inherent powers of the
High Court to prevent an abuse of the process of any
court or to secure the ends of justice. The provision
does not confer new powers. It only recognises and
preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High
Court to quash a First Information Report or a
criminal proceeding on the ground that a settlement
has been arrived at between the offender and the
victim is not the same as the invocation of jurisdiction
for the purpose of compounding an offence. While
compounding an offence, the power of the court is
governed by the provisions of Section 320 of the Code
of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is
non-compoundable.

(iii) In forming an opinion whether a criminal
proceeding or complaint should be quashed in
exercise of its jurisdiction under Section 482, the
High Court must evaluate whether the ends of justice
would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a
wide ambit and plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent an abuse of
the process of any court;

(v) The decision as to whether a complaint or First
Information Report should be quashed on the ground

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that the offender and victim have settled the dispute,
revolves ultimately on the facts and circumstances of
each case and no exhaustive elaboration of principles
can be formulated;

(vi) In the exercise of the power under Section 482
and while dealing with a plea that the dispute has
been settled, the High Court must have due regard to
the nature and gravity of the offence. Heinous and
serious offences involving mental depravity or
offences such as murder, rape and dacoity cannot
appropriately be quashed though the victim or the
family of the victim have settled the dispute. Such
offences are, truly speaking, not private in nature but
have a serious impact upon society. The decision to
continue with the trial in such cases is founded on the
overriding element of public interest in punishing
persons for serious offences;

(vii) As distinguished from serious offences, there may
be criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on
a distinct footing in so far as the exercise of the
inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise
from commercial, financial, mercantile, partnership
or similar transactions with an essentially civil
flavour may in appropriate situations fall for
quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the
criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction
is remote and the continuation of a criminal
proceeding would cause oppression and prejudice;

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and

(x) There is yet an exception to the principle set out in
propositions (viii) and clause. It

(ix) above. Economic offences involving the financial
and economic well-being of the state have
implications which lie beyond the domain of a mere
dispute between private disputants. The High Court
would be justified in declining to quash where the
offender is involved in an activity akin to a financial
or economic fraud or misdemeanour. The
consequences of the act complained of upon the
financial or economic system will weigh in the
balance.”

13. In the instant case, petitioner No.1 has already been acquitted in

case FIR registered under Sections 498A, 323 IPC and Sections 3 7 of

Prevention of Dowry Act, registered at Sector 21, Police Station

Gandhinagar, holding that it was prima facie a dispute over a property and

not on account of demand of dowry. Interestingly enough the husband

Dalbir Singh Gill was not named in the complaint filed in 2007. Once

petitioner No.1 has been acquitted, there is no justification in a second

complaint being instituted against her. This Court also can not loose sight of

the fact that after petitioner No.1 had been acquitted, the parties, namely the

respondent and son of petitioner No.1 started residing separately from the

rest of the family and there would be no occasion for any interference in

their married life thereafter. Cruelty at the hands of the respondent has

actually been established in the decree of divorce that was granted by the

Courts at Gujarat and, therefore, Section 498-A and 406 IPC again would

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not be sustainable against the husband Dalbir Singh Gill.

14. As regards, petitioner Nos. 2 to 4, it is an admitted fact that the

sisters-in-law were married much prior to the time marriage between the

respondent and Dalbir Singh Gill, and petitioner No.2 was residing

separately since he was working in Mumbai and later on shifted to Dubai.

The Hon’ble Supreme Court in Preeti Gupta Another vs. State of

Jharkhan Another, 2010(7) SCC 667 took note of the fact that large

number of complaints are not bona fide and are instituted as a pressure

tactic by roping all family members which certainly seems to be the case

herein. Paragraphs Nos. 28 29 of the Preeti Gupta Another case

(supra) read as under :-

“28. It is a matter of common knowledge that unfortunately
matrimonial litigation is rapidly increasing in our country. All
the courts in our country including this court are flooded
with matrimonial cases. This clearly demonstrates discontent
and unrest in the family life of a large number of people of the
society.

29. The courts are receiving a large number of cases
emanating from section 498-A of the Indian Penal Code which
reads as under:-

“498-A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall
also be liable to fine. Explanation.–For the purposes of
this section, `cruelty’ means:-

(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause

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grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand.”

15. An argument has been raised that the petitioners herein are

being declared proclaimed offender and, therefore, the remedy available

with them is to surrender before the Court concerned. This argument is

again not sustainable. I am of the considered view that the summoning order

itself is not sustainable on account of the fact that there is non-compliance

of Section 202 Cr.P.C. Petitioner No.3 is a resident of Britain, petitioner

Dalbir Singh Gill is residing in Gujarat whereas the others are residents of

Dubai, England and Bhopal. If the very summoning order itself is not

sustainable, all subsequent proceedings including declaring the petitioners

to be proclaimed offender would be nonest. This issue regarding whether

the High Court can quash an FIR/complaint if a person is a proclaimed

offender, has been dealt with by a Division Bench of this Court in case

Sudo Mandal @ Diwarak Mandal V. State of Punjab 2011 (2) RCR

(Criminal) 453 and Single Bench of this Court in cases Sanjay Sarin V.

State (Union Territory, Chandigarh) 2013 (3) RCR (Criminal 138 as well

as Deepak Arora V. State of Haryana and another 2015 (7) RCR

(Criminal) 649 has held that criminal proceedings including the order

declaring a person as proclaimed offender can be quashed when there is a

compromise between the parties.

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16. Therefore, this Court has no hesitation in invoking its inherent

powers under section 482 Cr.P.C in allowing the instant petition.

Consequently, the order dated 29.01.2014 by which the petitioners have

been summoned to face trial under Sections 406, 498-A IPC is quashed

along with the protest petition dated 21.03.2014 and complaint No. 15A

dated 26.05.2011 and subsequent proceedings arising therefrom.

17. Both the petitions stand allowed.

18. A photocopy of this order be placed on the file of the connected

case.

09.05.2018 (JAISHREE THAKUR)
Satyawan JUDGE

Whether speaking/reasoned Yes.
Whether reportable No.

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