SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vijay Kumar Malhotra And Anr vs Poonam on 23 April, 2018

Crl. Misc. M-8565-2014 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Misc. M-8565 of 2014 (OM)
Date of Decision: April 23, 2018

Vijay Kumar Malhotra and another

…Petitioners

Versus

Poonam

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Ashish Bakshi, Advocate
for the petitioners.

None for the respondent.

********

JAISHREE THAKUR, J.

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

for quashing the RBT Act Complaint Case No.103/12, DV Act No.75 dated

06.12.2012 titled as “Poonam vs. Sanjeev Kumar Malhotra and others”

under Section 12 of Protection of Women from Domestic Violence Act,

2015 (for short ‘the DV Act’) pending in the court of Judicial Magistrate Ist

Class, Hoshiarpur as well as summoning order dated 03.04.2014 and the

subsequent proceedings.

2. In nutshell, a marriage was solemnized between the respondent-

complainant and petitioners’ son namely Sanjeev Kumar Malhotra on

04.03.2010 at Hoshiarpur, Punjab, which was a second marriage of both of

1 of 8
06-05-2018 13:16:35 :::
Crl. Misc. M-8565-2014 -2-

them. After some time of the marriage, the respondent-complainant and the

petitioners’ son started living separately in a rented accommodation from the

petitioners and have also taken away all the dowry articles/good related to

them. It is submitted that while leaving the house of the petitioners, both

the respondent-complainant and the petitioners’ son sworn a joint affidavit

before the Executive Magistrate, Ludhiana, Punjab on 07.09.2011 to this

effect. However, the matrimonial life of the respondent-complainant and the

petitioners’ son could not survive the test of time, which resulted in filing

the complaints under the DV Act as well as under Section 125 Cr.P.C. It is

mentioned that petitioner No.1 has also disowned the complainant and his

son on 15.09.2011 by way of a newspaper publication.

3. Learned counsel appearing on behalf of the petitioners argues

that a perusal of the complaint filed by the respondent-complainant under

the DV Act, would not make out any offence against the petitioner herein.

It is submitted that no specific allegations have been levelled against the

petitioners herein with regard to any act of harassment or cruelty at any

point of time. Rather, in the complaint, there is no mention of date of

marriage, date of desertion or of any domestic incidence, if any occurred

against the respondent-complainant, apart from filing the said complaint

without an affidavit in support thereof. It is contended that the joint

affidavit sworn by both the respondent-complainant as well as petitioners’

son before the Executive Magistrate, Ludhiana, clearly mentioned that they

have no concern with the petitioners in any manner and have also taken

away all the dowry articles/goods belonging to them. It is argued that the

trial court has issued the impugned summoning order, without considering

2 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -3-

any domestic incident report or without considering that whether any

domestic relationship subsist or not between the parties. In support of his

arguments, learned counsel relies upon judgments rendered in Rashmi Jain

vs. State of U.P. and another, 2014(1) Scale 415, Jaswinder Kaur and

others vs. State of Punjab and another, 2014(1) Crimes 442 and Rama

Singh vs. Maya Singh and others, 2013(1) RCR (Criminal) 846.

4. Notice of motion was issued in the matter, pursuant to which

Mr. Bhanu Pratap Singh, Advocate caused appearance on behalf of the

respondent-complainant. In the order dated 10.08.2015, passed by this

court, it is noted that the respondent did not want to file reply to the instant

petition. On 24.04.2017, there was no appearance on behalf of the

respondent-complainant and the matter was fixed for arguments.

Thereafter, on 21.11.2017, on the request of learned counsel appearing on

behalf of the respondent, the matter was adjourned to 07.03.2018. On

07.03.2018, once again no one had put in appearance on behalf of the

respondent-complainant and the matter was listed for today for final

disposal. Even today, no one puts in appearance on behalf of the

respondent-complainant to address arguments.

5. I have heard learned counsel for the petitioners and have also

perused the record as well as judgments cited.

6. The Protection of Women from Domestic Violence Act came to

be enacted in the year 2005 when a need was felt that adequate protections

were not being given to women, despite special provisions as provided

under Section 498-A of Indian Penal Code. The legislature was of the

opinion that there is abuse in a domestic relationship, which might be on

3 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -4-

account of dowry or otherwise and women were to be afforded protection in

that relationship. The term ‘abuse’ was given a wide connotation, which

could be sexual abuse, verbal and emotional abuse and economic abuse,

besides the physical abuse. Section 2 (f) of the DV Act, defines the terms

“domestic relationship” as under;

“domestic relationship” means a relationship
between two persons who live or have, at any point of
time, lived together in a shared household, when they
are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are
family members living together as a joint family”

7. This court has inherent powers under Section 482 Cr.P.C.

which can be exercised when it is found that the allegations are baseless or

when in a given circumstances, continuation of the proceedings would

tantamount to an abuse of process of law. 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 court can exercise

its 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 a latest

pronouncement in the case of Parbatbhai Aahir alias Parbatbhai

Bhimsinhbhai Karmur and others vs. 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 as follows :

“(i) Section 482 preserves the inherent powers of the

4 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -5-

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
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

5 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -6-

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; and

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

(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

6 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -7-

the balance.”

8. This High Court too in Jasvir Kaur and another vs.

Manpreet Kaur, CRM-M-29792 of 2011, decided on 01.04.2015 and Amit

Aggarwal and others vs. Sanjay Aggarwal and others, CRM-M-36736 of

2014, decided on 31.05.2016, has allowed the petitions under Section 482

Cr.P.C. and quashed the complaints filed under the DV Act, holding them to

be an abuse of process of law.

9. In the case in hand, the marriage between the respondent-

complainant and the petitioners’ son was solemnized on 04.03.2010 and

thereafter, they started living separately from the petitioners herein in a

rented accommodation and also taken away all the dowry articles/goods

related to them and also sworn a joint affidavit to this effect before the

Executive Magistrate, Ludhiana on 07.09.2011 (Annexure P-2). In the said

joint affidavit dated 07.09.2011, it is clearly mentioned that the respondent-

complainant and the petitioners’ son have left with no concern with the

petitioners herein. It is also mentioned therein that as per compromise dated

09.07.2011, all her ornaments have been received by the respondent-

complainant, apart from dowry articles/istridhan. It is further mentioned

therein that the respondent-complainant and her husband have separated

their mess and residence from petitioner No.1. Till the time, the respondent-

complainant and her husband separate from the petitioners herein, there is

no complaint of domestic violence made by the respondent-complainant.

This court has also minutely gone through the complaint filed by the

respondent-complainant under the DV Act (Annexure P-1) which does not

find mention any allegations qua the petitioners herein either specific or

7 of 8
06-05-2018 13:16:36 :::
Crl. Misc. M-8565-2014 -8-

general, which forced the respondent-complainant to invoke the provisions

of the DV Act qua the petitioners herein. Moreover, no reply has been filed

on behalf of the respondent-complainant to the instant petition and even

despite several opportunities being granted, no one put in appearance on

behalf of the respondent-complainant to address arguments on her behalf.

Therefore, from the averments made in the complaint itself, it is abundantly

clear that there is no reference as to how and in what manner, a domestic

relationship exists between the respondent-complainant and the petitioners

herein as defined in Section 2 (f) of the DV Act. Consequently, the

complaint filed under the DV Act is clearly not maintainable against

petitioners herein.

10. In view of the foregoing discussion and ratio of law, the

petition in hand stands allowed. Consequently, the complaint filed under the

DV Act along with all the subsequent proceedings arising out of the same,

including the impugned summoning order, are hereby quashed qua the

petitioners herein.

(JAISHREE THAKUR)
April 23, 2018 JUDGE
vijay saini

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

8 of 8
06-05-2018 13:16:36 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation