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Vijay Kumar vs State Of Haryana And Anr on 6 February, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-40572-2015
Date of Decision: 06.02.2018

Vijay Kumar
…Petitioner(s)

Versus

State of Haryana and another

…Respondent(s)

CORAM:-HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. A.P.S. Deol, Sr. Advocate with
Mr. Shakti Pal Singh Mann, Advocate
for the petitioner.

Ms. Dimple Jain, AAG, Haryana.

None for respondent No.2.

ANITA CHAUDHRY, J.

The instant petition is for quashing of FIR No.143 dated

06.06.2015 registered under Section 376 of IPC, Police Station Taraori,

District Karnal.

Both the State and the private respondents have filed reply.

No one is appearing for respondent No.2 for the last two dates.

No one appears even today.

A complaint was given to the Police on 06.06.2015 and when

translated, it reads as under:-

‘Vijay son of Rajpal caste Jangra r/o near
M.C. Office used to visit our house since 2010 and he
took the advantage of my shortcomings and developed
physical relations with me against my will. Out of this
relation one son was born who is now aged 3 years
named and his name is Paras. But now I have started

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hating myself and wish to initiate action against Vijay
aforesaid. It is requested that legal action be initiated
against him and my younger son be subjected to DNA
test to test his paternity with Vijay. On 04.05.2015 day
time also I had physical relations.’

The petitioner filed an application for anticipatory bail and made

an offer that he was ready to get the DNA test. The Investigating Officer

moved an application before the Magistrate to summon the complainant to

get her as well as as her son’s DNA test. The complainant appeared in the

Court and made a statement on oath that she was not willing to get the DNA

test. She was cautioned by the Magistrate that an adverse inference could be

drawn against her but since there was refusal, the papers were ordered to be

tagged with the remand papers.

The petitioner has approached for quashing of the FIR on the plea

that the complainant was a married woman and had 3 children from the

marriage and she had made statements on oath that the children were born

out of the wedlock and that was the reason she refused DNA test as true

facts would have come to light. It was pleaded that despite this, the police

has filed the challan on a complaint which is vague and the police had not

investigate the matter to dig out the true facts. Detailing the events, the

petitioner pleaded that the complainant was married to Vinod Kumar and a

petition for dissolution of marriage was filed by Vinod Kumar and

allegations were levelled that she used to leave the house without informing

and stayed away for number of days. He doubted her. Later, a petition under

Section 13-B of the Hindu Marriage Act was filed and the wife received

Rs.28 lacs as full and final settlement and some amount was deposited in

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FDRs. However, after first motion, the wife wanted to join the company of

the husband and the couple started living together. The petition for mutual

divorce was withdrawn. It was pleaded that the motive for withdrawal was

that she wanted to extract more money and property. It was pleaded that the

complainant insisted on selling the houses and shops and wanted to settle in

Punjab and when her husband (Vinod Kumar) refused to accede to the

demand, she obtained a GPA in her own name and transferred the house in

the name of the minor child. When her husband learnt about the GPA, he

filed a suit challenging the gift deed and the sale deeds executed by Manju

on the plea taken was that the sale deed had been obtained by fraud. It was

pleaded that the petition for divorce filed in 2010 was withdrawn on a joint

statement as she gave an undertaking that she would not act against the

interest of the minor children but went back on her statement and sought

permission from the Guardian Court to sell the property and at that point of

time Vinod Kumar (the husband) was in the Rehabilitation Centre and did

not appear and the petition was allowed ex parte. On attaining knowledge

of the ex parte order, Jaswinder Singh, nephew of Vinod Kumar, filed an

application seeking cancellation of the permission. The case of the

petitioner is that Jaswinder Singh had engaged the petitioner as his counsel

and the complainant started threatening the petitioner to withdraw the

application or face allegations of ‘gang rape’. The petitioner fearing

registration of a case, gave a complaint before the DGP, Haryana in

September 2013. The matter was investigated and enquired and thereafter

complainant gave an affidavit that a compromise had been effected and the

petitioner withdrew his complaint after an affidavit was given in October

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2013 in which she had stated that she would not initiate civil or criminal

litigation against the petitioner.

The case of the petitioner further is that the complainant filed a

petition seeking divorce from her husband and an ex parte decree was

passed and in that petition, she had claimed that all the 3 children were born

out of the wedlock and their names and date of birth were recorded therein

and she had made a similar statement on oath in the petition seeking

divorce. It was pleaded that the petitioner filed a petition seeking direction

to the S.P. Karnal to protect his life and liberty at the hands of Manju and

Nitin as they were again threatening to implicate him. It was pleaded that

since an affidavit had been given, the petition was withdrawn on

25.09.2013 to avail appropriate remedy as per law. It was pleaded that on

11.03.2015, the complainant and her new companion Pankaj Wadhwa

started following the petitioner and threatened to implicate him in some

criminal case and on the basis of his complaint proceedings under Sections

107 and 151 Cr.P.C. were initiated and the complainant was aggrieved by

the proceedings and filed the present complaint levelling false allegations.

It was pleaded that the complainant made a statement under Section 164

Cr.P.C. and improved upon her earlier statement. The petitioner was

seeking quashing of the FIR.

The State in its reply admitted that the petitioner had offered to

get her DNA test and an application was made before the Magistrate but the

complainant had made a statement and refused to get the DNA test. It was

pleaded that challan had been presented and the case was fixed for further

proceedings.

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Respondent No.2 in her reply pleaded that the petitioner could

not invoke the inherent jurisdiction and it was for the trial Court to

adjudicate and finally decide the matter.

The petitioner moved CRM-26020-2017 and placed on record an

affidavit given by respondent No.2 stating that she did not want to pursue

the FIR and had no objection if the FIR was quashed. The authenticity of

the affidavit cannot be checked, the complainant has not cared to appear

therefore the case is being decided on merits.

I have heard the submissions of both the sides.

Counsel for the petitioner has taken me through the documents

appended along with the petition and urges that the complaint is vague and

does not give any details and the petitioner was named in a false case as he

was representing the nephew of the husband of the complainant as she

feared hurdles in her plans therefore she started levelling allegations and

fearing a police case, the petitioner gave a complaint in 2013. The counsel

refers to Annexure P-10. It was also submitted that a complaint was later

filed as the complainant gave affidavit Annexure P-12. The counsel has also

referred to the petition filed by the complainant seeking divorce as well as

the quashing petition. Counsel also refers to the application filed by

Jaswinder Singh nephew of Vinod Kumar seeking cancellation of the

permission granted to Manju to sell the minor’s property. Counsel submits

that the police has filed the challan without verification of facts and

proceedings under Section 107, 151 Cr.P.C. were initiated. The counsel

further submits that the complainant has specifically pleaded that her

children were born from the wedlock disclosing their names and date of

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birth and she had made a statement on oath and had got an ex parte decree

of divorce and it is a fit case where the FIR should be quashed as it is

attended with malafides and with ulterior motive and the complainant

holds a personal grudge. The counsel also refers to the affidavit given by

respondent No.2.

The State counsel states that the challan has been presented and

the complainant had refused her DNA examination.

It is necessary to notice the principles laid down in ‘State of

Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335’ which

read as under:-

“The following categories of cases can be
stated by way of illustration wherein the extraordinary
power under Article 226 or the inherent powers under
Section 482, Cr.P.C. can be exercised by the High
Court either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though
it may not be possible to lay down any precise, clearly
defined and sufficiently chennelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power should
be exercised:-

(1) Where the allegations made in the first
information report or the complainant/respondent No.2,
even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence
or make out a case against the accused.

(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)of

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the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do no disclose the commission of
any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by
a Police Officer without an order of Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)to
the institution and continuance of the proceedings
and/or where there is specific provision in the Code or
the concerned Act, providing efficacious redress for the
grievance of aggrieved party.

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceedings is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”

In Harjinder Kaur and others versus State of Punjab 2004(4)

R.C.R. (Criminal) 332 it was held that even though challan had been

filed and charge had been framed yet there was no absolute bar to

entertain the petition under section 482 Cr.P.C. as each case has to be

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examined on its own facts.

The complainant is a married women with children which she

had admitted to be born out of the wedlock with Vinod Kumar. She had

made a statement before the Court that the children were born out of the

loins of Vinod Kumar. The petitioner could lay hands on the litigation

between the complainant and her husband as he was representing the

nephew of the husband. All the documents which have been made

available by the petitioner are from Court records. There is no dispute

regarding their authenticity or correctness as they are public documents.

On going through the documents, it becomes clear that the

complainant got agitated since an application had been filed by the

petitioner and she felt that hurdles were being created and she would not

be able to reap the harvest and take away the sale proceeds after selling

the minor’s property. On the very face of it, the complaint appears to be

false. It does not give any details. The complainant had made allegations

that the petitioner had been taking advantage of her and had developed

relations. She claimed that a child was born from that union but when

asked to get a DNA test, she refused. Her statement was recorded by the

Magistrate. It exposes the falsity of the allegations. The police should

have tested the statement and they did not bother to investigate the case

properly and rushed to file challan and it has played havoc with the

petitioner’s life. The complaint was given merely to give vent to her

motive and wreck vengeance upon the petitioner. She was holding a

personal grudge and it is a fit case where the extra ordinary power under

Section 482 Cr.P.C. should be exercised to prevent the abuse of process

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of the Court and the authorities. The allegations made in the FIR could

not be have been taken at their face value and the police was not justified

in filing the challan. The petitioner cannot be asked to endure a trial on

frivolous allegations. It would not be correct to send him to face a long

and protracted trial. The process would be extremely long and painful.

Taking into consideration the totality and the peculiar facts and

circumstances, the instant petition deserves to be allowed. Consequently,

the FIR and the subsequent proceedings arising thereform qua the

petitioner are quashed.

(ANITA CHAUDHRY)
February 06, 2018 JUDGE
ps-I

Whether Reasoned/Speaking Yes/No
Whether Reportable Yes/No

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