Anupam and Others vs State of Punjab and Another

Sabina, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure(for short `Cr.P.C.'') for quashing of complaint dated 6.1.2003 (Annexure P3) and summoning order dated 11.10.2005 (Annexure P5) passed by the Judicial Magistrate, Ist Class, Gurdaspur.

Vide the impugned order (Annexure P5), petitioners were summoned to face the trial u/s 406 IPC on a complaint moved by respondent No. 2 (Annexure P3).

Learned Counsel for the petitioners has submitted that the daughter of respondent No. 2-Reema alias Kiran was married with petitioner No. 1-Anupam Kumar. Complainant got registered a case against the petitioners under Sections 307, 498-A, 34 IPC. The petitioners were acquitted by the Court of Additional Sessions Judge Jalandhar. In the said case, the marriage between Reema alias Kiran and Anupam Kumar was annulled vide judgment dated 13.10.2005 (Annexure P1) as it was established that Kiran alias Reema was having a living spouse at the time of her marriage with Anupam Kumar. A complaint u/s 406 could not be moved by the father of Reema alias Kiran as the case could have only been filed in this regard by Reema alias Kiran. Moreover, the said offence ought to have been included in the FIR lodged by Reema alias Kiran.

After hearing the learned Counsel for the parties, I am of the opinion that this petition deserves to be allowed.

It has been held in Rakesh Kumar alias Naresh Kumar v. Prem Lal 1997 (4) RCR (Criminal) 258, wherein, in para 8, it was held as under:

With respect of offences punishable under Sections 406/420 IPC, the sole contention asserted in the complaint is that certain dowry articles were entrusted which have been misappropriated and the petitioners had cheated the respondent by inducing him to deliver the articles of dowry. For purposes of the present petition to go into the question, if ingredients of Section 406 IPC could be attracted or not. This is because of Sub-section (3) of Section 6 of the Dowry Prohibition Act, 1961. It reads as under:

6(3) Where the woman entitled to any property under Sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall:

(a) if she has no children, be transferred to her parents; or

(b) if she has children be transferred to such children and pending such transfer, be held in trust for such children.

It is observed from aforesaid that even if it be assumed that there was some property to which the deceased was entitled, then her parents would not be entitled to claim the same. She had left behind a child who is with the petitioners. The right if any is that of the infant child and not of the respondent. Consequently, it would be an abuse of the process of the Court to permit the complaint u/s 406 IPC.

In Kuljit Singh v. Jasbir Singh 2002(4) RCR (Criminal) 707 , wherein, in para Nos. 9 and 10, it was held as under:

This Section embodies the ancient maxim "nemo debet bis vexani pro eadem causa ( no person should be twice disturbed for the same cause). One of the principle of this Section is that where an accused can be held at one trial for several offences and has not been so tried for all the offences but only for a few he should not be put again in jeopardy for the offences for which he could have been tried at the time but had not been tried. From the bare reading of the aforesaid Section, it is clear that if a person, who has once been tried by a Court of competent jurisdiction for an offence and he has been convicted or acquitted for such an offence, shall not be tried again for the same offence or for any other offences, for which a different charge from the one made against him might have been made u/s 221(1) of the Code or for which he might have been convicted under Sub-section (2) thereof. Sub-section (1) of Section 300 of the Code consists of two limbs. The first limb deals with the case of a person, who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence. Such person shall not be liable to tried again for the same offence while such conviction or acquittal remains in force. The second limb of the Sub-section deals with the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereto. The case of the petitioner is covered under second limb of this Sub-section. Though in the police case, the petitioner and his parents were charged for offences punishable under Sections 302/304-B/34 IPC and they were not charged for offences punishable under Sections 406/498-A IPC, but on the basis of the facts alleged in the FIR, the challan and the evidence came before the Court during the trial, they could have been charged under these offences in exercise of powers given u/s 221(1) of the Code. But neither the complainant/prosecution nor the Court called upon the petitioner and his parents to face trial for offences under Sections 406/498-A IPC though the allegations constituting these offences were very much available. The petitioner has been convicted and his parents have been acquitted in the earlier trial vide judgment dated 6.8.1998. In view of this fact, the petitioner and his parents cannot be tried again on the basis of the present complaint. This view of mine is supported by a decision of this Court in Narinder Singh v. State of Punjab, 1985 (2) RCri R 152 where an accused tried and acquitted of offences u/s 5(2) of the Prevention of Corruption Act then such accused could not be retried for offences u/s 147/158/224/225 IPC. Thus, in view of Section 300(1) of the Code, the present complaint filed by respondent No. 1, brother of the deceased, is liable to be quashed, as the petitioner and his parents cannot be tried again for an offence under Sections 406/498-A IPC on the allegations made therein.

I have also considered the other submissions made by learned Counsel for the petitioner and find force in the same. I have carefully perused the contents of the complaint. The only allegation made against the petitioner is that the dowry articles and the articles of Istri Dhan entrusted to the parents of the petitioner. No specific date and time has been mentioned in the complaint as to when these articles were demanded by Jaskirat Kaur. The allegations of entrustment as well as of demand of dowry articles, which were material facts to constitute an offence u/s 406 IPC, are missing in the complaint. Even otherwise, it is not clear as to how and in which capacity and under which authority respondent No. 1, who is brother of the deceased wife, can made demand of the articles of Istri Dhan. After the death of a wife her estate is inherited by her children, but the same cannot be inherited by her brother as per the provisions of Hindu Succession Act. In view of this fact also, the complaint filed by respondent No. 1 is not maintainable for offences under Sections 406/498-A IPC and the same is liable to be quashed.

In the present case, petitioner No. 1 was married with Reema alias Kiran, daughter of respondent No. 2 on 25.1.1998. No child was born to them. Reema alias Kiran lodged an FIR No. 38 dated 14.7.1998 at Police Station Division No. 1 Jalandhar against petitioner No. 1 to 4. Admittedly, petitioners No. 1 to 4 were acquitted by the Court of Additional Sessions Judge, Jalandhar. Petitioner No. 1 filed a petition u/s 11 of the Hindu Marriage Act, 1955 for annullment of his marriage with Reema alias Kiran. The said petition was decreed by the Additional District Judge Jalandhar vide judgment and decree dated 13.10.2005. A perusal of the said judgment (Annexure P1) reveals that it was established on record that Reema alias Kiran was having a living spouse at the time of marriage with Annupam Kumar. Hence, the marriage of Anupam with Reema alias Kiran was annulled. Reema alias Kiran should have complained regarding offence u/s 406 IPC, also at the time of lodging of the FIR u/s 307, 498-A IPC. Petitioners No. 1 to 4 have already faced trial u/s 307/498-A IPC and they cannot be again put to trial for offence u/s 406 IPC.

Accordingly, this petition is allowed. Complaint dated 6.1.2003 (Annexure P3) and summoning order dated 11.10.2005 (Annexure P5) passed by the Judicial Magistrate, Ist Class, Gurdaspur are quashed.