Asha Devi vs Suman Lata

R.L. Anand, J.

Smt. Asha Devi is the married sister of Devinder Kumar respondent No. 2, and Sohan Lal is her husband. Similarly Smt. Saroj Rani is the sister of Devinder Kumar respondent No. 2 and Jaswant Singh Petitioner No. 4 is her husband all the four petitioners have filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for the quashment of the complaint as well as summoning order visavis them when they were summoned by the Magistrate under Section 406 IPC vide order dated 10.6.1996 on the basis of the complaint filed by Smt. Suman Lata, respondent No. 1 under Sections 406 and 498A read with Section 34 IPC.

The case set up by respondent No. 1 in brief in para No. 2 of her complaint at one stage was that at the time of her marriage, her parents and relatives gave articles in the shape of gifts as per AnnexureA forming part of the complaint and these articles of gifts constituted of her Ishtridhan and said list was read over to all the accused including the petitioners who attended the marriage. Out of the articles mentioned in the list AnnexureA, ornaments except earrings were entrusted to accused No. 3, 4 and 6 namely Kanta, Asha and Saroj and other ornaments were entrusted to accused No. 1, 2, 5 and 7. It has further been alleged by the complainant that the accused persons were merely trustees and custodians of Ishtridhan and they were legally and morally bound to return the said articles and gifts on demand as it was clearly made to them at the time of entrustment. So much so all the accused took these articles to village Rampur Sahni whereas the ownership of the same was that of the complainant. In para No. 5 of the complaint, Smt. Suman Lata made her position clear by stating that on 10.10.1994 accused No. 2 and 3 gave her beating and turned her out from the house alongwith baby in three wearing apparels and kept the articles mentioned in the list AnnexureA. This averment made by the complainant clearly indicates that entrustment if any was visavis accused No. 2 and 7 who are not petitioner before me. A reading of paras No. 6 and 7 of the said complaint further makes it clear that on 11.2.1996 the complainant and her father in the presence of one Mahan Singh member panchayat went to village Rampur Sahni and demanded Ishtridhan as detailed in AnnexureA of the complaint but he refused to hand over the same. Rather they threatened them. Thus the above would show that the entrustment if any was visavis accused No. 1 to 3 namely Tilak Singh, Davinder Kumar and Smt. Kanta who are not party to this petition and there is no specific averment with regard to the entrustment of the dowry articles/Ishtridhan to the present four petitioners. This part of the complaint has been dealt with by the learned Magistrate in para No. 3 of the impugned order by stating as follows :

"Testimony of PW 1 to PW 3 establishes that they were present at the time of marriage of complainant with accused No. 1, whereas accused No. 2 to 7 were also present and at that time dowry articles were entrusted to accused No. 1 to 7. Testimony of PWs prima facie shows that golden and silver ornaments alongwith TV, Refrigerator etc. were given to all the accused persons jointly. Further testimony of PW 1 establishes that articles were not returned, but have been misappropriated by the accused person by way of selling the same. As entrustment of dowry articles is prima facie shown to be made to accused persons who are related to husband of complainant being parents, sisters and brothersinlaws of complainant''s husband and as such prima facie it can be said that offence of criminal breach of trust was committed by all the accused. In this respect I am supported by ratio of case. Sudhir Kumar v. State of Punjab and another, 1995(1) RCR 265. So all the accused persons are ordered to be summoned for offence under section 406 read with Section 34 IPC".

The learned counsel for the petitioners submits that the present complaint was nothing but an abuse of the process of law and the order dated 10.6.1996 does not stand in the way of the present petitioners in invoking the powers under section 482 Cr.P.C. by this Court. On the contrary Shri Sandeep Chopra, learned counsel appearing on behalf of the contesting respondent submit that in view of the observations made by the Hon''ble Supreme Court in 1992 Cri.L.J. 3779 K.M. Mathew v. State of Kerala and another, this Court should not and cannot invoke powers under Section 482 Cr.P.C. and the only course left to the petitioner is to approach the Magistrate under Section 345 Cr.P.C. and convince him that the complaint was an abuse of the process of law and that it was oppressive and that no offence was made out and the learned Magistrate will be competent to recall his order.

The position of law has been crystalised in the celebrated judgment reported as AIR 1992 Supreme Court 604 : 1991(1) RCR (Cri.) 383 State of Haryana v. Ch. Bhajan Lal and others, and in this regard it will be useful for me to refer to some of the guidelines which have been enumerated by the Hon''ble Judges of the Apex Court :

(1) Where the allegations made in the First Information Report of the complaint, 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 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 not 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 noncognizable offence, no investigation is permitted by a police officer without an order of a 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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding 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.

Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary power or inherent powers, quashing of FIR was not justified".

In guide line No. 1 of the judgment, the Hon''ble Judges were pleased to say that where the allegations made in the FIR or the complaint, 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, the High Court is justified in invoking the powers under Section 482 Cr.P.C. This position of law has also been incorporated in 1983 Recent Criminal Reports 73 Municipal Corporation of Delhi v. Ram Kishan, where it was held by the Hon''ble Supreme Court that proceedings against the accused in the initial stages can be quashed only if on the face of the papers accompanying the same no offence is constituted. In other words the test is that taking the allegations of the complaint as they are without adding or substracting anything, if no offence is made out then there will be justification in quashing the proceedings by exercising powers under Section 482 Cr.P.C. Besides the inherent and improbabilities regarding the entrustment of the dowry articles to the present petitioners who are married and are residing separately from the place where the alleged entrustment and the taking of the dowry articles have been alleged in the complaint, this Court has further come to this conclusion that if the allegations of the complaint are taken on its face value there are inherent contradictions and there is no specific evidence to clinch prima facie about the alleged entrustment in favour of the petitioners. The citation relied upon by the learned counsel for the respondents holds its field in its own seat and this court also has no dispute with the proposition of law laid down by the Hon''ble Supreme Court. The judgment of the Hon''ble Supreme Court as relied upon by the learned counsel for the respondents does not debar or take away the jurisdiction of this Court under Section 482 Cr.P.C. but lays down that Section 482 should not and cannot be invoked if there is an effective alternative remedy available to the petitioners. Of course the petitioners can convince the learned Magistrate that the complaint or summoning order was nothing but an abuse of the process of law and requires to be recalled but the petitioner can also satisfy this court that the allegations taken on its face value are oppressive and do not constitute prima facie any offence, then it becomes the duty of this Court to protect every individual from the botheration and the mental agony one has to face before the criminal courts for suffering the trial. The petitioners in the present case are not the ordinary residents of village Rampur Sahni. They are the ordinary residents of district Gurdaspur as well as Hoshiarpur. It is not the case of the complainant that the entrustment was at that place or that they had taken the dowry articles to their respective houses. It appears to this Court from the averments made in the complaint that these four petitioners have been dragged on account of their relationship with respondent Davinder Kumar and such an attitude and conduct on the part of Smt. Suman Lata complainant cannot be allowed to be encouraged by this Court.

Resultantly, the present petition is hereby allowed and directions are given to the learned Magistrate not to proceed against the present four petitioners under Section 406 IPC on the basis of the impugned order dated 10.6.1996. The petition stands allowed in the above terms making it clear that it will be open for the Magistrate to proceed against the remaining accused according to law.