Harpal Kaur vs Gurnam Kaur

S.S. Sudhalkar, J.

This order shall dispose of both the criminal Misc. Petitions mentioned above.

The petitioners in both these petitions are accused in criminal case pending in the court of Judicial Magistrate I Class, Sunam, titled Gurnam Kaur v. Mohinder Singh and four others for the offence under Sections 405/406/120 B/34 of the Indian Penal Code. The Petitioner in Crl. Mic. No. 9578M of 1992 is the wife of the petitioner in Crl. Misc. No. 10444 of 1992. The complaint was filed against five accused and the summoning order was issued against the petitioners and Mohinder Singh i.e. husband of the complainant. The petitioner Chhaju Singh is the brother of Mohinder Singh. The complaint is regarding the misappropriation of the articles which the complainant had received at the time of marriage.

It is contended by learned counsel for the petitioners that no case is made out for either of the offences as contended by the complainant and, therefore, the complaint be quashed. He has also argued that after 19 years of marriage, it cannot now be believed that the articles must be lying with the petitioners. It is also argued by him that as per the complaint, petitioner Harpal Kaur was not present on the day of marriage. He has also argued that there is no specific allegation as to who was entrusted which article. He has also argued that no article was actually entrusted to the petitioners.

For the purpose of considering these arguments it will be proper to see the relevant portion in the complaint. A copy of the complaint is annexed at annexure P/1 in both these petitions. The relevant portion read over to me is paras 4 and 5 of the complaint which are as under :

"That after solemnisation of the marriage, the above mentioned articles were entrusted to the accused Mohinder Singh and Chhaju Singh and the same were taken into possession and brought to village Bigarwal by both these accused.

That on the next day at village Bigarwal, the Dikhawaceremony (a custom prevalent in Punjab showing the stridan articles to the community) was performed. After the performance of dikhawa ceremony the golden articles were entrusted to accused Chhaju Singh being elder brother of accused Mohinder Singh. (The clothes 21 suits and other beds and iron peti were entrusted to accused Harpal Kaur). The golden Karra was entrusted to Mohinder Singh accused. The articles of wari presented by the inlaws of the complainant were also entrusted to Harpal Kaur accused. All the accused took the possession of all the articles which were entrusted to them on the same day. The articles were entrusted and the above said accused were directed to return these articles to the complainant on demand. However, the accused never returned the Istridhan articles inspite of repeated demands till today."

From the above, though it is clear that entrustment of alleged articles is not shown to have been made on the date of marriage to petitioner Harpal Kaur but there is an allegation that some articles were entrusted to her on the next day of the marriage. Therefore the allegation of entrustment of articles to the petitioners cannot be said to be absent.

Learned counsel for the petitioners has relied on the following cases :

(i) Tej Kaur and others v. Smt. Amarjit Kaur, 1993(1) RCR 299,

(ii) Gurmeet Singh and others v. State of Haryana, 1993(1) RCR 354,

(iii) Sudhir Kumar and others v. State of Punjab, 1992(3) RCR 588,

(iv) Gulab Singh and others v. State of Haryana, 1992(1) RCR 204,

(v) Subhash Chander Dhawan v. Smt. Jyoti, 1992(1) RCR 329.

(vi) Smt. Adarsh and others v. State of Punjab, 1992(1) RCR 667.

In the case of Tej Kaur v. Smt. Amarjit Kaur (supra), it has been held that wife lived at matrimonial home for six years and that the articles of dowry must have been given back to wife by relations during this period, therefore, the case of misappropriation against other than the husband could not be made out.

In the case of Gurmeet Singh and others v. State of Haryana (supra), it has been held that though furniture and some other articles of dowry were alleged to have been entrusted to the wife of brother of the husband but it is neither custom nor the practice to give such type of gifts to husband''s brother''s wife.

In the case of Sudhir Kumar and others v. State of Punjab (supra), it has been held that when complaint regarding misappropriation of dowry articles entrusted at the time of marriage was filed 31/2 years after marriage, it is difficult to accept that dowry articles remained in possession of persons other than husband.

In the case of Gulab Singh and others v. State of Haryana (supra), it has been held that when husband and wife lived together for 8 months after marriage, dowry articles must have been given back to wife by relatives during this period.

In Subhash Chander Dhawan and others v. Smt. Jyoti, it has been held that when husband and wife lived together for four months, they both must have received back the dowry articles and if any dowry article remained at the house of husband, it is only the husband alone who is liable for misappropriation and not his close relatives.

In the case of Smt. Adarsh and others v. State of Punjab (supra), it has been held that when there is FIR regarding misappropriation of stridhan and when no specific mention made in the FIR as to which particular article of dowry was handed over to which particular accused, the FIR qua sister, brother and brother''s wife required to be quashed.

As against the above, learned counsel for the respondent has cited the case of Puran Singh and others v. Surjit Kaur, 1995(3) RCR (Crl.) 121 : 1995(3) AIJ 211 wherein it has been held that when there is a plea that allegations are vague or do not mention as to whom articles were entrusted and that there is a joint entrustment, it was not proper to quash the complaint. He has also cited before me the case of Dharampal Singh v. State of Punjab, 1995(1) RCR 200. In that case FIR was filed by the wife alleging misappropriation of dowry articles and cruelty. It was held that there was no reason to quash the FIR on the plea that there was no specific allegation about entrustment of specific articles of dowry to any particular accused.

Learned counsel for the respondent has cited the case of Devi Lal v. State of Haryana, 1986(2) RCR 512. It has been held in that case that the FIR is not an encyclopaedia of all the details of the crime and the details had to be gathered by the investigator later. This judgment is of course on a different point because the author of the FIR may not necessarily be knowing all the facts as to how the offence took place. The question in criminal complaint is different and the complaint is based on the allegations which the complainant wants to make. Therefore, the respondent cannot take the advantage of the principles in the judgment in the case of Devi Lal''s case (supra).

However, looking to the recent view of this court, as can be seen from the cases cited by the respondent mentioned above, the allegations in the complaint quoted above, cannot be said to be vague. On the contrary in para 5 of the complaint, the allegations against the petitioners are specific as to which of the accused had been entrusted with which article. Therefore, the only question remains is delay in filing the complaint. In the above cases cited by the petitioner''s counsel, the question of delay was considered. However, the delay in a particular case has to be judged from the fact of each case and though in the cases cited by the petitioners'' counsel, the High Court was pleased to quash the proceedings, it cannot be said to be a general principle as to after how much time the complaint cannot lie. In this particular complaint, it has been mentioned that in the month of March, 1990, the marriage of the younger sister of the complainant was solemnised, and that before the marriage in the same month the complainant and her relatives went to village Bigarwal and requested the accused to return back the above said articles of Stridhan, but the accused did not return the same. Therefore, there is allegation of not returning the articles of dowry in the year 1990. The complaint in question was filed on 8.10.90 and therefore, in view of the facts of the present case also the said rulings will not be applicable.

In this case the summoning order passed by learned Judicial Magistrate is produced at annexure P/2. The Magistrate has applied his mind and summoned only three out of the five accused.

In the case of State of Haryana v. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 : AIR 1992 SC 604, the Hon''ble Supreme Court has held that the High Court may, in exercise of powers under Article 226 of the Constitution and under section 482 Cr.P.C., interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice and that the power should be exercised sparingly and that too in the rarest of rare cases. It has enumerated seven categories of cases in which such powers can be used by the High Court. Therefore, even by virtue of the principles laid down in this case by the Supreme Court, the views of the learned Single Judge in the cases cited by learned counsel for the petitioner cannot be accepted.

In view of the above reasons, both these petitions are dismissed.