Kartar Singh vs Rajdev Kaur and anr.

S.S. Rathor, J.

This petition under Section 482 of the Code of Criminal Procedure, has been filed in this court. seeking quashing of complaint under Section 406/498A/34 of the Indian Penal Code (Annexure P 1) and the impugned order dated 9th of October, 1989, passed by Additional Chief Judicial Magistrate, Ludhiana, issuing process by way of summoning of the petitioners for an offence under Section 406 of the Indian Penal Code. It is made clear that none of the accused in the complaint has been ordered to be summoned for the offence other than 406 of the Indian Penal Code.

The marriage between Rajdev Kaur complainant and Pritpal Singh, son of the present petitioners, admittedly took place on 29th of November, 1985 at Ludhiana. Unfortunately, the marital bondage between them could not last long and after a few months of the marriage, the spouses separated from each other.

On 14051988, the present respondent Rajdev Kaur filed a complaint under Sections 406/498A/34 of the Indian Penal Code, in the court of Additional Chief Judicial Magistrate. Ludhiana, against respondent Nos. 2 and 3. who are her fatherinlaw and motherinlaw respectively a and her husband respondent No. 1. For facility sake the operative part of the complaint is reproduced below :

"The complainant submits as under :

That the accused No 2 is the father and accused No. 3 is the mother of the accused No. 1.

That the complainant was married with the accused No. 1 on 1 29111985 at Ludhiana according to Sikh rites.

That at the time of marriage, all the accused raised a demand of scooter for accused No. 1 alongwith the articles mentioned in Annexure 1. The parents of the complainant paid Rs. 13500/ for scooter alongwith the articles mentioned in Annexure A to all the accused at the time of marriage in presence of relatives including Zorawar Singh and Gajjan Singh and others and entrusted all these articles alongwith cash to all the accused with a clear direction that all these articles, were the Istri Dhan of the complainant and the accused should hand over the same to the complainant on her demand.

That after the marriage the behaviour of the accused remained cordial only for a few days and thereafter "all the accused" started maltreating the complainant and demanded more dowry. The complainant and her parents did their best to satisfy the accused and the complainant was subjected to too much beatings which caused physical and mental cruelty to the complainant ''whenever she failed to meet the demands of dowry raised by the accused.

That the accused No. 1 is an alcoholic and had created an atmosphere in the house, where the complainant apprehends danger to her life as she has failed to meet the demand of Rs. 50,000/ raised by the accused No. 1 for the purchase of a plot. The complainant was beaten by all the accused, as she failed to meet the demand of Rs. 50,000/.

That the attitude of all the accused have put on depression in the mind of the complainant and numbers of times she thought of committing suicide as her life has been made a hell by all the accused as she has failed to meet the demand of dowry raised by the accused.

That after the marriage the complainant requested the accused to hand over the Istri Dhan i.e. the articles mentioned in the Annexure A, entrusted to the accused by the parents of the complainant on behalf of the complainant but the accused have refused to hand ever the articles to the complainant and has dishonestly converted these articles to their own use.

That the complainant was turned out of the house after giving severe beatings in the month of April, 1986 and since then the complainant is residing with her parents at BXX767, Gurdev Nagar, Ludhiana.

That the complainant and her parents made every effort so that the accused may keep the complainant but the accused did not change their attitude and their lust for dowry did not end.

That in a last effort the complainant''s father alongwith Zorawar Singh and Gajjan Singh approached the accused in the month of March, 1988 and requested them that accused should keep and maintain the complainant but the accused flately refused to accede to the request of the complainant''s father and others. On the other hand they insulted them. As all the efforts put in by the complainant and her parents failed to hand over the articles of Istri Dhan, the complainant''s father requested the accused in the presence of Zorawar Singh and Gajjan Singh but the accused flatly refused to hand over the Istri Dhan mentioned in Annexure and in fact they dishonestly converted the articles for their own use.

That all the accused with common intention have misappropriated the Istri Dhan belonging to the complainant and have also caused cruelty to the complainant as she failed to meet the demand of dowry raised by the accused. That all the accused by committing aforesaid acts have committed offences under section 406/499A/34 IPC within the territorial jurisdiction of this Hon''ble Court.

It is, therefore, prayed that the accused be summoned, tried and punished according to law.

......Complainant.

Dt. 14051988

Sd/ Rajdev Kaur,

Through Counsel, Sd/ Hemant Kalia

Advocate

Sd/ Balbir Singh Gill,

Advocate "

After taking cognizance of the complaint and recording of perliminary evidence. the learned trial court passed the impugned order dated 9th of October 1989 (annexure P 2) ordering issuance of summons against, the accused in the complaint, for an offence under section 406 of the Indian Penal Code, only.

Feeling aggrieved of the proceedings initiated against the present petitioners, they filed the present petition in this court on 20th March, 1990. The respondents having been served in this petition have put in appearance through their counsel Mr Ashok Aggarwal, Advocate.

Mr. Gill. learned counsel for the petitioners has vehemently argued that even if the complaint as it is taken on its face value, no offence under Section 406 of the Indian Penal Code, is made out and issuance of process for summoning the petitioners is nothing but abuse of process of law. He has further argued that the impugned summoning order is sketchy nonspeaking and cryptic.

A bare reading of the complaint shows that there is no allegation therein as to whom the alleged Istri Dhan was entrusted. The entrust of specific articles is to be alleged specifically against the accused in question Vague, general and unspecific allegations regarding entrustment are of noconsequence. In the complaint in question, of course; it is alleged that demand of a scooter of the value of Rs. 13500/ was raised alongwith articles of dowry and it is further alleged that the same were given to all the accused at the time of marriage. Remaining parts of the complaint relate to alleged acts of maltreatment and cruelty. No discussion is being made on this aspect of the matter as no order of summoning has been passed for an offence under section 498A IPC. It is also alleged in the complaint that in the month of April 1986, she was thrown out of the house and since then she is living with her parents at Ludhiana. In the ending part of the complaint, it has been alleged that in the month of March, 1988 the accused were requested to keep the complainant but the accused refused to keep the complainant. Allegation is also made in the complaint that requests made by father of the complainant to return the Istri Dhan was declined in the presence of witnesses mentioned in the complaint

Analytical examination of the facts as alleged in the complaint reveals that there is no allegation, clear, specific in nature against each of the accused both on the point of entrustment of Istri Dhan and refusal by either of them on demand by the complainant. If the complaint lacks in material particulars and fails to make out a case of entrustment of articles the allegations regarding demand for return and refusal to return become irrelevant. Of course refusal to return Istri Dhan on demand is an offence but it would only be an offence when precondition of proof of entrustment of Istri Dhan is proved. In other words a person is bound to return the Istri Dhan only when he is entrusted with the same in terms of Section 403 IPC. In the complaint the words used are that the Istri man was enthused to the accused". The words "to the accused" are undoubtedly vague, unspecific and o f general nature.

This court in reported judgment Dhan Devi v. Deepak, 1989(1) Recent Criminal Reports 278 delivered by brother J.S. Sekhon, J. has held that if the allegations in the complaint are that the Istri Dhan was entrusted to "all the accused", such allegations are vague and the complaint is to be quashed. This judgment is. fully applicable to the facts of the present case and in my considered view no case against the accused other than husband can be said to be made out. It is to be further added that this court has consistently adopted such like views in different judgments and brother S.S. Garewal, J. after considering various judgments of this court in the light of a Supreme Court judgment reported as 1985(1) RCR(Crl.) 539 (SC) : AIR 1983 (SC) 628 : Pratibha Rani v. Suraj Kumar has held that for making out an, offence under Section 406 IPC, the allegations should be clear, specific and unambiguous in nature and if the allegation; to that effect are not contained either in the complaint or in a FIR, the is me are liable to be quashed, in his decision reported as Gunwant Raj and ors. v. Madhu Sharma, 1991(1) RCR 607.

Nothing in detail need to be said against the impugned order dated 9th October, 1989 (annexure P2) except that the trial court has not passed a speaking order. In the impugned order only mention. is that such and such PWs have been examined, who have corroborated the statement of the complainant. There is no mention as to whether statements made in the court contain the essential ingredients of attracting the provisions of Section 406 IPC. I, need not discuss much, about the impugned order as I have already held that no offence cognizable under, Section 406 IPC, is made out as per the allegations contained in the complaint (Annexure P11).

The present petitioners who are parents, of accused Pritpal Singh (non petitioner) are stated to be aged more than 80 years. To that effect duly sworn affidavit of petitioner Kartar Singh has been filed with this petition. No reply, rebutting this allegation either by way of affidavit or during the course of arguments has been given. The facts having not been rebutted would be deemed to be accepted. It is also not much in dispute that the complainant and her husband are living apart from each other since early 1986 In the background of these facts, the filing of ''the complaint at a belated stage is nothing but a device adopted by the complainant to harass the old parents of her husband; husband being not available to her admittedly having not been heard of since mid1986.

In view of my observations and reasons assigned. above. this petition is allowed. The complaint (Annexure P 1) and the impugned summoning order dated 9th day of October, 1989 (Annexure P2 and all consequent proceedings pending before the trial court are ordered to'' be quashed qua the present petitioners.