Lekhraj Kekerja and anr. vs Rayman

G.S. Chahal, J.

Lekhraj Kukreja and his brother Jethanand Kukreja (hereinafter called `the accused'' have been summoned by Shrimati Rekha Mittal, Judicial Magistrate I Class, Chandigarh, vide order dated 18590, for an offence under section 498A, Indian Penal Code, on the basis of a complaint dated 11989 brought by Smt Rayman (for short `the complainant'') who is the wife of the accused1. The accused have come to this Court, in this criminal miscellaneous under section 482, Code of Criminal Procedure for quashing of the complaint Annexure P1 and the proceedings arising therefrom.

The allegations in the impugned complaint may be briefly noted :

The complainant was married to accused1 on 28477 at Delhi.

Out of this wedlock, three children, namely Gaurav, Neha and Rupika were born Rupika was, however, adopted by complainant''s sister, Smt Anup Dhillon. Accused1 and 2 were domiciled in Afghanistan and she herself was domiciled and residing in India till 19788, at N73, Panchsheel Park, New Delhi which she claims to be her exclusive property. A couple of years after the marriage, accused1 started philandering and having affairs with other women. Feeling handicapped by the presence of the complainant in the house, he started harassing and torturing her Initially illtreatment was in the form of neglect, but over the years, this harassment became very brutal, often resulting in violence to her person. For the sake of children, she suffered the brutalities inflicted upon her. On 19788, the accused forcibly threw her out of the house and retained all her properly, including jewellery and Maruti car. Details thereof are given in Annexure P1. She further alleges that previously she was living with her children in her house at Delhi. In September 1987 the accused returned to India via Nepal and started staying in her house, with the sole purpose of picking up quarrels and harassing her. Soon thereafter their sister Smt Aghoo Ram (accused3) took over the control of the house and made her life miserable. The children were poisoned against her and these two accused also treated her with brutality. In September 1987 the accused gave her beating, resulting in headinjury for which she was treated. Her neighbours Shri and Smt Dhameja were witnesses to the atrocities and they, along with others, used to come whenever she was subjected to torture. Most of the time, accused1 lived in Afghanistan, but had been joining hands with other coaccused for accusing and abusing her. She had suffered from hypertension, neurosis and reactive depression. In June 1988 the accused returned to Delhi and he told her that such atrocities would cease only if she agreed to transfer all her property in Delhi to him. She, however, refused to agree to that suggestion. The complainant was not willing to leave her house. Her sister Smt Anup Dhillon visited her from Nabha with a view to get matters patched up and counselled the accused not to maltreat her. The accused, rather, started harassing her, as well as Smt Anup Dhillon. Both of them were shifted in one corner room in the house which was occasionally locked from outside and even food was not supplied to them. The children were also separated from her. Accused1 also withdrew from her society. On 9788 accused1 forcibly pushed her and her sister out of the house at night time. On, the next day, she reported the matter to the Station House Officer of Hauz Khas Police Station. On an earlier occasion also she had made such a complaint. Copy of the complaint being Annexure P4. She then shifted to Chandigarh and started living at her Bhua''s house. Accused1 had been giving threats to her to meet his demands failing which, she and her relatives would be harmed. On 26389, accused 1 and 2 came to the house of the complainant at Chandigarh, along with other persons in a car. Her sister and Bhua were also present there. They placed some typed papers before her and asked her to sign. They shouted on her to transfer the house at Delhi by signing those papers. When she refused to do so, there was a scuffle between her relatives and the accused. Soon thereafter a person came there and both the accused left the place, threatening that as she had refused to sign the papers, she would now be liquidated. On 10599, a truck No. PCN 9054 bit her car with great force. This matter was reported to the SHO, Central Police Station, but the outcome thereof has not been intimated to her. She believed that the accused had attempted to execute their threat and she was in constant fear of the same. She keeps her abode at Patiala for five days and visits Chandigarh on week ends. The complaint filed earlier had been dismissed in default on 31889 and as such, the present complaint was being filed.

The accused placed on record a copy of the earlier complaint Annexure P2 that was instituted on 25889. This was fixed for 31889 and the order recorded by the Court in the said complaint shows that the case was called in the prelunch time and the complainant being not present, it was directed that the case be put up soon after lunch. Again, she was not present when the case was taken up. The complaint was dismissed for nonprosecution. It is not disputed that except the insertion of the occurrence of 10589, of the truck hitting her car, the complaint is otherwise almost a copy of the earlier complaint. On these basis, the learned counsel for the accused urges that no second complaint can be filed unless there were some special circumstances.

Chapter XV of the Code of Criminal Procedure relates to complaints to Magistrates. This Chapter consists of sections 200 to 203 and the last section may be reproduced as follows :

"203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

Chapter XVI deals with commencement of proceedings before Magistrates. Section 204 deals with the issue of process if a Magistrate takes cognizance of an offence and is of opinion that there is sufficient ground for proceeding. Section 256 talks of a situation when the complainant is not present on the appointed day with respect to a case where "summons have been issued on a complaint". Section 249 deals with a situation when the complainant is absent on any date fixed for hearing of the case. This section finds a place in Chapter XIX. Admittedly no process had been issued on the basis of the previous complaint and as such no proceedings had as yet commenced on the basis of the complaint. The complaint was only at the stage of inquiry and the Magistrate was yet to determine if there was a sufficient ground for proceeding. The complaint having been dismissed before it reached the stage of summoning of the accused, the dismissal is to be deemed to be u/s 203, even though no section was specified by the Magistrate in the impugned order of dismissal. Obviously, the Magistrate can dismiss a complaint for non prosecution if the complainant fails to lead evidence or otherwise shows want of interest. I am unable to endorse the argument of the learned counsel for the respondent complainant that the dismissal could be under sections 256 or 249 and not section 203. Those sections obviously relate to the stage when the trial has commenced and not when only inquiry is pending. I derive support from Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432. The Magistrate had dismissed the complaint under section 203 on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court. This order was not deemed to be falling in any other provisions of the Code. Their Lordships went on to hold that a second complaint could lie on new facts or even on previous facts only if a special case is made out. This view is adopted by following the view in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876. In the complaint only a passing reference is made to the fact that a previous complaint had been filed that was dismissed in default. However, no facts were stated as to what stood in the way of the complainant in coming to the Court. Even in the return, the facts were not explained, but it was stated that the complainant could not appear for reasons beyond her control. I am of the view that she has not been able to show that there were special circumstances which justify, the presentation of a fresh complaint on the same facts. The only fact added is the occurrence of 10589 in which a truck is stated to have hit her car, but no other facts are given and a suspicion is thrown that it was the accusedpersons who had attempted to execute the threat. This cannot be deemed to be a fact which had not come earlier and which could form the basis of accusation against the accused.

All the acts of cruelty are alleged to have taken place at Delhi while the complainant was staying at house No. M73, Panchsheel Park, New Delhi where she claims to have lived till 19788 when she was forcibly ejected from the same and regarding which fact, she lodged a report at Police Station Hauz Khas. Another incident of 26389 has been added to the effect that the `accused had approached her at her Bhua''s house and she was asked to sign certain typed papers. When the refused to do so, there was much scuffle between the relations of the complainant present there and the accused." These facts could not attract the provisions of section 498A, IPC. This was a dispute between some of the relatives of the complainant and the accused. If any offence under section 498A, IPC was committed, it was at Delhi and the Chandigarh Court had no territorial jurisdiction to try that offence.

There has been civil litigation between the accused1 and the complainant regarding the custody, of the minor. Ann. P7 is a copy of statement made by the complainant in the Court of the Addl. District Judge, Ambala. A reference to her crossexamination shows that she has been visiting Kabul during vacation of her children from 1984 to 1987. In 1980 accused1 sent her 10,000 dollars and in 1982 he had sent 40,000 dollars (she tried to explain that this amount included her earnings as well). It is also admitted by her that a plot was purchased in Greater, Kailash by accused1 for a consideration of Rs. 16,73,000/, but she did not contribute anything towards its price. She had, however, entered into an agreement to sell that very plot to Sh. Ashim Kyasta for Rs. 61,00,00/ Land received a cheque for Rs. 1,00,000/ which she claims to have not got encashed. The plot was acquired by the Income Tax Authority on the basis that it was being sold for a lesser price. She has levelled allegation of phill andering against her husband. accused1 and in the proceedings before the Guardian Court, accused1 had made an allegation and led evidence of extramarital activities of the complainant with one Virender Kashyap and one of the witnesses who came to support this allegation, was Smt Shashi Naresh Kumar (PW6) wife of Air Vice Marshal Naresh Kumar. Too much of wealth has probably ruined the matrimonial life of accused1 and the complainant. Whatever good accused1 did to the complainant by sending large amounts of cash and purchasing valuable property have, instead of bringing both the spouses close to each other, taken them poles apart from each other. It is clear from Annexure P8 (judgment of the Addl. District Judge dated 15690) that it had been admitted by the learned counsel for the complainant that she had filed a petition for divorce against accused1.

The marriage of the parties having gone to rocks; the complainant having lost the property which had been purchased in her name for a sum of more than Rs. 16,00,000/. which was acquired by the Income Tax Authority on account of an agreement to sell entered into by the complainant, she has now tried to drag her husband, his brother and his sister into litigation at Chandigarh for incidents which are alleged to have taken place at Delhi. To say the least, this is a litigation brought with oblique motive to wreak vengeance from her husband and his close relatives, including his brother and sister. It is a different matter that the learned Magistrate has not proceeded against the sister of both the accused. In Madhavrao Jiwajirao Scindia & ors. v. Sambhajirao Chandrojirao Angre & ors., 1988 SCC (Cri) 234 their Lordships made the following observations :

"..When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider, whether it is expedient and in the interest of justice to permit a prosecution to continue. This is on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate, conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." The special features of the case make out a case for quashing all the proceedings at the preliminary stage as the prosecution has been launched by the complainant wife for an oblique motive.

I hereby accept the criminal miscellaneous and quash the impugned complaint, the summoning order and all the subsequent proceedings.