Prem Singh and others vs Surta and others

B.S. Nehra, J.

This is a petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated 12.3.1991, copy Annexure P1, and the summoning order dated 9.4.1991, copy Annexure P4, passed by the Additional Chief Judicial Magistrate, Kaithal.

The allegations in the complaint are these. Complainant Surit (respondent No 1 in this petition) was married to Ishwar son of Jamna on 11.3.1976. Ishwar passed away after 21/2 years of the marriage. Thereafter complainant performed Karewa marriage with Prem Singh (petitioner No. 1 in this petition) who is the cousin brother of Ishwar deceased. At the time of her Karewa ceremony, the complainant took all her belongings including ornaments, clothes etc. from the house of Ishwar Singh to the house of Prem Singh and these articles were handed over to the accused (petitioners in this case). The accused were expecting that the land of Jamna will be inherited by the complainant after her marriage with Prem Singh but they lost their hope of getting the land. The complainant is an illiterate person while Prem Singh is a graduate in Arts and Education. He is employed as Teacher. Initially she was tolerating the high handedness of Prem Singh and other accused but their maltreat contirllted to increase. She received some gifts during the marriage of her brother. These article were also handed over to the accused. Thereafter her brother was blessed with a sone and she received more gift including ornaments and clothes. These were againer handed over to the petitioner. In spite of all this, they were not satisfied with her. They wanted to grab all her belongings. A daughter was born to her on 4.4.1989 out of her wed lock with Prem Singh accused. They expected her to bring motor cycle from her parents on the occasion of the birth of her child. She brought many articles from her parental house but despite this the accused were not satisfied. Eventually they gave her physical beating and turned her out of the matrimonial house. her parents had given Rs. 5,000/ to the accused as loan for the purchase of land. All the articles of her Stridhan valuing Rs. 1,50,000/ are in possession of rhe accused. Her relatives tried to persuade them to keep her in their house. She, therefore, claimed that the accused have committed offences under Sections 406 and 498A of the Indian Penal Code and asked for punishment to be awarded to them for the said offences.

After the filing of the petition under Section 482 of the Code of Criminal Procedure for quashing the aforesaid complaint and the summoning order notice was given to respondents Suriti and the State of Haryana but they did not choose to file andy reply to the petition. Thus the allegations in the petition have remained uncontested.

The case of the petitioners is that the complaint filed by the respondent No. 1 constitutes an abuse of process of the Court and therefore, the same is liable to be quashed. After hearing Shri N.K. Nagar, learned counsel for the petitioners, Shri J.B. Taccoria, learned counsel for respondent No. 1 and Shri K.S. Godara, learned Assistant Advocate General, Punjab, for respondent No. 2, this Court is satisfied that the contention of the petitioners is well founded.

Before discussing the grounds, on which the complaint copy Annexure P1, is liable to be quashed, it is necessary to deal with the preliminary objection raised by learned counsel for respondent No. 1. He contended that since in the instant case, the trial Court has exercised its discretion in summoning the accused on the basis of the evidence recorded by it is not open to this Court to reassess the evidence and make an enquiry whether the conviction, on these allegations, could be based or not. He, therefore, urged that this petition, in the circumstances, is not maintainable. In support of his contention, the learned counsel relied on Des Raj and others v. Satish Kumar, 1991(3) Recent Criminal Reports 132. It has been held in this case that once a Magistrate has exercised his discretion in summoning the accused on the basis of evidence recorded by him, it is not open to High Court to reassess the evidence and make an enquiry whether an order of conviction, in the circumstances, could be passed or not. Accordingly, the High Court had declined to grant the relief prayed for by the petitioners in Des Raj''s case (supra) in exercise of powers under Section 482 of the Code of Criminal Procedure. While reaching this conclusion, the learned Single Judge had placed reliance on the ratio of the judgment of the Supreme Court in Smt. Nagawwa v. Veeeranna Shivalingappa Konjalgi and others, AIR 1976 Supreme Court 1947 in which the apex Court had made the following observations in para2 of the report :

"At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the some and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."

However, in paragraph No. 5 of the report, their Lordships of the Supreme Court hold that in the following cases, inter alia and order of the Magistrate issuing process against the accused can be quashed or set aside :

"(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their fact value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no pruned person can never reach a conclusion that there is sufficient ground for proceeding against the accusal."

It will thus appear that this Court can, having regard to the above referred observations of their Lordships of the Supreme Court in Smt. Nagawwa''s case (supra), quash the complaint in the instant cased once it is found that no case is made out against the accuser or if the allegations in the complaint are found to be patently absurd and inherently improbable.

In this petition, the petitioners have alleged that respondent No. 1 had filed an application under Section 125 of the Code of Criminal Procedure for maintenance, which is pending adjudication and in that application, it was alleged by respondent No. 1 that her parents are very poor and are not in a position to maintain her and her daughter but in the said application, the respondent did not allege anything regarding her handing over Stridhan to the petitioners. By not filing a reply in this petition, the respondent, by implication, would be seemed to have admitted that she did not, in fact hand over her Stridhan to any of he petitioners. Her place in this case, that her parents had given various articles including ornaments, clothes etc, as deserved in the lists, copies Annexures P2 and P2A amounting to about Rs. 1,50,000 is therefore, rendered wholly absurd and hence unacceptable. The petitioners'' case is that respondent No. 1 ahd not been able to produce any evidence about her solemnizing the Karewa ceremony with petitioner No. 1. In other words, they have contested the respondent''s case about her allegation that she had performed Karewa ceremony with petitioner No. 1. No specific date has been mentioned by respondent No. 1 about the performance of the Karewa ceremony with petitioner No. 1 and, therefore, her allegation that she performed such a marriage with petitioner No. 1 does not inspire confidence. On this score along her entire Case as set out in the complaint must necessarily crumble to the ground. In a similar case, in Shiv Kumar and another v. Jaswant Singh and another, 1992(1) Recent Criminal Reports 236. This Court had quashed the complaint under Section 506/323 of the Indian Penal Code holding that the allegations were absurd and inherently improbable.

The complainant''s plea that the petitioners stated harassing her after they lost hope to get the land belonging to her previous husband Ishwar Singh is highly improbable for it is unimaginable that petitioner No. 1 would have agreed to marry her merely on the basis of her herbal assertion that she will get the property of her previous husband. The legal position is quite obvious that the complainant would have lost the right to the property of her previous husband once she chose to perform a second marriage and, therefore, her case that the petitioners had entertained any hope to get the property of her previous husband is untenable. The allegations in the complaint regarding her handing over stridhan to the petitioners is totally vague inasmuch as she had said nothing about her handing over nay particular article of her Stridhan to any particular petitioner by name. On the contrary, her allegation is general in character inasmuch as she has proceeded to allege that she had handed over all her articles including gold ornaments, clothes etc. to all the petitioners without specifying as to which of the petitioners had retained which specific article belonging to her. It has been held in Harbans Lal and another v. Rama Rani, 1992(1) Recent Criminal Reports 682 that where a wife failed to level any specific allegation against accused regarding entrustment of any specific article of dowry. The proceedings under Section 406 of the Indian Penal Code against the accused are liable to be quashed.

No time, date or month has been mentioned in the complaint by respondent No. 1 about her alleged harassment at the hands of the petitioners. The allegations in the complaint are, therefore, totally wage and the complaint is liable to be dismissed on this score alone.

After careful consideration of the arguments of the learned counsel for the parties, the allegations in the complaint are not only found to be absurd but are totally improbable. Besides, the allegations regarding entrustment of articles have also been found to be totally vague. In the circumstances, this petition is allowed and the complaint dated 12.3.1991, Copy Annexure P1, and the resultant proceedings including the summoning order dated 9.4.1991, copy Annexure P4, are hereby quashed.