Rajesh Kumar and Others vs State of Punjab and Another

A.P. Chowdhri, J.—Facts necessary for the disposal of this petition u/s 482, Code of Criminal Procedure, are that Shashi Kanta, Respondent No. 2, mas married to Raghbir Chand at Mohali, District Ropar, on April 10, 1984. For sometime after the marriage, Shashi Kanta and her husband lived with the latter''s parents at Patiala, Later on they started living separately in a rented house in Rajpura Colony, Patiala. A female child was born to them. Both of them were employed in the Judicial Courts in district Patiala. Some differences appear to have arisen and since March 15, 1987, they have been living separately from each other. According to Shashi Kanta, her father had given dowry mentioned in the list annexed with the application, on the basis on which FIR dated February 12, 1988, Annexure P-4, had been entered. When differences arose, Shashi Kanta claimed the dowry articles to be restored to her and on the demand having been turned down, sho lodged FIR under Sections 406 or 498A, Indian Penal Code, at Police Station Mohali, District Ropar, against the husband and several of his relations. The present petition has been filed by husband''s elder brother Rajesh, petitioner No. 1, his wife Kiran Rani, petitioner No. 2, husband''s sister Kamlesh, petitioner No. 4, Kamlesh''s husband Bhag Chand, petitioner No. 3, and another sister Manisha, petitioner No. 5. The case of the petitioners is that no definite allegation had been made against the petitioners that any item of dowry was entrusted to them. They had been married long before the marriage of Shashi Kanta with Raghbir Chand. Both the sisters, Kamlesh and Manisha, petitioners 4 and 5, had been living in their marital homes in Chandigarh, while the elder brother Rajesh alongwith his wife was living at Samana. The petitioners had been involved in the aforesaid criminal case by Shashi Kanta out of spite against Raghbir Chand and to cause undeserved hardship to the petitioners. It was an abuse of the process of Court and therefore, they sought quashing of the FIR in so far as they were concerned.

It may be added that Raghbir Chand instituted a petition u/s 13, Hindu Marriage Act, 1955, against the wife Shashi Kanta on September 25, 1987 (Annexure P-l). When the case came up for respondent''s evidence, she made an application dated February 22, 1988, Annexure P-2, that she did not want to contest the petition and she was willing to make a statement that the marriage be dissolved. Ultimately by order Annexure P-3 dated April 6, 1988, marriage between the parties was dissolved by the learned Additional District Judge, Patiala.

It may further be mentioned that after the registration of the case, the police raided the house of the parents of Raghbir Chand and purported to recover certain dowry articles. On an application made by the husband, the articles were directed to be delivered to him on his furnishing security in the sum of Rs. 20,000/-, undertaking to produce the articles if and when directed to do so by the Court. Against the said order, releasing articles in favour of the husband on superdari, Crl. Revision No. 986 of 1988 filed by the wife was disposed of by a learned Single Judge of this Court on May 15, 1989.

There has been several other rounds of litigation between the said estranged couple. The wife instituted a petition u/s 125, Code of Criminal Procedure, for maintenance for the minor daughter. Thereafter Shashi Kanta filed Crl. Misc. No. 8936-M of 1988 for transfer of those proceedings from one Court to another. The said misc. petition was dismissed by a learned Single Judge of this Court by order dated September 26, 1989.

The husband filed a complaint under Sections 499/500, Indian Penal Code, against Shashi Kanta and her brother, who were summoned and after recording preliminary evidence a charge was framed against them by the learned Addl. CJM, Patiala. Crl. Misc. No. 1745-M of 1989 filed against the order framing the charge was dismissed by a learned Single Judge of this Court by order dated October 5, 1989. Another Crl. Misc. No. 4929-M of 1989 for quashing the said complaint under Sections 499/500, Indian Penal Code, was dismissed by this Court by order dated November 2, 1988. Two more Crl. Misc. Nos. 3803 and 4003 of 1989 filed by the wife were dismissed by this Court on May 22 and May 26, 1989, respectively. Shashi Kanta also made a complaint in writing dated March 17, 1987 (Annexure P-5) against her husband to the District Judge, Patiala, requesting for her transfer to Rajpura. The significance of this complaint is that while Respondent No. 2 levelled allegations against sisters and sister-in-law of her husband, she made no reference to elder brother of her husband, Rajesh, or brother-in-law of her husband, named Bhag Chand. According to the petitioners, this was a supportive circumstance to show that Rajesh and Bhag Chand had been totally falsely implicated.

Return has been filed by respondent No. 2 Shashi Kanta. In the preliminary objection, it was stated that challan was filed by the police on August 14, 1989, and the present petition u/s 482, Code of Criminal Procedure, had been filed 9 months later on April 15, 1990. It was contended that the petition ought to be dismissed on the short ground of undue delay. On merits, the various averments made in the petition were controverted. In particular, it was stated that Manisha, petitioner No. 5, had not been living at Chandigarh. She was posted in District Patiala and she had been living with her parents.

Learned counsel for the petitioners contended that Rajesh, the elder brother of Raghbir Chand, was married as far back as February 7, 1980, more than 4 years before the marriage of Respondent No. 2 with Raghbir Chand. He had been living at Samana and he could not possibly either cause harassment or retain dowry articles, as alleged. With regard to Kamlesh and her husband Bhag Chand, it was pointed out that they were married as far back as March 13, 1976. They had been Jiving as Chandigarh and they had been apparently falsely implicated. With regard to Manisha, it was stated that she was .married in 1983 and had been living with her husband at Chandigarh. The contention, on the face of it, appears simple as well as attractive. A careful consideration of the contention, however, shows that it is based on certain disputed facts. According to the FIR, Raghbir Chand had been administering beating to Shashi Kanta, but he has been doing so allegedly at the instigation of his mother, Kamlesh and Manisha, besides his Bhabi Kiran Rani. The names of Rajesh and Bhag Chand occur in the FIR in the context of entrustment of dowry items. Whether the allegation made in this behalf will be accepted or not, will largely depend on the evidence produced by the complainant. All that can be said at this stage is that there is nothing inherently impossible in the aforesaid close relations of the husband being entrusted with certain items of dowry. In the facts and circumstances of the case, it cannot be said at this stage that entrustment to the aforesaid relations was so highly improbable that the FIR against them should be quashed. It will, however, be open to the learned Magistrate to carefully consider the evidence which may be produced against the aforesaid petitioners and also take into consideration the element of probability, which is an unfailing touch-stone for appreciating the evidence in all criminal trials.

The next contention of the learned counsel is that the alleged cruelty was committed at Patiala and, therefore, the Court at Ropar had no territorial jurisdiction,-! find that prima-facie this contention is untenable. The offences alleged in this case are under Sections 406 or 498A, Indian Penal Code. Having regard to the definition of ''cruelty'' u/s 498A, the harassment of the woman is confined to harassment with a view to coercing her to meet any unlawful demand for property or on account of her failure to meet such demand. The offences under Sections 406 or 498A(1-B), Indian Penal Code, therefore, in the context of dowry, constitute one series of act so connected together as to form the same transaction and, therefore, u/s 220 of the Code of Criminal Procedure both the offences become triable at Ropar. With regard to the offence u/s 406, the allegation of the prosecution is that the articles were entrusted to the accused named in the FIR at Mohali in District Ropar where the marriage was performed. Prima facie, Section 181(4) of the Code of Criminal Procedure, invests the Courts in District Ropar with territorial Jurisdiction.

For the reasons discussed above, I do not find it a fit case for quashing the FIR. It is, however, made clear that nothing stated in this order is intended to prejudice the case of either side and the case will be decided according to law. It is further made clear that it will be open to the petitioners as also the accused who have not been impleaded in the present petition to urge at the stage of framing of charge that there was no evidence collected against a particular accused to justify the framing of charge. It will be open to the learned Magistrate to consider the plea and pass appropriate orders according to law. Such an exercise is not possible in this Court in the absence of the evidence collected during investigation of the case.

Parties through their counsel are directed to appear in the trial Court on July 10, 1990, for further proceedings according to law.