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High Court of Punjab and HaryanaCRM-M/10899/2017dismissed

Rakesh Kumar v. Devinder Kaur

2017-03-30Mr. Justice Fateh Deep Singh5 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision: 30.03.2017 Rakesh Kumar ....Petitioner

Versus

Devinder Kaur ....Respondent CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL

Present:

Mr. B.S. Saini, Advocate for the petitioner.

REKHA MITTAL J. (Oral) By invoking Section 482 of the Code of Criminal Procedure (in short 'Cr.P.C.'), the petitioner prays for quashing of complaint No.63/2015 dated 10.04.2015 under Sections 494, 108, 120B read with Section 34 of the Indian Penal Code (in short 'IPC'), summoning order dated 04.03.2017 (Annexure P3) and proceedings emanating therefrom.

Counsel for the petitioner has submitted that though the respondent filed a complaint against the petitioner, Sajjan Singh and Sulakshna Kumari but the trial Court has summoned only the petitioner for offence under Section 494 IPC whereas the complaint against Sajjan Singh and another has been dismissed. The petitioner earlier married with Narinder Kaur daughter of late Sh. Jagdish Kumar of village Kharaura, Tehsil and District Fatehgarh Sahib. He got a decree of divorce from Narinder Kaur on 09.05.2013 by filing a petition under Section 13-B of the Hindu Marriage Act before the Court of District

Judge, Fatehgarh Sahib. The statement in first motion of the parties was recorded 06 months prior to 09.05.2013 and as per the compromise, petitioner and Narinder Kaur agreed to perform re-marriage as per their wishes. It has further been argued that before contracting marriage with the petitioner, the respondent performed marriage with Balkar Singh. Further argued that the petitioner and the respondent resided together as husband and wife only for 10 days. The petitioner along with others went to parental house of the respondent, requested them to send the respondent with the petitioner but they refused and threatened to give Rs.10 lacs to the respondent otherwise he will be implicated in false criminal cases. It is argued with vehemence that criminal proceedings initiated by the respondent are nothing short of abuse and misuse of process of law and liable to be quashed.

Another submission made by counsel is that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of routine. The order of Magistrate summoning the accused must reflect that he has applied his mind to the factual and legal aspects of the case. The Magistrate cannot be a silent spectator at the time of recording of preliminary evidence before summoning of the accused and may even himself put questions to the complainant and his witnesses to elicite the answers to find out the truthfulness of the allegations or otherwise and thereafter to examine, if any offence is prima facie committed by all or any of the accused. According to counsel, as the petitioner is residing beyond the local limits of the jurisdiction of the summoning Court, the trial Court was required to follow the procedure under Section 202 Cr.P.C. by calling

for a report from the police. It is vehemently argued that the summoning order may be set-aside and the matter be remitted to the summoning Court for decision afresh after sending for a report from the police under Section 202 Cr.P.C.

I have heard counsel for the petitioner and perused the paperbook particularly the various annexures appended with the petition.

It is pertinent to mention at the outset that disputed questions of fact are not amenable to adjudication in exercise of jurisdiction under Section 482 Cr.P.C. Hon'ble the Supreme Court of India in "State of Haryana vs Chaudhary Bhajan Lal", 1991 (1) RCR (Criminal) 383, has laid down certain principles as to when the Court can exercise inherent jurisdiction to quash the criminal proceedings but at the same time, there is a word of caution that the High Court cannot examine the truth or falsity of the allegations while dealing with a petition under Section 482 Cr.P.C.

In the case at hand, as per allegations of the respondent/complainant, the petitioner performed marriage with the complainant on 16.01.2013 by way of Anand Karaj in Gurudwara Sant Baba Uttam Singh Ji Mohalla Jatpura, Sirhind City, District Fatehgarh Sahib in the presence of accused Nos.2 and 3. At that time, previous marriage of the petitioner with Narinder Kaur was subsisting, therefore, the petitioner has committed an offence punishable under Section 494 IPC.

The petitioner has conceded the factum of his earlier marriage with Narinder Kaur and the said marriage having been

dissolved by a decree of divorce on 09.05.2013 subsequent to his marriage with the complainant in January, 2013. Counsel for the petitioner has not disputed that filing of a petition for divorce even by way of mutual consent would not result in divorce till a decree is passed by a competent Court of law and the decree becomes effective from the date of decree and not from the date of filing of the petition. That being so, the petitioner cannot be heard to say that even if the allegations raised in the complaint are taken on its face value, the same do not disclose commission of any offence and make out a case against the accused/petitioner.

This brings the Court to the plea qua failure of the summoning Court to comply with the requirements of Section 202 Cr.P.C. Indisputably, offence under Section 494 IPC is non-cognizable and the police is not competent to conduct investigation for the said offence. Taking into consideration that the petitioner has not denied his marriage with the complainant in January, 2013 when his previous marriage with Narinder Kaur was subsisting, no useful purpose otherwise would have been served by calling for a report under Section 202 Cr.P.C. This apart, the complainant stepped into the witness-box and examined as many as 03 witnesses and exhibited documents C1 to C15. The trial Court, on appraisal of averments set up in the complaint when examined in the light of oral and documentary evidence adduced in preliminary evidence arrived at a conclusion that there are sufficient grounds to proceed against the petitioner. The procedure followed by the trial Court cannot be faulted with for want of compliance of Section 202 Cr.P.C. In this context, reference can be made to judgment of this

Court "Pardeep vs State of Haryana and another", CRM-M No.15252 of 2010 decided on 18.05.2010.

No other point has been raised.

For the foregoing reasons, the petition fails and is accordingly dismissed in limine. However, nothing stated hereinbefore shall cause prejudice to the petitioner in the proceedings pending before the Court below.

30.03.2017 (REKHA MITTAL) yakub JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No