Nirmal Singh v. State Of Punjab & ANR
!"!#$!
% &'()
* #+, (!%- !./"/% &() #.), 01
/#2 34/ 5) 66666666!(/(/% !# 7!#"*"
4( (!%-* 9
%()!#" 6666666 !":%
!
("
01
;
<)=/
!#4/ 5) 6666666666!(/(/% !# 7!#"*"
4( (!%-* 9
%()!# 6666666 !":%
!
("
& >;46 4 ?
@
!"
"
"
#"
$ % &'("
% ) !
* "' +, - '
&(".##
.
#) / 0#&)(" &
* ' 1
0 !
&)("
!"
/.&&
* ' 1
?
@,6
2" ' "
/*&/3' 1% &(" ' 4 5"!("# 6 *" *% & #
+" * && 7" 8,* 9# "( *":; No.08 dated
02.02.2016, under Sections 406, 498-A, 420 IPC, registered at Police Station City, Women Cell, Amritsar City, which has been registered at the instance of respondent No.2.
2.
By this common order, both the petitions are being decided together, since arising out of the same FIR.
3.
Petitioner-Lakhwinder Singh is the husband of respondent No.2/ complainant and petitioner-Nirmal Singh is the father-in-law of respondent No.2. The FIR has been registered against the petitioners with the allegations of cruelty, demand of dowry and misappropriation of Istridhan. 3.1 The facts of the prosecution in brief are that the marriage between petitioner-Lakhwinder Singh and respondent No.2 was solemnized on 02.02.2010 at Amritsar. Respondent No.2 returned back from Canada for the purpose of her marriage. As per the demand of petitioner-Lakhwinder Singh, respondent No.2 opened a joint bank account and deposited a sum of Rs.2,00,000/-. At the time of marriage, the petitioners and their family members raised various demands. The family members of respondent No.2 fulfilled all the said demands with the hope that respondent No.
2 would settle happily in her matrimonial home. At the time of marriage, the petitioners were handed over all the articles including the gold ornaments as per the list, which is a part of the FIR. The said articles were given as Istridhan of respondent No.2 which included 35 tolas of gold ornaments. A sum of Rs.3,00,000/- in cash was also given as shagun as per the demand of the petitioners. On the next day of marriage, the petitioners and two married sisters-inlaw of respondent No.2 started demanding more articles. Respondent No.2 was asked to arrange money for a trip to Goa and she was also subjected to physical violence at the hands of her husband-Lakhwinder Singh/petitioner. The unmarried sister-in-law and petitioner-Nirmal Singh (father-in-law of respondent No.
started torturing and harassing respondent No.2 physically as well as mentally for the said demand. As such, respondent No.2 informed about the said episode to her mother. However, she was advised by her mother to wait for some time and she was further advised that with the passage of time, things will be adjusted. 3.2 It is further alleged by respondent No.2 that when she visited the house of her parents, her husband demanded cash of Rs.50,000/- from her, which was refused by her due to which, she was subjected to physical violence in the presence of her mother. However, with the intervention of the family members, the matter was compromised and a sum of Rs.20,000/- was paid to the husband of respondent No.2.
When she returned back to her matrimonial home, she was physically assaulted by the petitioners including her three sisters-in-law by dragging her from her hair and her father-in-law slapped her and also demanded to arrange a visa for all the said persons for going to Canada. The husband of respondent No.2 used to drink and beat her, as such, in order to avoid the said circumstances, she went back to Canada in April 2010. A girl child was born out of the said wedlock in September 2010 and by that time, the husband of respondent No.2 also shifted to Canada. As pressurized by the petitioners, respondent No.2 prepared all the documents and incurred all expenses for arranging Permanent Residency status of her husband-Lakhwinder Singh/petitioner.
After getting the said status, the attitude of her husband deteriorated and whenever respondent No.2 used to visit India, she was subjected to cruelty and mental harassment. 3.3 Petitioner-Lakhwinder Singh filed a divorce petition in Canada in a fraudulent manner and insisted respondent No.2 to visit her parental house for three months. When respondent No.2 visited her paternal house, she received a copy of the divorce petition. Respondent No.
Istridhan but she was physically assaulted. As such, she reported the matter to the Police as she came to know that the whole drama of marriage was only to get the Permanent Residency status of Canada and she has been cheated, maltreated and harassed by the petitioners and her Istridhan has also been misappropriated. CONTENTIONS ON BEHALF OF PETITIONER LAKHWINDER SINGH (HUSBAND) 4.
Mr. R.S. Bains, learned Senior counsel appearing on behalf of the petitioner-Lakhwinder Singh contends that the respondent No.2-complainant has concocted a story and levelled false allegations against the petitioners. The petitioners have neither demanded any dowry nor they have caused any cruelty to respondent No.2. The marriage of the petitioner-Lakhwinder Singh (hereinafter referred as "the husband") was solemnized with respondent No.2 on 02.02.2010 at Amritsar. After the marriage, respondent No.2 stayed in India only for a short period of less than 02 months and then she returned back to Canada. Thereafter, the petitioner also went to Canada in October 2010. After going to Canada, respondent No.2 visited India in March, 2012 and stayed at the house of the petitioner for 2/3 days and thereafter, she went to her paternal house. There was no occasion for the petitioner and his family members to torture the respondent No.2, as alleged in the FIR.
5.
The only allegation levelled against the husband is that he got released Rs.2,00,000/-, which was deposited in the joint account of respondent No.2-wife. These allegations are false. The said amount was deposited by the petitioner himself and it was used jointly by the petitioner and respondent No.2 for shopping etc. The allegations that the petitioner used to beat respondent No.2 everyday are also false as she went back to Canada immediately after her marriage in April 2010.
6.
Learned Senior counsel for the petitioner further contends that all the allegations levelled against the petitioner and his family members are prior to April 2010, which have been levelled after a period of 06 years of marriage, as such, the complaint is barred by limitation. As such, the FIR and subsequent proceedings are liable to be quashed on the ground of limitation. 6.1 Learned Senior counsel further contends that the allegations regarding giving 25 tolas of gold to the family of the petitioners and 10 tolas of gold to the petitioner are false as no bills etc. have been placed on record. 6.2.
It is further contended on behalf of the petitioner that after the marriage of the petitioner with respondent No.2 has been dissolved by way of decree of divorce dated 03.01.2017 passed by Court of Queen's Bench of Alberta (Annexure P-2) and thereafter, respondent No.2 has got re-married on 06.02.2017, as per the Marriage Certificate (Annexure P-3). At the time of passing the decree of divorce, all the disputes were settled, as such, continuing with the prosecution on the basis of such an FIR is an abuse of the process of law. CONTENTIONS ON BEHALF OF PETITIONER NIRMAL SINGH (FATHERIN-LAW) 7.
Mr. R.S. Bains, learned Senior counsel also appearing on behalf of the petitioner-Nirmal Singh (hereinafter referred as "the father-in-law") contends that petitioner is the father-in-law of respondent No.2/complainant, who is living in India. He has no role to play in the matrimonial life of his son and respondent No.2 as they were living in Canada. Both had gone to Canada immediately after their marriage and they are living separately since 08.04.2016. Their marriage has since been dissolved with mutual agreement. No dispute is left between the parties. However, petitioner-Nirmal Singh, who is presently in India, is being forced with the prosecution for no fault on his part. Reliance has been placed on "Amanjot
Singh vs. State of Punjab", 2018 (4) RCR (Criminal) 212, decided on 08.08.2018; "Gurdial Singh vs. State of Punjab and Another", 2016 (2) AICLR 565, decided on 31.07.2015 and "Kuldip Singh Jaswal and Others vs. Jaspal Singh and Others", bearing No. CRM-M-12551-2012, decided on 03.09.2015. CONTENTIONS ON BEHALF OF THE STATE 8.
Mr. Jaspal Singh Guru, AAG, Punjab, learned State counsel contends that a written complaint dated 29.12.2015 was given by respondent No.2 to the Commissioner of Police, Amritsar with the allegations of physical and mental harassment and cruelty to respondent No.2 by the petitioner-husband and his family members. It was further alleged in the complaint that the in-laws of respondent No.2 have misappropriated the dowry articles including 35 tolas of gold, which was given at the time of marriage. A sum of Rs.3,00,000/- was given as shagun on demand and a sum of Rs.2,00,000/- has already been withdrawn by the petitioner from the joint bank account of the petitioner and respondent No.2. It is further alleged in the complaint that the petitioner has performed marriage with respondent No.
2 only to get the status of "Permanent Resident" of Canada. 8.1 Learned State counsel further contends that before the registration of the FIR, an inquiry was conducted by Additional Deputy Commissioner of Police (Crime), Amritsar, who gave the opinion that petitioners have demanded dowry articles from respondent No.2 and they have misappropriated the Istridhan of respondent No.2. After conducting the detailed inquiry, the FIR was registered against the petitioner-Lakhwinder Singh and petitioner-Nirmal Singh under Sections 406, 498-A, 420 IPC. Petitioner-Nirmal Singh has joined the investigation on 02.03.2016. At that time, petitioner-Lakhwinder Singh was living in Canada, as such, the final report under Section 173 Cr.P.C. was presented against Nirmal Singh (father-in-law of respondent No.
supplementary challan shall be presented after the arrest of petitioner-Lakhwinder Singh.
CONTENTIONS ON BEHALF OF THE COMPLAINANT IN LAKHWINDER SINGH'S MATTER 9.
Mr. Kanwaljit Singh, learned Senior counsel appearing for respondent No.2/complainant in "Lakhwinder Singh vs. State of Punjab and Another" (CRMM-23154-2019) contends that the FIR was registered at the instance of respondent No.2 when she was present in India. The cause of action arose in India and the allegations in the FIR will be thrashed during the trial. Though the marriage of petitioner-Lakhwinder Singh and respondent No.
2 has been dissolved by a decree of divorce, but the same has no impact on the prosecution initiated on the basis of the present FIR, since the decree of divorce has been passed subsequent to the registration of the FIR and there is no reference about settlement of the dispute qua the allegations in the FIR, as such, merely on the ground that divorce has been granted subsequent to filing of the FIR, the proceedings cannot be quashed. It is contended that petitioner-Lakhwinder Singh is residing in India and refusal to return the Istridhan was also in India, as such, the cause of action took place in India. Reliance was placed upon the decision in "Jasbir Bajaj and Another vs. State of Haryana and Another"; 2020 (4) R.C.R. (Criminal) 168. 9.
" ** * #&3# 6
; #( ** " #"
"' ! 5 (< & !
'& " /3"= >/& '? #
6+ , +% &, /3" *" #
!"
# #"
$
6 CONTENTIONS ON BEHALF OF THE COMPLAINANT IN NIRMAL SINGH'S MATTER 10.
Mr. Kuljit Singh Bal, Advocate, learned counsel for respondent No.2/ complainant in Nirmal Singh's matter, while referring to the reply filed on behalf of respondent No.2, contends that the FIR was lodged at the instance of respondent No.2 when she visited India on 23.12.2015. She has given details of the demands raised by the petitioner and his family members, the physical assault and violence committed by the petitioner and his co-accused as well as misappropriation of the Istridhan. There is prima facie evidence regarding misappropriation of the Istridhan by the petitioner-Nirmal Singh as complete recovery of Istridhan was not effected. The respondent No.2 did not make any settlement regarding the present FIR at the time of passing the decree of divorce, as such, the proceedings in the present FIR cannot be quashed on the ground that divorce has taken place subsequent to the registration of the FIR.
DISCUSSION 11.
I have considered the aforesaid contentions.
12.
It is undisputed that the marriage between petitioner-Lakhwinder Singh and respondent No.2/complainant was solemnized in the year 2010 at Amritsar. It is alleged by respondent No.2 in the FIR that over 35 tolas gold ornaments were handed over to the petitioners as Istridhan. The complainant deposited a sum of Rs.2,00,000/- in the joint account of petitioner-husband (Lakhwinder Singh). Petitioner-Lakhwinder Singh used physical violence against the complainant in the presence of the mother of the complainant and at two other occasions. Petitioner-Nirmal Singh refused to return back the gold ornaments given to them when the complainant visited her matrimonial home on 23.12.2015. The
petitioners have cheated, maltreated and harassed the complainant and married her in a fraudulent manner just to procure the Permanent Residency status of Canada. 13.
The marriage of the petitioner with respondent No.2 having been solemnized on 02.02.2010 at Amritsar, is not disputed. The FIR has been registered on the basis of a complaint personally filed by respondent No.2, at the time when she was present in India, is also not disputed. 14.
As per the affidavit dated 07.02.2020, filed by Sh. Som Nath, PPS, Assistant Commissioner of Police, Amritsar, the investigation is complete and final report/challan under Section 173 CrP.C. has been presented against the petitioner Nirmal Singh under Section 406, 498-A, 420 IPC. Copies of the gold ornaments, produced during the course of investigation by the complainant/respondent No.2 with respect to the gold ornaments given to her in her marriage are annexed as Annexures R-1/T to R-4. It is further contended in the said affidavit that petitionerNirmal Singh was granted relief of anticipatory bail by the Court of Additional Sessions Judge, Amritsar and while joining investigation, the dowry articles consisting of one almirah, washing machine, gold ornaments consisting of earring of Harpinder Kaur/sister-in-law of complainant/respondent No.2 and gold kadha were produced by the petitioner-Nirmal Singh. Rest of the gold ornaments and dowry articles have not been returned by the accused. 14.1.
As per the affidavit filed on 18.12.2021 by Dr. Manpreet Shinhmar, PPS, Assistant Commissioner of Police, Amritsar, filed in Nirmal Singh's matter, it has been mentioned in Para No.5 that during the pendency of the anticipatory bail before the learned Sessions Judge, Amritsar, petitioner-Nirmal Singh has joined the investigation and returned the aforesaid articles and rest of the dowry articles and gold ornaments were not returned by the petitioner (Nirmal Singh) and the same have been misappropriated by the accused persons.
15.
The argument raised by the learned counsel for the petitioner that there is no documentary proof regarding purchase of the gold and other articles, as alleged by the complaianant-respondent No.2 is refuted since as per the final report presented under Section 173 of the Code (Annexure R-1/T), after the registration of the FIR, petitioner-Nirmal Singh joined the investigation on 12.02.2016. This fact is also mentioned that petitioner-Nirmal Singh again joined investigation on 02.03.2016 and dowry articles of the complainant, including gold ornaments i.e. earring weighing 3.69 gms and a kadha weighing 14.940 gms were produced by him during the questioning. Annexure R-2 is the sale receipt/bill of gold ornaments dated 29.11.2008. Annexure R-3 is the sale receipt/bill of watch dated 04.01.2010 and Annexure R-4 is the sale receipt/bill of gold ornaments dated 06.01.2010, which are part of the status report filed by the State in the petition filed by Nirmal Singh and these receipts pertain to the purchase of gold and diamond ornaments prior to the date of marriage.
16.
Petitioner-Nirmal Singh has himself relied upon copy of the bail order dated 25.03.2016 (Annexure P-2), passed by the Additional Sessions Judge, Amritsar, whereby, petitioner-Nirmal Singh was granted the concession of anticipatory bail. As per the statement of SI Dalbir Kaur, recorded by the Additional Sessions Judge, Amritsar, petitioner-Nirmal Singh got effected the recovery of some articles but SI Dalbir Kaur stated that still 33 tolas of gold articles are to be recovered from him and his custodial interrogation is required. The said statement is at page No.25 of the paper book, which is a part of Annexure P-2. 17.
The marriage of petitioner-Lakhwinder Singh and respondent No.2 was dissolved by a decree of divorce subsequent to registration of FIR. In this regard, petitioner-Nirmal Singh has relied upon copy of the affidavit of respondent No.2 (Annexure P-3). As per the said affidavit, though the respondent No.2 has
agreed for divorce with terms and conditions which were exchanged and finally settled between petitioner-Lakhwinder Singh and respondent No.2, but she has specifically stated that she is not willing to discontinue the proceedings in India. The relevant portion of her affidavit in Para Nos.17 to 19 reads as under:- "xxxxx 17.
On the same day, Mr. Singh responded to my lawyer by e-mail stating that he needed some time to review the documents and stating that he had some issues with regard to proceedings in India that I had commenced when I was assaulted by Mr. Singh's family in December 2015 and saying he wanted me to return 2 gold rings, a diamond ring and one neck chain that he said I had taken from him. A true copy of that email is attached to this Affidavit as Exhibit "L". 18.
Also on the same day, my lawyer responded to Mr. Singh that she would discuss his demands with me, but that those were not part of the agreement that he had already committed to through his previous lawyer.
19.
I am not willing to discontinue the proceedings in India as I have been advised by my lawyer in India that those proceedings are not connected to these proceedings. In addition, I am not willing to return the jewelry which were provided to me as gifts. The gifts I was required to provide to Mr. Singh as well as the gifts provided to me at the time of our marriage were taken into consideration when the agreement was reached with Mr. Singh's previous lawyer.
xxxxxx"
18.
There is no reference in the affidavit of complainant/respondent No.2 (Annexure P-3), that the Istridhan entrusted to the petitioners has been returned to her or that she has settled the matter even qua the allegations contained in the present FIR. Dissolution of the marriage subsequent to the registration of the FIR would not, per se, absolve the petitioners from criminal prosecution initiated prior to that on the ground of cruelty and misappropriation of dowry articles.
19.
The Hon'ble Apex Court in "State of Haryana and others vs. Ch. Bhajan Lal and Others"; 1992 AIR SC 604, laid down the broader guidelines and principles to exercise the extraordinary powers under Article 226 of the Constitution of India or inherent powers under Section 482 of the Code for quashing of the proceedings in criminal cases. The said principles read as under:- "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
20.
I have considered the question of limitation raised by learned Senior counsel for the petitioner. In the FIR, there were allegations of cruelty even at the point of time when the present FIR was lodged. The respondent No.2/ complainant was in India and she has raised specific allegations. Merely the fact that the petitioner remained silent for a long time after the first incident of cruelty, cannot be made a ground for quashing of the FIR. The Hon'ble Apex Court in
% % (supra) has considered the applicability of Section 468 of the Code of Criminal Procedure, 1973, that is bar to take cognizance after lapse of period of limitation, to the complaints made by the victims of the matrimonial offences and held that Court can invoke Section 473 Cr.P.C. which provides for extension of period of limitation in certain cases and can take cognizance of an offence after expiry of the period of limitation. It was further observed that in cases involving matrimonial offences, the Courts should not adopt a narrow and pedantic approach and should, in the interest of justice, liberally exercise power for extending the period of limitation. This Court in Shiv Dayal Arora's matter (supra) while dealing with the question of laches and delay observed that offence under Section 406 IPC is a continuing offence. So long the accused do not return the dowry articles, they keep on committing an offence of criminal breach of trust. Relevant Para no.13 reads as under:-
13. As regards the objection of the petitioners regarding laches/delay in the filing of the complaint, it may be noticed that the offence under Section 406 Indian Penal Code is a continuing offence. So long as the accused do not return the dowry articles, they keep on committing the offence of criminal breach of trust. In this regard I rely upon the following observations made
by Hon'ble Division Bench in Balram Singh V. Sukhwant Kaur and another, 1991(3) RCR (Criminal) 404 (P&H) :- "We find an element of continuance in the offence of criminal misappropriation in view of the extended definition of 'stolen property'. The offence continues until the property which has been criminally misappropriated is restored to the true owner. We further find that the case of criminal misappropriation comes very close to one of the illustrations in Best's case (supra) cited in Deokatan Nenshi's case (supra) in which it was held that the offence of withholding the money was a continuing offence, the basis of the decision being that every day that the money is wilfully withheld, the offence was committed.
In so far as precedents are concerned, therefore, we find that there is no decision directly on the point of a Division Bench either of this Court or of any other High Court. The Single Bench decisions in which a contrary view has been taken have been explained and we, therefore, find that the question as to the nature of the offence under Section 406 of the Indian Penal Code - whether it is continuing or a non-continuing offence - has not been gone into and for the foregoing reasons, we hold that the offence under Section 406 of the Indian Penal Code is a continuing offence."
21.
After applying the broader principles laid down in the aforesaid decision to the facts of the present case, I am of the considered opinion that there is prima facie evidence against the petitioner. The investigation is complete. As per the final report presented under Section 173 of the Code (Annexure R-1/T) in Nirmal Singh's matter reveals that before the registration of the FIR, detailed inquiry was conducted and it was concluded that Lakhwinder Singh-petitioner was able to get Citizenship of Canada and after going to Canada, he sent a Legal Notice to respondent No.2 for seeking divorce.
The decisions relied upon by the learned counsel for the petitioner are having different facts, as such, the ratio is not applicable to the facts of the present
case. In the case of Amanjot Singh (supra), the husband was an NRI already living in Canada, whereas, the complainant was the daughter of a retired DGP. The complainant/wife, within 06 months of marriage, initiated divorce proceedings i.e. just a month after the FIR was lodged, got ex parte decree of divorce immediately and got re-married and went to Australia and became a permanent resident. 22.1 In Gurdial Singh's matter (supra), the FIR was lodged by the maternal uncle (mama) of the wife. The wife was residing in Canada and after some time, the petitioner-husband also went to Canada. The prosecution was being pursued at the instance of the maternal uncle of the wife. 22.
2 In Kuldip Singh Jaswal's matter (supra), a private complaint was filed before the Judicial Magistrate by the father of the wife against as many as 11 persons by giving incorrect and only Indian address of the petitioners, despite knowing well that the petitioners were residing in Canada. Both the husband and wife were residing in Canada. The complainant concealed material facts from the Judicial Magistrate that the wife of the petitioner filed a detailed affidavit in Supreme Court of British Columbia. It was also concealed that all the disputes between the husband and wife were resolved and certificate of divorce, maintenance for the child and other claims of the wife were granted to the wife in accordance with the law of the said country.
The litigation in the aforesaid decisions was filed by the proxy, whereas, in the present case, the FIR has been registered at the instance of respondent No.2 herself. 23.
In view of the aforesaid facts and circumstances of the present case, there is nothing on record to suggest that no prima facie case is made out on the allegations made in the First Information Report. There are allegations and counterallegations which require adjudication during trial. The case does not fall within the parameters of the decision by the Hon'ble Apex Court in Bhajan Lal's case (supra).
24.
Considering the totality of the facts and circumstances on record and in view of the ratio of decision in Bhajan Lal's case (supra), no case is made out for quashing of the FIR in exercise of the jurisdiction under Section 482 of the Code. Consequently, both the petitions stand dismissed. 25.
All the pending miscellaneous applications, if any, shall stand disposed of.
0 ?
@1 () #.), & '() * +), & - * +),