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the Dowry Prohibition Act, 1961
The Indian Penal Code
The Code Of Criminal Procedure, 1973
Section 3 in the Dowry Prohibition Act, 1961
Section 4 in the Dowry Prohibition Act, 1961

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Punjab-Haryana High Court
Baljeet Kaur @ Kulvinder Kaur vs State Of Haryana on 26 September, 1997
Equivalent citations: I (1998) DMC 498
Author: K Kumaran
Bench: K Kumaran

JUDGMENT K.S. Kumaran, J.

1. Petitioner Nos. 1 Baljit Kaur, 2. Mohinder Kaur, and 3. Sukhdev Singh have approached this Court under Section 482, Cr.P.C, for quashing the FIR No. 200 dated 28.7.1996 under Sections 406/494/495/496/498-A, IPC and under Sections 3 and 4 of the Dowry Prohibition Act, Police Station Garhi, and all other consequential proceedings.

2. 2nd respondent-Beant Singh lodged a complaint against Baljinder Singh, Baljeet Kaur, Mohinder Kaur (son, daughter and wife respectively of Sukhdev Singh, the third petitioner herein), Sukhdev Singh and the alleged second wife of Baljinder Singh, whose name the complainant does not know, which formed the basis for the above said FIR. The material allegations found in the complaint are as follows:

"The complainant's daughter Amarjit Kaur @ Rani was married to Baljinder Singh son, of Sukhdev Singh (3rd petitioner herein) on 4.5.1993. At the time of Sagai and marriage certain articles (detailed in the complaint) were entrusted to the above said persons as dowry. After marriage also the complainant gave certain items. Some time after the marriage, the above said accused started maltreating the complainant's daughter for more dowry in the month of December/January, 1993. The accused demanded a Maruti car, colour T.V. and fridge. They beat Amarjit Kaur and turned her out of the house. The complainant went to the accused with certain mediators and requested them not to harass his daughter but the accused were adamant in their demand and warned him that if their demands are not fulfilled, they will not allow Amarjit Kaur into their house. The complainant promised that he will make efforts to fulfil their demands and left Amarjit Kaur in their house. But, after some time she was again beaten, harassed and turned out of the house. Again the complainant went to the house of the accused with mediators, but they refused to keep Amarjit Kaur in their house till their demands are met and also threatened that they will get Baljinder Singh married with some body else. A day prior to the complaint, the complainant came to know that Baljinder Singh had married for the second time in Consultation with the other accused without being divorced from Amarjit Kaur. The complainant and his daughter requested them to return the dowry articles but they refused. The accused have committed offences under Sections 494, 495, 496, 498-A and 406, IPC and Sections 3, 4 and 5 of Dowry Prohibition Act, 1961."

3. The petitioners have alleged in this petition that the complaint is false. According to the petitioners, the 1st petitioner-Baljeet Kaur who is the sister of Baljinder Singh, was married in 1991 and is residing since then at Village Kuttu, Tehsil Bamala of Punjab. According to the petitioners, she is a handicapped lady who walks with sticks and cannot travel in the buses etc. with comfort. The petitioners also claim that while the third petitioner is living with his wife Mohinder Kaur (second petitioner) at Village Dhabi Tek Singh since a long time, Baljinder Singh, who is working in the Army since 1991, remained posted in places like Puna, Nasirabad etc. The petitioners claim that they have had no chance of interfering with the personal affairs of Baljinder Singh.

4. According to the petitioners, Amarjit Kaur left the matrimonial home on 5.5.1993 alongwith her brother due to the dispute between the husband and wife on the first night (sic) Amarjit Kaur as she is not having all the organs of a lady and as she was not interested in the marriage. The petitioners claim that prosecution under Sections 3 and 4 of the Dowry Prohibition Act can be only with the sanction of the District Magistrate and that too within the period of one year from" the date of marriage, but no sanction from the District Magistrate was obtained, and that complaint is also barred by time.

5. The petitioners have also alleged that the complaint is not specific as to which of the articles were entrusted to which person, that no specific allegation is made against any accused from whom the demand of return of dowry articles was made, that the allegations regarding the harassment are without details as to the' date, time, place and manner of harassment, that the allegation that the complainant came to know on the previous day that Baljinder Singh performed second marriage in consultation with the accused does not make out a case under Sections 494, 495, 496, IPC against the petitioners since these allegations are also vague and that these allegations can be levelled either by the person with whom the second marriage is contracted or any of her close relations.

6. The Sub-Inspector/S.H.0. of Police Station, Garhi filed reply on behalf of State" of Haryana (the 1st respondent herein) stating that on the written application of Beant Singh a case .under Sections 494, 495, 496, 498-A, 406, IPC and under Sections 3 and 4 of the Dowry Prohibition Act was registered that, since, on investigation, sufficient evidence was available, the accused were charge-sheeted under Sections 494, 495, 496, 406 and 498-A, IPC on 30.8.1996, and that the case is fixed for trial on 9.12.1996. He has further alleged that the petitioners have not been charge-sheeted under Sections 3 and 4 of the Dowry Prohibition Act and as such there was no need to obtain the sanction of the District Magistrate.

7. The second respondent/complainant has filed reply urging that High Court's power under Section 482, Cr.P.C. should be used in rare cases and very sparingly and that High Court should not embark upon the enquiry on the charges levelled against the accused. The second respondent has alleged that Baljinder Singh has contracted second marriage with Sukhwinder Kaur. He has reiterated his allegations in the complaint and has also (sic) the other allegations in this petition. According to the second respondent, there are specific allegations regarding cruelty regarding the demand for and entrustment of dowry, and also the mis-appropriation. He has also alleged that the complaint under Sections 494, 495, 496, IPC is not barred.

8. I have heard the learned Counsels for both the sides and perused the records of this petition. The case of the complainant/second respondent is that his daughter Amarjit Kaur is married to Baljinder Singh, son of petitioner Nos. 2 and 3 and brother of 1st petitioner herein respectively, that all of them ill-treated her for not bringing sufficient dowry and not meeting their demand for more dowry, turned her out from the house, and that he and his daughter requested for return of the dowry articles, which did not bear fruit. The complainant has alleged that Baljinder Singh has also contracted a second marriage with the connivance of the other accused, though he (the complainant) did not know the name of second wife of Baljinder Singh. On the basis of this complaint, the FIR in question was registered.

9. The petitioners' claim is that they did not and do not interfere with the personal affairs of Baljinder Singh, and that the allegations in the petition are also vague. According to them, Baljinder Singh remained posted at far-off places like Puna and Nasirabad since 1991, whereas the 1st petitioner who was married in 1991 has been residing at Village Kuttu, Tehsil Bamala, while the petitioner Nos. 2 and 3 have been living at Village Dhabi Tek Singh for a very long time. Petitioners also contend that the allegations regarding the alleged cruelty/the alleged entrustment arid alleged demand for the return of dowry articles are not specific. They also contend that the complaint regarding the offences under Sections 494, 495 and 496, IPC could be lodged either by the alleged second wife or her near relations only. So far as the offences under Sections 3 and 4 of the Dowry Prohibition Act are concerned, the petitioners contend that no Court can take cognizance of such offences unless sanction for the prosecution under these sections had been obtained from the District Magistrate within one year of the marriage. Therefore, petitioners seek quashing of FIR and consequential proceedings.

10. The second respondent/complainant on the other hand contends that a reading of the complaint disclose prima facie case against all the accused-petitioners for the offences mentioned therein, and that this Court should not embark upon an enquiry into the allegation to find out whether they are true or not.

11. The first respondent i.e. the State of Haryana contends that the charge sheet has been filed against the petitioners under Sections 494, 495, 496, 406 and 498-A, IPC on 30.8.1996 itself and that the case is also pending trial before the Judicial Magistrate, 1st Class, Narwana. The State also contends that the investigation reveals that there is evidence against the petitioners for the offences in respect of which charge-sheet has been filed. According to the State also, since no charge-sheet under Sections 3 and 4 of the Dowry Prohibition Act has been filed, mere is no question of getting the sanction of the District Magistrate for these offences. Therefore, the learned Counsel for the State contends that this Court cannot now quash the FIR and the consequential proceedings since the charge-sheet has been filed on 30.8.1996 itself. In support of this contention, the learned Counsel for the 1st respondent also relied upon a decision of Hon'ble Supreme Court in State of Bihar v. P.P. Sharma, AIR 1991 SC 1260, which certainly supports the contention of the 1st respondent, wherein the Hon'ble Supreme Court held as follows :

"... We are of the considered view that at a stage when the police report under Section 173, Cr.P.C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction."

12. The learned Counsel for the petitioners on the other hand contends that if there are compelling reasons, the High Court can exercise the powers under Section 482, Cr.P.C. In this connection, he relied upon a decision of Hon'ble Supreme Court in State of Maharashtra v. Ishwar Piraji Kalpatri, 1996 (2) RCR 844. He also relied upon a decision of the Delhi High Court in Jitendra Mohan Gupta v. State, 1992 (2) RCR 580 wherein it was held that where extraordinary situation exists, inherent powers of this Court under Section 482, Cr.P.C. can be exercised or when the bare reading of the FIR or complaint on its face-value does not constitute any offence against the petitioner.

13. But, the Hon'ble Supreme Court in India in Minakshi Bala v. Sudhir Kumar, 1994 (3) RCR 123 held that once the charges have been framed, the exercise of the powers under Section 482, Cr.P.C. to quash the FIR and subsequent proceedings is not justified except in rare cases where forensic exigencies and formidable compulsions justify such a course.

14. Therefore, it is clear in rare cases where there arc compelling circumstances or exigencies which are formidable, this Court can exercise its jurisdiction under Section 482, Cr.P.C. to quash the proceedings before the Trial Court. Similarly because the petitioners have alleged that a reading of FIR does not disclose any ground for proceeding against the petitioners, this Court cannot exercise its powers to quash the proceedings, when the charge-sheet has already been filed and the case is fixed for trial. From the records, I find that the present petition is dated 26.8.1996 and came up before this Court for orders on 3.9.1996. According to the State, the charge-sheet has already been filed on 30.8.1996 and the case is also fixed for trial. Therefore, in such a situation where the case is fixed for trial, this Court cannot, except under compelling circumstances, exercise its power under Section 482, Cr.P.C. to quash the proceedings.

15. In this background I will now examine the question whether this Court can now exercise its powers under Section 482, Cr.P.C. So far as the registration of the FIR for the offences under Sections 3 and 4 of the Dowry Prohibition Act, is concerned, the prosecution itself did not file the charge-sheet against the petitioners under these sections and, therefore, there is no necessity to quash the FIR for want of sanction.

16. With regard to offences under Sections 406 and 498-A, IPC, there is no compelling reason for quashing the FIR with regard to these offences. Except stating that the reading of FIR does not disclose any grounds for proceeding against the petitioners under these sections and that the allegations in the FIR are not specific but are vague, there is no compelling circumstance or forensic exigency to quash the proceedings with regard to offences under Sections 406 and 498-A, IPC.

17. So far as offences under Sections 494, 495, 496 are concerned, the petitioners contend that the complainant had not even mentioned the name of the alleged second wife, and the date, time and place of second marriage as well, that there is also no allegation as to the manner in which the alleged second marriage was performed, and that except stating that the second marriage was performed in consultation with the present petitioners, their complicity in the alleged offences has not been mentioned. The learned Counsel for the petitioners also contends that it is only the alleged second wife who could be aggrieved by the alleged second marriage and so, only either the alleged second wife or her relations can file the complaint for the offences under Sections 494, 495, 496, IPC and not the first wife or her relations. The learned Counsel for the petitioners, therefore, contends that the complaint, insofar as the offences under Sections 494, 495 and 496, IPC are concerned, is not maintainable.

18. In view of the fact that the charge-sheet has already been filed and the case is fixed for trial, this Court will not ordinarily go into the question whether the allegations in the complaint with regard to the alleged offences under Sections 494, 495 and 496, IPC disclose the commission of such offences or not. Therefore, I desist from exercising the power conferred on this Court to quash the proceedings under Section 482, Cr.P.C., on the basis, whether the complaint discloses a case or not.

19. But the other objection taken by the petitioners is a legal and vital objection which goes to the very maintainability of the FIR and consequently the further proceedings. According to the petitioners, a complaint with regard to the offences under Sections 494, 495 and 496, IPC can be lodged only by the alleged second wife or her relations as mentioned in Section 198 of the Cr.P.C. and not by others and, therefore, no complaint can be lodged by the father of the first wife (in this case the only wife according to the petitioners).

20. Chapter XX of the Indian Penal Code deals with the offences relating to marriage. Sections 494 to 496 are also found in the said chapter. Section 494 seeks to punish a husband or wife who marries during the life-time of the other spouse where the second marriage is void by reason of its taking place during the life-time of the husband or the wife as the case may be. Section 495, IPC seeks to punish a person who contracts subsequent marriage after having concealed the former marriage from the person with whom such subsequent marriage is contracted. Section 496, IPC seeks to punish a person who dishonestly or fraudulently goes through the ceremony of a marriage knowing fully that he is not thereby lawfully married.

21. Section 198(1) of the Cr.P.C. provides that no Court shall take cognizance of an offence punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved by the offence. Further, the proviso (c) to Section 198(1) read as follows :

"(c) Where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or with the leave of the Court, by any other person related to her by blood, marriage or adoption."

So it is evident that with regard to the offences made punishable under Chapter XX of the IPC, only on a complaint by the aggrieved person, the Court can take cognizance of the same and not on the FIR presented by the police. Proviso (c) to Section 198(1) also shows that where the person aggrieved by the offences committed under Sections 494 and 495 happens to be the wife, the complaint shall be made by such wife or her other relations enumerated in the said proviso. So in is only the second wife who could be aggrieved by such a marriage and she and her other relations enumerated in the proviso (c) to Section 198(1), Cr.P.C. only could lodge a complaint in the Court. Therefore, in view of the bar contained in Section 198 that no Court shall take cognizance of the offences punishable under Chapter XX, IPC, except upon a complaint by the person aggrieved by the offence, the Court cannot take cognizance of the offences under Sections 494 to 496, IPC on the basis of the FIR presented by the police. The Hon'ble Supreme Court in State of Haryana v. Ch. Bhajan Lal, 1991 (1) RCR 383, after considering the provisions of the Criminal Procedure Code and the principles of law enunciated by the Supreme Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 of the Criminal Procedure Code, has given by way of illustration certain categories of cases wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice. One of the categories of cases, ' here this Court could, in exercise of its jurisdiction under Section 482, Cr.P.C., interfere, is where there is an express legal bar engrafted in any provision of the Code or the concerned Act.

22. Therefore, even though the charge-sheet has been filed and the case is fixed for trial, in view of the legal bar imposed by Section 198(1), Cr.P.C., the Trial Court cannot be permitted to proceed with the case with reference to these offences under Sections 494, 495 and 496, IPC as ultimately the Court will not be able to convict the petitioner herein even if on facts the case is proved by the prosecution. Therefore, the FIR and the consequential proceedings, insofar as they relate to the offences under Sections 494 to 496, IPC as against the present petitioners have to be quashed.

23. Accordingly, this petition is allowed in part. The FIR impugned in this petition and the consequential proceedings insofar as they relate to the alleged offences under Section 494, 495 and 496,TPC, as against the petitioners herein are quashed. In other respects, the petition is dismissed.