Hon"ble High Court Held That:
it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(Crl.) No. 957/2003
Reserved on: 22.08.2007
12.09.2007
Date of Decision: 12.09.2007
Kanchan Gulati and Anr.
.......Petitioners
Through : Mr. S.S.Gandhi,
Sr.Advocate
with Mr. Vishal Gosain, Advocate
versus
The State and Ors. .........
Respondents
Through : Ms. Mukta Gupta, Advocate for
State
Mr. Rahul Goyal, Advocate for R-4
CORAM:
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2.To be referred to the Reporter or not? Yes.
3.Whether the judgment should be reported Yes.
in the Digest?
JUDGMENT
This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant). 2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs.2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs.1,46,000/- and an amount of Rs.4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.
3. On 06.5.1997 her husband filed a divorce petition in the Circuit
Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the
decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.
4. Quashing of this FIR has been prayed for by the petitioners. It
is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.
5. The complainant has not disputed about her contesting divorce
petition and filing an appeal before the US Court. The orders of the US Court
have been placed on record. The decree passed by the USA Court has not been
challenged. The order of the US Court shows that the complainant had taken up
all grounds like withholding her property, dowry etc. by her husband. The US
Court directed the parties to exchange articles and passed following order:
A. That the bonds of matrimony now existing between the petitioner,
ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.
B. That the marital home located at 1258 S. Pleasant Hill Gate,
Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.
C. That each party shall receive his or her own vehicles and each shall
execute any documents necessary to transfer the title of the vehicle to the other.
D. That each party shall receive his or her own personal property
currently in his or her possession. That the Husband shall receive the
following personal property as his sole property which shall be delivered to him
by the Wife on March 21, 1999:
Sharp TV
Bed (with frame, and box spring)
Sharp Microwave
Small fridge
Cooking Utensils and accessories
Spices
Square side table (brown, wood)
3 Chairs ( wood frame and brown leather seat)
Dining Table and Chairs
2 Chairs (steel frame, leather seat)
Glass top tables
Comforter from aunt
Utensils, spices and other stuff from my relatives.
E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.
F. That the Husband shall receive his stock options as his sole property.
G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.
H. That each party is barred from any maintenance from the other.
I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife's interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.
J. That the parties shall exchange their dowry items within 60 days of the
entry of this Judgment for Dissolution of marriage. The Wife shall give to the
Husband all the items on the attached list:
One gold chain with pendant
One gold ?krishna murti? pendant with diamonds.
One diamond ring
one pair of big earrings (mina wale)
2 pair of earrings
one gold ring ( given on Kwar-dhoti)
one pair of silver paizeb
one long mangal-sutra (mina wala)
Bangles
One (1) Golden Challa (sister-in-law)
The Husband shall give to the Wife all items on the attached list:
One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings)
One Sitarami Necklace (Necklace only)
One Gold Chain given to me
One Gold and Diamond engagement ring
One Gold wedding band
One Gold coin (guenea)
One Double gold chain given to my mother
One Gold chain given to my sister-in-law
Two gold rings (1 for my father, 1 for my brother)
Two silver trays (rectangular)
One silver tray (circular)
One silver small bowl (katori)
One wedding saree
One luggage carrier (foldable cart)
Check book for bank account in Anuja's name
6. The appellate order passed by the appeal court would show that
appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfilling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.
7. Quashing of FIR in exercise of writ jurisdiction is a discretion
of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.
8. I consider that it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
SHIV NARAYAN DHINGRA,J.
September 12, 2007
Another Judgment:Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2122 OF 2009
(Arising out of SLP(Crl.) No. 5910/2006)
Pashaura Singh …Appellant
Versus
State of Punjab & Anr. …Respondents
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. In this appeal by special leave, the appellant has
challenged the order dated May 24, 2006 passed by the High
Court of Punjab and Haryana. By the said order, the petition
filed by the appellant under Section 482 of Code of Criminal
Procedure for quashing F.I.R. No. 9 dated January 21, 2002
registered at Police Station Sehna under Sections 498-A, 494,
506/34, IPC has been dismissed.
3. Kamaljeet Kaur is a landed immigrant of Canada.
On May 7, 1997, she married Pashaura Singh Sidhu –
appellant – at village Ghall Kalan, District Moga, Punjab. She
left for Canada on May 15, 1997. She sponsored her husband
and, accordingly, Pashaura Singh went to Canada in 1998.
They stayed together for few months and then relations
between them became strained. Kamaljeet, thereafter, started
living separately in Ontario. Pashaura Singh applied for
divorce and dissolution of marriage before the Supreme Court
of British Columbia and a divorce judgment was passed in his
favour and their marriage stood dissolved with effect from
February 8, 2001. After the dissolution of marriage, Pashaura
Singh came to India and remarried on January 2, 2002.
Pashaura Singh went back to Canada with his newly wedded
wife and both of them have been residing there.
4. On January 21, 2002, Kamaljeet’s brother Balwant
Singh lodged a first information report being F.I.R. No. 9 at
Police Station Sehna against Pashaura Singh, Hakam Singh
(father of Pashaura Singh), Randhir Singh (brother of Pashaura
Singh), Charanjit Kaur (wife of Randhir Singh) and Harbans
Kaur (mother of Pashaura Singh) alleging therein that on May
7, 1997 he performed his sister Kamaljeet Kaur’s marriage with
2
Pashaura Singh; that at the time of marriage, according to his
status, he gave rupees four lacs in cash, gold jewelry, utensils,
almirah, fifty-one suits, five bags etc. but the accused started
harassing his sister Kamaljeet Kaur and threatened to kill her if
she did not bring car, electronic items etc. and that he has now
come to know that Pashaura Singh has entered into second
marriage in the first week of January, 2002. A case under
Sections 498-A, 494, 506/34, IPC was registered against the
accused persons and it appears that the police submitted
challan against them in the court of Judicial Magistrate First
Class, Barnala.
5. Randhir Singh, Charanjit Kaur (Rajinder Kaur),
Hakam Singh and Harbans Kaur filed a petition under Section
482 of the Code of Criminal Procedure for quashing the F.I.R.
No. 9 and criminal prosecution against them. Vide order dated
April 29, 2004, the High Court allowed the petition and quashed
F.I.R. No. 9 dated January 21, 2002 registered against them
and all subsequent proceedings.
6. Pashaura Singh by a separate petition under
Section 482 of the Code prayed for quashing F.I.R. No. 9/2002
3
and the subsequent criminal proceedings against him but, as
noticed above, the High Court by its order dated May 24, 2006
dismissed his petition. The High Court in its cryptic order, while
dismissing the petition, observed that Pashaura Singh has
married second time on January 2, 2002 while he was already
married with Kamaljeet Kaur and the aforesaid marriage has
not been dissolved.
7. Having heard the learned Counsel for the parties
and upon careful perusal of the materials placed before us, in
our judgment, the order of High Court cannot be sustained for
more than one reason. In the first place, the High Court gravely
erred in observing that Pashaura Singh married second time on
January 2, 2002 while he was already married with Kamaljeet
Kaur and the aforesaid marriage has not been dissolved. The
certificate of divorce dated February 26, 2001 issued by the
New Westminster Registry, Supreme Court of British Columbia
shows that the marriage of Pashaura Singh and Kamaljeet Kaur
stood dissolved on February 8, 2001. As a matter of fact, this
fact is noticed in the order dated April 29, 2004 whereby the
High Court quashed F.I.R. No. 9 and the subsequent criminal
4
proceedings against the family members of Pashaura Singh. In
the affidavit filed by Gurmail Singh, Deputy Superintendent of
Police in response to the petition filed by the appellant under
Section 482 before the High Court, it has been admitted that
during investigation on March 14, 2002 Hakam Singh had
produced photocopy of divorce certificate purporting to have
been issued by the Supreme Court of British Columbia. The
observation of the High Court, thus, that Pashaura Singh
married second time, although his marriage has not been
dissolved, is ex-facie contrary to record.
8. Section 494, IPC, inter-alia, requires the following
ingredients to be satisfied, namely, (i) the accused must have
contracted first marriage; (ii) he must have married again; (iii)
the first marriage must be subsisting and (iv) the spouse must
be living. Insofar as present case is concerned the appellant’s
marriage with Kamaljeet Kaur was not subsisting on January 2,
2002 when he is said to have married second time. Pertinently
before the High Court, along with reply, the complainant
Balwant Singh annexed copy of an affidavit filed by Kamaljeet
Kaur which states that she was not aware of the divorce
5
proceedings filed by her husband Pashaura Singh. However,
from this affidavit, it is apparent that her husband has obtained
a divorce judgment. There is nothing in the affidavit that divorce
judgment has been stayed or set aside. On the face of the
allegations made in the first information report, therefore,
ingredients of the offence under Section 494, IPC are not
satisfied.
9. Insofar as offence under Section 498-A is
concerned, the High Court in its earlier order dated April 29,
2004 in the petition filed by the family members, observed thus:
“I have perused the First Information Report
registered against the petitioners.
The only allegation against the petitioner is that they
started harassing Kamaljeet Kaur Gill for not bringing more
dowry. No demand of dowry has been made by the
petitioners, nor is there any specific entrustment, as alleged
in the First Information Report of dowry articles to the
petitioners. Parties have divorced each other, as per the
order of the Supreme Court of British Columbia (Annexure
P-1). Order is dated February 25, 2001. It is after this divorce
that Pishora Singh got married in India on January 2, 2002.”
10. Moreover, in the affidavit of Kamaljeet Kaur referred
to hereinabove, there is not a word about demand of dowry or
harassment on account of dowry by the appellant.
6
11. We have no hesitation in holding that the first
information report lodged by Balwant Singh is manifestly
attended with malafides and actuated with ulterior motive. The
prosecution of the appellant is not at all legitimate, rather it is
frivolous, vexatious, unwarranted and abuse of process. The
appellant has made out a case for quashing the first information
report and all subsequent proceedings pursuant thereto.
12. For the reasons indicated above, appeal is allowed
and order dated May 24, 2006 passed by the High court of
Punjab and Haryana is set aside. Resultantly, F.I.R. No. 9
dated January 21, 2002 registered at Police Station Sehna and
all subsequent proceedings pursuant thereto stand quashed
and set aside.
13. The pending applications stand disposed of.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha
it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(Crl.) No. 957/2003
Reserved on: 22.08.2007
12.09.2007
Date of Decision: 12.09.2007
Kanchan Gulati and Anr.
.......Petitioners
Through : Mr. S.S.Gandhi,
Sr.Advocate
with Mr. Vishal Gosain, Advocate
versus
The State and Ors. .........
Respondents
Through : Ms. Mukta Gupta, Advocate for
State
Mr. Rahul Goyal, Advocate for R-4
CORAM:
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2.To be referred to the Reporter or not? Yes.
3.Whether the judgment should be reported Yes.
in the Digest?
JUDGMENT
This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant). 2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs.2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs.1,46,000/- and an amount of Rs.4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.
3. On 06.5.1997 her husband filed a divorce petition in the Circuit
Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the
decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.
4. Quashing of this FIR has been prayed for by the petitioners. It
is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.
5. The complainant has not disputed about her contesting divorce
petition and filing an appeal before the US Court. The orders of the US Court
have been placed on record. The decree passed by the USA Court has not been
challenged. The order of the US Court shows that the complainant had taken up
all grounds like withholding her property, dowry etc. by her husband. The US
Court directed the parties to exchange articles and passed following order:
A. That the bonds of matrimony now existing between the petitioner,
ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.
B. That the marital home located at 1258 S. Pleasant Hill Gate,
Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.
C. That each party shall receive his or her own vehicles and each shall
execute any documents necessary to transfer the title of the vehicle to the other.
D. That each party shall receive his or her own personal property
currently in his or her possession. That the Husband shall receive the
following personal property as his sole property which shall be delivered to him
by the Wife on March 21, 1999:
Sharp TV
Bed (with frame, and box spring)
Sharp Microwave
Small fridge
Cooking Utensils and accessories
Spices
Square side table (brown, wood)
3 Chairs ( wood frame and brown leather seat)
Dining Table and Chairs
2 Chairs (steel frame, leather seat)
Glass top tables
Comforter from aunt
Utensils, spices and other stuff from my relatives.
E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.
F. That the Husband shall receive his stock options as his sole property.
G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.
H. That each party is barred from any maintenance from the other.
I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife's interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.
J. That the parties shall exchange their dowry items within 60 days of the
entry of this Judgment for Dissolution of marriage. The Wife shall give to the
Husband all the items on the attached list:
One gold chain with pendant
One gold ?krishna murti? pendant with diamonds.
One diamond ring
one pair of big earrings (mina wale)
2 pair of earrings
one gold ring ( given on Kwar-dhoti)
one pair of silver paizeb
one long mangal-sutra (mina wala)
Bangles
One (1) Golden Challa (sister-in-law)
The Husband shall give to the Wife all items on the attached list:
One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings)
One Sitarami Necklace (Necklace only)
One Gold Chain given to me
One Gold and Diamond engagement ring
One Gold wedding band
One Gold coin (guenea)
One Double gold chain given to my mother
One Gold chain given to my sister-in-law
Two gold rings (1 for my father, 1 for my brother)
Two silver trays (rectangular)
One silver tray (circular)
One silver small bowl (katori)
One wedding saree
One luggage carrier (foldable cart)
Check book for bank account in Anuja's name
6. The appellate order passed by the appeal court would show that
appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfilling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.
7. Quashing of FIR in exercise of writ jurisdiction is a discretion
of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.
8. I consider that it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
SHIV NARAYAN DHINGRA,J.
September 12, 2007
Another Judgment:Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2122 OF 2009
(Arising out of SLP(Crl.) No. 5910/2006)
Pashaura Singh …Appellant
Versus
State of Punjab & Anr. …Respondents
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. In this appeal by special leave, the appellant has
challenged the order dated May 24, 2006 passed by the High
Court of Punjab and Haryana. By the said order, the petition
filed by the appellant under Section 482 of Code of Criminal
Procedure for quashing F.I.R. No. 9 dated January 21, 2002
registered at Police Station Sehna under Sections 498-A, 494,
506/34, IPC has been dismissed.
3. Kamaljeet Kaur is a landed immigrant of Canada.
On May 7, 1997, she married Pashaura Singh Sidhu –
appellant – at village Ghall Kalan, District Moga, Punjab. She
left for Canada on May 15, 1997. She sponsored her husband
and, accordingly, Pashaura Singh went to Canada in 1998.
They stayed together for few months and then relations
between them became strained. Kamaljeet, thereafter, started
living separately in Ontario. Pashaura Singh applied for
divorce and dissolution of marriage before the Supreme Court
of British Columbia and a divorce judgment was passed in his
favour and their marriage stood dissolved with effect from
February 8, 2001. After the dissolution of marriage, Pashaura
Singh came to India and remarried on January 2, 2002.
Pashaura Singh went back to Canada with his newly wedded
wife and both of them have been residing there.
4. On January 21, 2002, Kamaljeet’s brother Balwant
Singh lodged a first information report being F.I.R. No. 9 at
Police Station Sehna against Pashaura Singh, Hakam Singh
(father of Pashaura Singh), Randhir Singh (brother of Pashaura
Singh), Charanjit Kaur (wife of Randhir Singh) and Harbans
Kaur (mother of Pashaura Singh) alleging therein that on May
7, 1997 he performed his sister Kamaljeet Kaur’s marriage with
2
Pashaura Singh; that at the time of marriage, according to his
status, he gave rupees four lacs in cash, gold jewelry, utensils,
almirah, fifty-one suits, five bags etc. but the accused started
harassing his sister Kamaljeet Kaur and threatened to kill her if
she did not bring car, electronic items etc. and that he has now
come to know that Pashaura Singh has entered into second
marriage in the first week of January, 2002. A case under
Sections 498-A, 494, 506/34, IPC was registered against the
accused persons and it appears that the police submitted
challan against them in the court of Judicial Magistrate First
Class, Barnala.
5. Randhir Singh, Charanjit Kaur (Rajinder Kaur),
Hakam Singh and Harbans Kaur filed a petition under Section
482 of the Code of Criminal Procedure for quashing the F.I.R.
No. 9 and criminal prosecution against them. Vide order dated
April 29, 2004, the High Court allowed the petition and quashed
F.I.R. No. 9 dated January 21, 2002 registered against them
and all subsequent proceedings.
6. Pashaura Singh by a separate petition under
Section 482 of the Code prayed for quashing F.I.R. No. 9/2002
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and the subsequent criminal proceedings against him but, as
noticed above, the High Court by its order dated May 24, 2006
dismissed his petition. The High Court in its cryptic order, while
dismissing the petition, observed that Pashaura Singh has
married second time on January 2, 2002 while he was already
married with Kamaljeet Kaur and the aforesaid marriage has
not been dissolved.
7. Having heard the learned Counsel for the parties
and upon careful perusal of the materials placed before us, in
our judgment, the order of High Court cannot be sustained for
more than one reason. In the first place, the High Court gravely
erred in observing that Pashaura Singh married second time on
January 2, 2002 while he was already married with Kamaljeet
Kaur and the aforesaid marriage has not been dissolved. The
certificate of divorce dated February 26, 2001 issued by the
New Westminster Registry, Supreme Court of British Columbia
shows that the marriage of Pashaura Singh and Kamaljeet Kaur
stood dissolved on February 8, 2001. As a matter of fact, this
fact is noticed in the order dated April 29, 2004 whereby the
High Court quashed F.I.R. No. 9 and the subsequent criminal
4
proceedings against the family members of Pashaura Singh. In
the affidavit filed by Gurmail Singh, Deputy Superintendent of
Police in response to the petition filed by the appellant under
Section 482 before the High Court, it has been admitted that
during investigation on March 14, 2002 Hakam Singh had
produced photocopy of divorce certificate purporting to have
been issued by the Supreme Court of British Columbia. The
observation of the High Court, thus, that Pashaura Singh
married second time, although his marriage has not been
dissolved, is ex-facie contrary to record.
8. Section 494, IPC, inter-alia, requires the following
ingredients to be satisfied, namely, (i) the accused must have
contracted first marriage; (ii) he must have married again; (iii)
the first marriage must be subsisting and (iv) the spouse must
be living. Insofar as present case is concerned the appellant’s
marriage with Kamaljeet Kaur was not subsisting on January 2,
2002 when he is said to have married second time. Pertinently
before the High Court, along with reply, the complainant
Balwant Singh annexed copy of an affidavit filed by Kamaljeet
Kaur which states that she was not aware of the divorce
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proceedings filed by her husband Pashaura Singh. However,
from this affidavit, it is apparent that her husband has obtained
a divorce judgment. There is nothing in the affidavit that divorce
judgment has been stayed or set aside. On the face of the
allegations made in the first information report, therefore,
ingredients of the offence under Section 494, IPC are not
satisfied.
9. Insofar as offence under Section 498-A is
concerned, the High Court in its earlier order dated April 29,
2004 in the petition filed by the family members, observed thus:
“I have perused the First Information Report
registered against the petitioners.
The only allegation against the petitioner is that they
started harassing Kamaljeet Kaur Gill for not bringing more
dowry. No demand of dowry has been made by the
petitioners, nor is there any specific entrustment, as alleged
in the First Information Report of dowry articles to the
petitioners. Parties have divorced each other, as per the
order of the Supreme Court of British Columbia (Annexure
P-1). Order is dated February 25, 2001. It is after this divorce
that Pishora Singh got married in India on January 2, 2002.”
10. Moreover, in the affidavit of Kamaljeet Kaur referred
to hereinabove, there is not a word about demand of dowry or
harassment on account of dowry by the appellant.
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11. We have no hesitation in holding that the first
information report lodged by Balwant Singh is manifestly
attended with malafides and actuated with ulterior motive. The
prosecution of the appellant is not at all legitimate, rather it is
frivolous, vexatious, unwarranted and abuse of process. The
appellant has made out a case for quashing the first information
report and all subsequent proceedings pursuant thereto.
12. For the reasons indicated above, appeal is allowed
and order dated May 24, 2006 passed by the High court of
Punjab and Haryana is set aside. Resultantly, F.I.R. No. 9
dated January 21, 2002 registered at Police Station Sehna and
all subsequent proceedings pursuant thereto stand quashed
and set aside.
13. The pending applications stand disposed of.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha
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