Kulbir Singh & Ors v. State & Anr

order.

Reliance placed on Shashi Ahuja(Dr.) v. Kulbhushan Malik & Ors. 152(2008) Delhi Law Times 196 is of no help to the petitioner in the given facts.

¶14The question regarding quashing of the complaint/summoning order was considered by the Supreme Court in M/s Medchi Chemicals & Pharma P. Ltd. vs. Biological E. Ltd. & Ors. (2000) 3 SCC 269 wherein after discussing its previous judgment on the subject, the Apex Court held as under: -

"Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High

Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observation in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi MANU/SC/0173/1976 : 1976CriLJ1533 lend support to the above statement of law.

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.

¶58The same principles would apply mutatis mutandis to a criminal complaint.

¶59We now come to the question as to whether or not a clear allegation of entrustment misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of decisions that for the purpose of exercising its power under Section 482 Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406, IPC are not made out, the High Court would be justified in quashing the proceedings".

¶15In the instant case, in view of the provisions of Section 6(3) of the Dowry Prohibition Act, 1961, the case law referred to above and the legal position emerging, I am of the considered opinion that the petition is liable to dismissed.

Dismissed.

PRATIBHA RANI, J

APRIL 19, 2012 dk/ks

* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 17th April, 2012 PRONOUNCED ON: 19th April, 2012 + CRL.M.C. No. 145/2012 & Crl.M.A.541/2012 KULBIR SINGH & ORS ……..Appellants Through: Mr.Kumar Gaurav, Advocate. Versus STATE & ANR. ………..Respondent Through:Ms.Rajdipa Behura, APP for the State. None for respondent No.2 CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI % 1. By the present petition, the Petitioners have challenged the order dated 24th November, 2011 passed by the learned Addl. Sessions Judge in Crl. Rev. P. No. 120/2011 titled as "Kulbir Singh & Ors. vs. Bani Singh & Anr". Vide the impugned order, the learned Addl. Session Judge confirmed the summoning order dated 19th October, 2010 passed by the learned Metropolitan Magistrate in Complaint Case No. 2896/2008 titled as "Bani Singh vs. Kulbir Singh & Ors". 2. The Petitioners have been summoned for committing the offence punishable under Section 406 IPC on the basis of complaint filed by the father of Poonam i.e. his deceased wife on their refusal to return the dowry articles. The impugned order has been challenged contending that as per the provisions of Hindu Succession Act after the death of the wife, the property of a Hindu female dying intestate shall devolve upon her sons, daughters and husband. Since in the instant case, the wife of the Petitioner died intestate and issueless, the property owned by her would devolve upon the husband. 3. The question arising for determination in the present petition is whether the articles of dowry given by the father to his daughter at the time of marriage, on the death of daughter devolved upon her husband or her parents. 4. Before dealing with the question arising in the proceedings, it is pertinent to mention here that before the commencement of arguments, this Court specifically asked the learned counsel for the Petitioner whether he is ready and willing to return the articles even as on date. The answer given by the learned counsel for the Petitioner was that the property has devolved on the husband and the same would not be returned to the parents of the deceased, the summoning order is bad in law in view of the clear provisions of Section 15(1) and 15(2) of the Hindu Succession Act. It has been further submitted that an amount of Rs.6 lacs was received as compensation by the Petitioner from the Motor Accident Claim Tribunal and he was gracious enough to give Rs.1 lakh to the father of the deceased, out of the compensation amount. As nothing is due and returnable to the father of the deceased, his petition be disposed of after considering the merits of this case, in view of provisions of Hindu Succession Act. 5. Learned counsel for the Petitioners has further submitted that learned Addl. Sessions Judge has committed the illegality in passing the impugned order while referring to Section 25 of the Hindu Succession Act which disqualifies a murderer from inheriting the property of the person murdered. It has been submitted that the analogy drawn is inaccurate as there is no charge of murder against the Petitioner till date. 6. Learned counsel for the Petitioners, in support of his contention, has relied upon the judgments of Azad Singh and Anr. vs. State of Haryana 2003 (3) SCC 13 , Mangat Ram vs. The State of Haryana & Anr., II(1988) DMC 566, Ajit Singh & Anr vs. State of Punjab in Crl.Rev.P.No.1308/1982 and Shashi Ahuja(Dr.) v. Kulbhushan Malik & Ors. 152(2008) Delhi Law Times 196. The contention of learned counsel for the petitioner that reference to Section 25 of Hindu Succession Act by learned A.S.J. is bad in law as no charge of murder was ever leveled against the petitioner, has substance and to that extent the reasoning given by learned A.S.J. is bad. 7. I have carefully considered the submissions made on behalf of the Petitioner. The facts of the case are not in dispute. The Petitioner got married to Poonam(deceased) on 2nd May, 2008. On 5th June, 2008 while the Petitioner No.1 was driving motorcycle No. UP 17-C-1363