Pashaura Singh Vs. State of Punjab & Anr.
EmailAppeal: Criminal Appeal No. 2122 of 2009
[Arising out of SLP (Crl.) No. 5910/2006]
[From the Judgement and Order dated 24.05.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 8526 of 2005]
[Arising out of SLP (Crl.) No. 5910/2006]
[From the Judgement and Order dated 24.05.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 8526 of 2005]
Petitioner: Pashaura Singh
Respondent: State of Punjab & Anr.
Apeal: Criminal Appeal No. 2122 of 2009
[Arising out of SLP (Crl.) No. 5910/2006]
[From the Judgement and Order dated 24.05.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 8526 of 2005]
[Arising out of SLP (Crl.) No. 5910/2006]
[From the Judgement and Order dated 24.05.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 8526 of 2005]
Judges: Tarun Chatterjee & R.M. Lodha, JJ.
Date of Judgment: Nov 13, 2009
Appearances:
Appearances
Mr. Sushil Kumar Jain, Mr. Puneet Jain, Ms. Eshila Barua, Ms. Pratibha Jain, Advocates for the Appellant(s).
Mr. Vivek K. Goyal, Addl. Advocate General, Mr. Kuldip Singh, Advocates for the Respondent(s).
Mr. Sushil Kumar Jain, Mr. Puneet Jain, Ms. Eshila Barua, Ms. Pratibha Jain, Advocates for the Appellant(s).
Mr. Vivek K. Goyal, Addl. Advocate General, Mr. Kuldip Singh, Advocates for the Respondent(s).
Head Note:
CRIMINAL LAWS
Criminal Procedure Code, 1973
Section 482 – Penal Code, 1860, Sections 498A, 494 and 506/34 – Divorce petition by Appellant – Marriage dissolved with effect from 8.2.2001 – Got remarried on 2.1.2002 – Brother of ex-wife filing FIR against appellant and his family members alleging demand of dowry and re-marriage – Case registered under Sections 498A, 494 and 506/34 IPC – Challan submitted against them in the court of judicial magistrate – Family member’s application under Section 482 CrPC allowed by High Court and FIR quashed but appellant’s application rejected on the ground that he married second time when first marriage was subsisting. Held High Court order cannot be sustained. Appellant did not remarry when his first marriage was subsisting and this fact was brought to the knowledge of High Court when it quashed FIR.
Criminal Procedure Code, 1973
Section 482 – Penal Code, 1860, Sections 498A, 494 and 506/34 – Divorce petition by Appellant – Marriage dissolved with effect from 8.2.2001 – Got remarried on 2.1.2002 – Brother of ex-wife filing FIR against appellant and his family members alleging demand of dowry and re-marriage – Case registered under Sections 498A, 494 and 506/34 IPC – Challan submitted against them in the court of judicial magistrate – Family member’s application under Section 482 CrPC allowed by High Court and FIR quashed but appellant’s application rejected on the ground that he married second time when first marriage was subsisting. Held High Court order cannot be sustained. Appellant did not remarry when his first marriage was subsisting and this fact was brought to the knowledge of High Court when it quashed FIR.
Penal Code, 1860
Section 494 – Appellant remarrying after getting his first marriage dissolved – Whether action of appellant attracts provisions of Section 494. Held no.
Section 498A- Criminal Procedure Code, 1973, Section 482 – Appellant remarrying after getting his first marriage dissolved – Brother of ex-wife filing FIR alleging demand of dowry and harassment meted out to ‘K’ ex-wife – High Court observing no dowry demand and no specific entrustment of dowry articles to appellant as alleged in FIR – Affidavit filed by ‘K’ shows no demand for dowry. Held prosecution of appellant is frivolous and abuse of process of law. FIR quashed.
Held:
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 FIR No. 9 and the subsequent criminal 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. (Para 7)
Held
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 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. (Para 8)
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. Appeal allowed. (Para 11)
JUDGEMENT:
R.M. Lodha, J.
1. 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 FIR No. 9 dated January 21, 2002 registered at Police Station Sehna under Sections 498A, 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 FIR 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 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 498A, 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 FIR No. 9 and criminal prosecution against them. Vide order dated April 29, 2004, the High Court allowed the petition and quashed FIR 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 FIR No. 9/2002 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 FIR No. 9 and the subsequent criminal 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 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 498A 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.
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, FIR 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.
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1. 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 FIR No. 9 dated January 21, 2002 registered at Police Station Sehna under Sections 498A, 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 FIR 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 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 498A, 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 FIR No. 9 and criminal prosecution against them. Vide order dated April 29, 2004, the High Court allowed the petition and quashed FIR 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 FIR No. 9/2002 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 FIR No. 9 and the subsequent criminal 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 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 498A 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.
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, FIR 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.
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