Proclaimed Offender

After First Information Report (FIR) has been registered against Non-Resident Indian (NRI) who is not in India and is not aware of any such criminal proceedings against him, such Non-Resident Indians (NRI) may be declared proclaimed offender.

How NRI is declared Proclaimed Offender (PO)

The process by which a person is declared proclaimed offender is this. When police investigation starts after lodging of First Information Report (FIR), and the police is unable to find the accused person, the police makes an application in the court for the arrest warrants of the accused. The court accepts the application for arrest warrants and an order is passed. With the help of arrest warrants, police raids several places and takes statements of persons residing near the Indian address of the accused. In case no such last known address is available with the police, the police informs the court about this fact. If the police is unable to trace the accused, proclamation under section 82 and 83 of Criminal Procedure Code is issued against the accused by an order of the court. After proclamation has been issued, statement of the serving Constable is recorded in the court. Generally, on the date statement of serving Constable is recorded in the court, an accused person is declared proclaimed offender.

In case the accused does not want to visit India during his lifetime, he should not be worried at all about this. There are very less chances of extradition of a person from another country to India. The problems arise only if the accused person wants to visit India. In such cases, one should never file anticipatory bail in the lower court (district court). One should file quashing of the order declaring an accused person proclaimed offender directly in High Court having the jurisdiction. In such cases, a prayer is made that the accused person who is not in India wants to come to India and wants to surrender before the court in which the case is pending. Further prayer is made in such quashing petition is that in case the accused person surrenders before the court, he should not be arrested and should be released on bail immediately on surrender because the accused person himself is coming to India and submitting to the jurisdiction of Indian courts on his own accord and is ready to face trial.

What to do once you have been declared Proclaimed Offender (PO)?

Once NRI has been declared Proclaimed Offender (PO), it is not advisable to file a petition for anticipatory bail. Instead, correct procedure is to file quashing of Proclaimed Offender (PO) order passed by the trial court in which the case is pending. Important judgments which are applicable in quashing of Proclaimed Offender order are as following:-

  • NOTE:- Never file anticipatory bail when you have been declared Proclaimed Offender (PO). File quashing of PO order.

Rahul Dutta v. State of Haryana (P&H) 2012(2) Cri.CC 697

JUDGMENT
Rakesh Kumar Jain, J. – The petitioner has prayed for regular bail in a pending trial case registered vide FIR No. 127 dated 08.08.2009, under Sections 498-A, 406/34, 174-A of the Indian Penal Code, 1860 [for short “Indian Penal Code”] at Police Station Sector-40, Gurgaon, District Gurgaon.

2. The FIR is registered on the complaint of Akansha Bakshi, wife of the petitioner, who has alleged that the petitioner is settled in Australia. She had been to Australia with her parents and brother before her marriage to verify about the job etc. of the petitioner where she was pressurised to perform paper marriage on 14.06.2008, but her marriage according to Hindu rites was again performed on 14.02.2009. On 28.02.2009, she left for Australia with the petitioner and his brother for more than one month or so. In this interregnum, she was allegedly harassed for demand of dowry. She came back to India for taking her exams on 05.04.2009. Her father gave her Hyundai-i10 car and when she was forced to leave her matrimonial home on 10.05.2009, all her dowry articles/jewellary were retained by her in-laws.

3. Learned counsel for the petitioner has submitted that the petitioner went to Australia in the year 2000 for doing the course in hospitality management and acquired the Australian citizenship in the year 2005. The matrimonial alliance of the petitioner with the complainant was the result of a family acquaintance. The petitioner came to India in December, 2007 and on 14.01.2008, they were formally engaged in a family function and on 27.05.2008 the complainant along with her parents and brother went to Melbourne and stayed with the petitioner for 21 days. On 29.05.2008, a request was made for registration of marriage before the Australian Court which was accordingly registered on 14.06.2008 and after returning to India, the complainant submitted her visa application to the Australian Embassy along with the statement of her relationship. In terms of the wishes of the complainant’s family, the marriage of the petitioner with the complainant was performed as per Hindu rites at Gurgaon on 14.02.2009. On 17.02.2009, the couple went for a Honeymoon to Thailand. They came back to India on 25.02.2009 and left for Melbourne again on 28.02.2009 as the visa of the complainant had already been approved. The complainant came back to India on 04.04.2009 in order to take her exams which were scheduled for 13.05.2009 and on her return, her father gave her a Hyundai-i10 car. She went to her parents’ house on 10.05.2009 for taking her exams, but thereafter the present FIR was registered on 08.08.2009 after due deliberations.

4. It is submitted that the allegations made in the FIR are vague and general in nature, no complaint was ever made in Australia about the alleged harassment for dowry and that the parents of the petitioner are on bail inasmuch father of the petitioner was released on regular bail on 10.08.2009 by the learned Trial Court and his mother has been released on anticipatory bail by this Court on 10.09.2009. He has also submitted that while releasing the mother of the petitioner on anticipatory bail, this Court had observed that all the dowry articles have been returned except for Rs. 1,50,000/- regarding which security/surety was ordered to be furnished. Learned counsel for the petitioner has further submitted that the petitioner was arrested on 31.10.2011 and according to the learned State Counsel, the challan has been presented on 05.12.2011. He has further submitted that the petitioner had applied for regular bail before the learned Trial Court which was dismissed vide its order dated 09.11.2009 on the ground that the petitioner has been declared a proclaimed offender on 12.08.2010 and consequently an offence under Section 174A Indian Penal Code is also added in the existing FIR.

5. It is submitted that not only the entire proceedings declaring the petitioner a proclaimed offender are illegal but also the petitioner cannot be declared a proclaimed offender for the offences under Sections 498-A, 406/34 Indian Penal Code in view of Section 82(4) of the Code of Criminal Procedure, 1973 [for short “Criminal Procedure Code”]. He has also relied upon decisions of this Court in this regard in the cases of Satinder Singh v. The State of U.T., Chandigarh and another, 2011(2) RCR. (Criminal) 89, Likhma Ram v. State of Punjab and another, CRM-M-36988-2010 decided on 07.12.2011 and Sarabjit Rai v. State of Punjab, CRM-M-37489-2011 decided on 27.01.2011.

6. He has also submitted that on 14.05.2010, an application was moved by the police for issuance of publication against the petitioner on the ground that he was evading arrest despite issuance of warrants on 28.11.2009 and 14.05.2010.

7. It was alleged in the said application that the police has verified that the petitioner is the resident of House No. 98, Mohyal Colony, Sector-40, Gurgaon and had not visited his house from the last 10-11 months. It is alleged that the learned Trial Court, without applying its mind, issued the proclamation against the petitioner vide its order dated 14.05.2010 for 12.08.2010. As soon as the publication proceedings were carried out and the father of the petitioner came to know that a proclamation notice has been pasted on the outer door of their house, he moved an application on 12.06.2010 before the learned Trial Court for dropping the proclamation proceedings alleging that since the petitioner had not visited India since February, 2009, therefore, there is no question of his evading arrest specially when his Australian address is very well known to the complainant on which he was never tried to be served.

8. However, vide order dated 12.08.2010, the learned Trial Court declared the petitioner a proclaimed offender. Learned counsel for the petitioner has submitted that there is a total non-application of mind on the part of the learned Trial Court in declaring the petitioner a proclaimed offender as he did not refer to the relevant provisions of law.

9. In reply, learned counsel for the complainant has submitted that conduct of the petitioner by itself disentitles him to the grant of bail because while entering India through Nepal, he did not mention in his Arrival Card that he is an NRI. He has maintained dual citizenship as his name is still appearing in the ration card No. 725638 issued by the Food and Supply Department, Gurgaon. The father of the petitioner had threatened Hari Krishan Khosla, who had joined the inquiry at the time of police verification about the whereabouts of the petitioner for the purpose of his arrest. She has also submitted that in his divorce application filed in Australia, he had given date of separation as 04.05.2009. However, she could not deny that the father of the petitioner was granted regular bail by the learned Trial Court just after a day of his arrest and when the mother of the petitioner was granted anticipatory bail, it was recorded that the entire dowry articles have been recovered except an amount of Rs. 1,50,000/- for which security/surety has been furnished. It is also not denied that the petitioner is in custody from 31.10.2011 and the challan has already been presented on 05.12.2011.

10. I have heard learned counsel for the parties and perused the available record with their able assistance.

11. In this case, the most interesting question is as to whether the learned Trial Court could have declared the petitioner a “proclaimed offender” for the offence under Sections 498-A, 406/34 Indian Penal Code? In this regard, learned counsel for the petitioner has extensively made reference to various provisions of law.

12. As a matter of fact, the word “proclaimed offender” is not defined anywhere in the Criminal Procedure Code In the scheme of the Criminal Procedure Code, the word “proclaimed offender” appears in Section 40(1)(b) wherein every officer employed in connection with the affairs of a village and every person residing in a village are bound to forthwith communicate to the nearest Police Station about the information he may possess respecting a “proclaimed offender”. Section 40(2)(ii) Criminal Procedure Code deals with the expression “proclaimed offender” which includes a person proclaimed as an offender by any Court in respect of the offence punishable under any of the provisions of the Indian Penal Code, namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive). Section 43 Criminal Procedure Code further provides power to even a private person to arrest a “proclaimed offender”, whereas Section 82 Criminal Procedure Code also deals with the procedure with regard to proclamation.

13. Section 82, according to Code of Criminal Procedure, 1973, reads as under :

“82. Proclamation for person absconding. – (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows :-

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.”
14. However, by way of Section 12 of Act No. 25 of 2005, subsections (4) and (5) were also inserted in Section 82 Criminal Procedure Code w.e.f. 23.06.2006 vide notification No. S.O. 923(E) dated 21.06.2006, which reads as under :

“[(4) Where a proclamation published under subsection (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, 1860, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.]

[(5). The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]”
15. Similarly, by way of Section 44 of Act No. 25 of 2005, Section 174-A was also inserted in the Indian Penal Code by which punishment was provided in respect of proclamation of a person and a proclaimed offender. Section 174A Indian Penal Code is reproduced as under :

“[174-A Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. – Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 (2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]”
16. Till the amendment by Act No. 25 of 2005, proclamation was being done in respect of a person against whom a warrant has been issued and who has been either absconding or concealing himself to evade the execution of warrants but by way of Act No. 25 of 2005, in consonance with Section 40(2)(ii), sub- section (4) is made a part of Section 82 Criminal Procedure Code.

17. The offences mentioned in Section 82(4) Criminal Procedure Code are of recurring nature. All the persons, who are absconding or concealing themselves to evade execution of warrants of arrest, could be proclaimed persons but they could be declared a “proclaimed offender” only under the provisions of the Indian Penal Code which are mentioned in Section 82(4) Criminal Procedure Code There is stark distinction between a proclaimed person and a proclaimed offender and for that reason, there is a difference of punishment provided under Section 174A Indian Penal Code as it provides imprisonment which may extend upto three years or with fine or with both regarding a person who has been proclaimed in terms of Section 82(1) Criminal Procedure Code and the imprisonment which may extend upto seven years and also with fine in respect of a person who is declared a “proclaimed offender” under Section 82(4) Criminal Procedure Code.

18. I have also minutely examined those sections of Indian Penal Code mentioned in Section 40(2)(ii) Criminal Procedure Code and have found that Sections 435, 450 and 457 Indian Penal Code are not mentioned in Section 82(4) Criminal Procedure Code, whereas Section 364, 367, 400 and 459 Indian Penal Code are additionally mentioned therein.

19. Learned counsel for the petitioner has also argued that Sections 83 to 86 Criminal Procedure Code deal with the proclaimed person and provide a complete procedure with regard to the attachment of his property but it does not deal with a person who has been declared to be a “proclaimed offender”.

20. Thus, in view of the aforesaid discussion, I am of the considered opinion that the terms “proclaimed person” and “proclaimed offender” have different connotations. A person who is evading the execution of warrants of arrest issued under the particular Sections of the Indian Penal Code which are mentioned in Section 82(4) Criminal Procedure Code, can only be declared to be a proclaimed offender and the persons under the other provisions of the Indian Penal Code and the laws, can be declared to be a proclaimed person in terms of Section 82(1) Criminal Procedure Code.

21. Thus, keeping in view the facts and circumstances of this case, but without making any observation on the merits, the present petition is hereby allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds to the satisfaction of the learned Trial Court.

Petition allowed.

Kuldip Singh Jaswal v. Jaspal Singh 2016(2) AICLR 703

JUDGMENT

Rameshwar Singh Malik, J. (Oral) – Petitioners, by way of instant petition under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short), seek quashing of impugned complaint No. 316/108 filed on 28.7.2007 titled as (Jaspal Singh v. Kuldip Singh Jaswal and others), pending in the court of learned Additional Chief Judicial Magistrate, SBS Nagar (Nawanshahar) Annexure P-4, summoning order dated 6.2.2009 (Annexure P-5), order dated 16.1.2012 (Annexure P-6) declaring the petitioners as proclaimed offenders and order dated 14.3.2012 (Annexure P-8) attaching the property of the petitioners, as well as the consequential criminal proceedings arising therefrom.

2. Notice of motion was issued and interim order was passed. Respondent No.1 filed his reply, whereas a separate reply was filed on behalf of the State of Punjab.

3. Learned counsel for the petitioners submits that institution of the impugned complaint and continuation thereof as well as the criminal proceedings arising therefrom, amount to glaring misuse of process of Court. He further submits that in the present case, marriage took place on 15.1.2004 at Nawanshahr. Petitioner No.1-husband, who was already staying in Canada at the time of his marriage, left for Canada in March 2004. Out of this wedlock, a female child was born on 4.11.2004. He sponsored his wife Parampreet Kaur Jaspal and she also went go Canada on 2.8.2006. Husband and wife along with their child stayed happily together from 2.8.2006 up to 28.7.2007. However, differences arose between husband and wife. Wife of petitioner No.1 filed a complaint in the court of competent jurisdiction in Canada on 9.8.2007.

4. During this period, the impugned complaint (Annexure P-4) came to be filed in India by respondent No.1-father of Parampreet Kaur Jaspal, against as many as 11 persons including three petitioners, who are husband, father-in-law and mother-in-law of Parampreet Kaur Jaspal, daughter of respondent No.1-complainant. The impugned summoning order dated 5.2.2009 (Annexure P-5) came to be issued only against first three accused-petitioners herein, and the remaining 8 accused Nos. 4 to 11 were not summoned. He further submits that since the complainant-respondent intentionally gave incorrect and only Indian addresses of the petitioners, despite knowing fully well that petitioners were residing in Canada, the impugned order dated 16.1.2012 (Annexure P-6) also came to be issued, declaring the petitioners as proclaimed offenders. He would next contend that complainant-respondent intentionally concealed another material fact from the notice of the learned trial Magistrate that in the meantime, wife of petitioner No.1 filed her detailed affidavit dated 28.9.2009 in the Supreme Court of British Columbia at Annexure P-1, which is available from pages 25 to 33 of the paper-book. Respondent No.1 further concealed that on the basis of affidavit of his daughter (Annexure P-1), all the disputes between husband and wife were resolved vide orders Annexures P-2 and P-3, including issuing the certificate of divorce, maintenance for the child and all other claims of the wife were granted to her, in accordance with law of the said country. He concluded by submitting that after getting divorce from petitioner No.1, daughter of the complainant-respondent performed her remarriage and staying there, in Canada itself.

5. However, the complainant is still bent upon to cause maximum harassment to the petitioners, because of his malafide intention which amounts to clear abuse of process of law. Learned counsel for the petitioners, on the issue of maintainability of the present petition through attorney, places reliance on a judgment of the Hon’ble Supreme Court in Rayullu Subba Rao and others v. Commr. of Income-tax, Madras, AIR 1956 SC 604 and a judgment of Andhra Pradesh High Court in Dr. Sudhakar Babu v. Duwuru (Murala) Negeswaramma and another, 2005 (1) CCR 230. He prays for setting aside the impugned complaint and all the consequential criminal proceedings arising therefrom, including the above-said orders contained in Annexures P-5, P-6 as well as order dated 14.3.2012, by allowing the present petition with costs.

6. Learned counsel for the State fairly states that since the issue was a matrimonial one and petitioners were seeking quashing of private complaint and proceedings arising therefrom, State had hardly any role to play and the matter may be disposed of, by passing appropriate orders.

7. However, learned counsel for the respondent-complainant vehemently opposes the present petition, contending that since it has been filed by the petitioners through attorney and not by themselves, it was not maintainable as such and liable to be dismissed for this reason alone. In this regard, he places reliance on the following judgments:-

1. Harishankar Rastogi v. Girdhari Sharma and another, AIR 1978 SC 1019;

2. Janata Dal v. H.S. Chowdhary and others, 1991 (3) SCC 756;

3. Simranjit Singh Mann v. Union of India and another, AIR 1993 SC 280; and

4. Amit Ahuja v. Gian Parkash Bhambri, 2010 (3) RCR (Crl.) 586 (P&H).

8. Learned counsel for the complainant-respondent further submits that in spite of the fact that all the disputes between petitioner husband and his wife might have been settled in Canada, respondent complainant was competent to file, maintain and pursue the impugned complaint as well as criminal proceedings arising therefrom, against the petitioners. He refers to allegations levelled in the complaint, to contend that petitioners have committed the offences alleged against them and in such a situation, the impugned complaint was rightly filed by the respondent-complainant. He concluded by submitting that since the learned trial Court has rightly issued the summoning order, the order declaring the petitioners as proclaimed offenders as well as the order for attaching their property, present petition is liable to be dismissed. He prays for dismissal of the present petition.
9. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that keeping in view the given fact situation of the case referred to here-in-above, instant one has been found to be a fit case, warranting interference at the hands of this Court, while exercising its inherent jurisdiction under Section 482 Cr.P.C. To say so, reasons are more than one, which are being recorded hereinafter.

10. Taking first, the issue of maintainability of the present petition filed through attorney, when a pointed question was put to the learned counsel for the respondent-complainant to refer to any statutory bar provided by the legislature in the Code of Criminal Procedure or any Statute for that purpose, he had no answer and rightly so, it being a matter of record. So far as the judgments relied upon by the learned counsel for the respondent-complainant on this issue are concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgments, none of them has been found of any help to the respondent complainant, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgment law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon’ble Supreme Court in Padmausundra Rao and another v. State of Tamil Nadu and others, 2002 (3) SCC 533.

11. So far as the peculiar fact situation obtaining in the present case is concerned, respondent-complainant seems to be obsessed about the maintainability of the present petition, altogether ignoring as to whether the complaint, in the peculiar facts and circumstances of the case, was maintainable or not, particularly when his daughter has already settled not only the matrimonial dispute but other ancillary disputes as well, with her husband in Canada and thereafter living happily there in Canada itself, after performing her second marriage. No doubt, although this Court, would insist that any petition under Section 482 Cr.P.C for quashing of the FIR or complaint and the consequential proceedings arising therefrom, should be normally filed by the accused persons themselves, yet there cannot be and should not be laid down a straight jacket formula in this regard, leaving this issue to be considered and decided as per the peculiar facts and circumstances of each case. It is so said because there is no statutory bar in this regard provided under the Code of Criminal Procedure. So far as the present case is concerned, petitioners have specifically authorised their power of attorney holder, to file any such petition before this Court qua the impugned complaint. Having said that, this Court feels no hesitation to over rule the preliminary objection raised by the learned counsel for the respondent-complainant and it is held that in the given fact situation of the present case, instant petition is maintainable through the attorney.

12. Coming to the merits of the case, a bare reading of the impugned complaint (Annexure P-4), summoning order (Annexure P-5), order declaring the petitioners as proclaimed offenders as Annexure P-6, order attaching the property of the petitioners (Annexure P-8), affidavit of the wife of petitioner No.1 (Annexure P-1) and orders passed by the competent court of Canada at Annexures P-2 and P-3 including the divorce certificate, leaves no manner of doubt that although the parties to the marriage have settled all their disputes, following appropriate process of court, yet the complainant, who is father of former wife of petitioner No.1, is still bent upon to cause maximum harassment to the petitioners, with a view to wreck his vengeance, which clearly amounts to glaring misuse of process of court.

13. In fact, in the peculiar facts and circumstances of the case, his complaint was not even maintainable. It is so said, because the impugned complaint was based on mala fide intention of respondent No.1- complainant, whereby he sought to implicate as many as 11 accused, including distant relatives of the petitioners, thus, complainant-respondent cannot be said to be a genuine and honest litigant. His intentions were not bona fide right from day one. He has launched frivolous litigation for extraneous considerations, with a view to black mail the petitioners. Such kind of frivolous litigation cannot be permitted to continue, for twin reasons and purposes, namely to prevent any further abuse of process of the court and also to secure the ends of justice.

14. A bare combined reading of detailed order dated 22.9.2010 (Annexure P-2), passed by the Supreme Court of British Columbia, would show that custody of the child was granted to the mother, namely Parampreet Jaswal-former wife of petitioner No.1, with visiting rights to the father-petitioner No.1. Petitioner No.1 has been directed to pay different amounts. The relevant part of the order reads as under:-

“Pursuance to section 15.1 (1) of the Divorce Act (Canada), the defendant shall pay to the Plaintiff, the Guideline amount of $ 383.00 per month for the support of the Child, payable on the 1st day of each month,commencing May 1, 2010, and continuing for so long as the child is no longer “child of the marriage” as defined in the Divorce Act(Canada) or are no longer defined as “child” under the Family Relations act.

Pursuant to section 7 of the Federal child Support Guidelines, the Defendant shall pay to the plaintiff 50% of the costs associated with the Special and Extraordinary Expenses relating to the Child, to include the following:

a. Effective April 1, 2010, the Defendant shall pay to the plaintiff $ 71.50 per month, representing one-half of the Child’s daycare expenses, until September 1,2010;

b. Effective September 1,2010, the Defendant shall pay the sum of $125.00 per month to the Plaintiff, representing one-half of the Child’s daycare expenses;

c. Should daycare fees change, the Defendant will continue to pay to the plaintiff 50% of such costs, upon the plaintiff providing proof of such change; and

d. The Plaintiff will forward to the Defendant receipts of daycare fees along with records of subsidy amounts relating to such costs.

Pursuant to section 15.1. (5) of the Divorce Act (Canada), the Plaintiff and the Defendant having agreed to a fixed amount of $2000 owing by the Defendant as arrears of Child support, the defendant shall pay to the Plaintiff, the amount of $ 100 per month towards such arrears, in addition to the basic Child support amount and Section 7 Expenses as described in paragraphs 5 and 6;

Pursuant to sections 64, 65 and 66 of the Family Relations Act, the Defendant shall pay to the Plaintiff, the sum of $ 500.00 in full and final satisfaction of her claims for spousal support.

Pursuant to Sections 64, 65 and 66 of the Family Relations Act, the Defendant shall pay to the plaintiff, the sum $4000.00 plus interest to be calculated from July 31, 2007 to the date of payment, with such interest being $253.15 calculated at the current Bank of Canada interest rate, and such payment shall be in full and final satisfaction of property settlement issues;

Certificate of Pending Litigation No. BB 15701 registered by the Plaintiff against property legally described as PID 001- 908-197 Smara Lot 123 Section 20 Township 16 New Westminister District Surata plan NW 1689 Together with an interest in the common property in proportion to the unit entitlement of the strata lot as shown in Form I, shall be cancelled.”

Further, the certificate of divorce (Annexure P-3) between Parampreet Jaswal and her husband-petitioner No.1, reads as under:-

“This is to certify that PARAMPREET JASWAL and KULDEEP SINGH JASWAL who were married on January 15, 2004 were divorced under the Divorce Act (Canada) by an order of this Court which took effect and dissolved the marriage on October 23, 2010.

Given under my hand and the seal of this Court the 3rd day of November, 2010.

01 Nov. 10 Digitally signed

Field Shelley

Registrar”

15. Complainant-respondent No.1 did not feel satisfied in spite of the above-said orders having been passed by the court of competent jurisdiction. Not only that, Parampreet Jaswal has performed her second marriage in Canada itself and even now she is staying there. Despite knowing fully well, complainant concealed all these facts from the notice of learned court below that the proceedings have culminated into the above said orders (Annexures P-2 and P-3), besides the fact that all the three petitioners were living in Canada for the last very many years. Respondent complainant intentionally concealed these facts from the notice of the learned trial Magistrate and got the petitioners declared proclaimed offenders vide order dated 16.1.2012 (Annexure P-6). Thereafter, he moved an application (Annexure P-7) for getting the property of the petitioners attached and the same was ordered to be attached by the learned Magistrate vide order dated 15.3.2012 (Annexure P-8). This was the maximum which the complainant-respondent could have done, to cause maximum harassment to the petitioners, by misusing the process of Court.

16. Had the complainant-respondent brought these material facts to the notice of the learned Magistrate, there was no scope for passing these impugned orders, at the hands of the learned Magistrate. However, since respondent-complainant was pursuing dishonest litigation, he withheld the material information from the notice of the Court, so as to get favourable orders. Thus, respondent-complainant did not show any respect to the justice delivery system, while playing fraud with the court. Such kind of frivolous litigation is liable to be dealt with by the courts with strong hand, so as to send a loud and clear message to such type of dishonest litigant that nobody is above the law and such kind of frivolous litigation has no place in the court of law.

17. The allegations levelled by the complainant in the impugned complaint were so absurd and baseless that the trial Magistrate issued the summoning order only qua the petitioners, whereas there were as many as 11 accused in the impugned FIR. It clearly goes to show that the complainant-respondent could not make out even a prima facie case against 8 accused out of total 11 implicated by him in his complaint and he did not challenge the order of the learned Magistrate for not summoning the remaining 8 accused, for the reasons best known to him. In such a situation, it can be safely concluded that the complainant-respondent has shown no respect for the law and he was proceeding on his malafide approach by misusing the process of Court. Thus, the impugned complaint, summoning order dated 6.2.2009 (Annexure P-5), order dated 16.1.2012 (Annexure P-6), declaring the petitioners as proclaimed offenders and order dated 14.3.2012 (Annexure P-8) attaching the property of the petitioners, as well as all the consequential criminal proceedings arising therefrom, cannot be sustained, for this reason also.

18. The above-said view taken by this Court also finds support from the following judgments of the Hon’ble Supreme Court and this Court:-

(1) G.V. Rao, v. LHV Prasad, 2000 (3) SCC 693;

(2) Sundar Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244;

(3) Preeti Gupta and another v. State of Jharkhand and another, 2010 (7) SCC 667;

(4) Geeta Mehrotra v. State of U.P. And another 2012 (10) SCC 741;

(5) K. Srinivas Rao v. D.A. Deepa 2013 (5) SCC 226;

(6) Sushil Kumar Sharma v. Union of India and others 2005 6) SCC 281;

(7) Madan Lal and others v. State of Punjab (P&H) 2012 (8) RCR (Crl.) 428;

(8) Gurdial Singh v. State of Punjab and another (CRM-M- 36189 of 2010), decided on 31.7.2015.

The relevant observations made by the Hon’ble Supreme Court in para 28 and 30 to 35 of its judgment in Preeti Gupta’s case (supra), which can be gainfully followed in the present case, read as under:-

“It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

xxx xxx xxx xxx

xxx xxx xxx

It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinised with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.”

19. Reverting back to the fact situation of the present case and respectfully following the law laid down by the Hon’ble Supreme Court as well as this Court, in the judgments referred to herein-above, it is unhesitatingly held that complainant-respondent has been misusing the process of law for his ulterior motives and the same cannot be permitted to continue any further, so as to prevent any further abuse of process of court and to secure the ends of justice.
20. No other argument was raised.

21. Considering the peculiar facts and circumstances of the case noticed above, coupled with the reasons aforementioned, this Court is of the considered view that present petition deserves to be accepted with costs, which are quantified at Rs.50,000/-.

22. Consequently, the impugned complaint (Annexure P-4) summoning order dated 6.2.2009 (Annexure P-5), order dated 16.1.2012 (Annexure P-6), declaring the petitioners as proclaimed offenders and order dated 14.3.2012 (Annexure P-8), attaching the property of the petitioners, as well as the consequential criminal proceedings arising out of the impugned complaint, are hereby ordered to be quashed.

23. Respondent-complainant is directed to deposit the amount of costs of Rs.50,000/- within a period of two months with the Secretary, Punjab State Legal Service Authority, Chandigarh, failing which the said amount shall be recovered by the Collector, Nawanshahar (SBS Nagar), as arrears of land revenue, in accordance with law and thereafter shall deposit the same with the Secretary, Punjab State Legal Service Authority, Chandigarh. Registry is directed to supply a copy of this order to the Collector, Nawanshahar for compliance thereof.

24. Resultantly, with the above-said observations made and directions issued, the present petition stands allowed with costs, as indicated above.

Inderjit Singh v. State of Punjab 2015(3) Law Herald 2600

JUDGMENT
Raj Mohan Singh, J. – Petitioner seeks quashing of criminal complaint No.230 dated 26.08.2009, titled as Swaran Singh v. Inderjit Singh and others, under Sections 420, 120-B IPC, along with summoning order dated 30.08.2013 passed by Judicial Magistrate Ist Class, Tarn Taran along with entire subsequent proceedings.

2. Father of petitioner had four sons namely Inderjit Singh (petitioner), Ramesh Kumar, Hardeep Kumar and Pawan Kumar. Petitioner sold one plot measuring 13½ malra out of joint land to Harbans Lal vide registered sale deed. Ramesh Kumar challenged the aforesaid sale deed in civil suit No.21 for declaration and permanent injunction.

3. Civil Court while deciding the suit gave categoric finding in para No.12 of the judgment while deciding issues No.1 and 2 collectively. Para No.12 of the judgment is reproduced as under:-

“It is needless to produce arguments. The sole point involved in this case is that whether property can be sold by defendant no.1 to defendant no.2 and further from defendant no.2 to defendant no.3 legally. As far as, sale by defendant no.2 to defendant no.3 is concerned, there can be no challenge to it as defendant no.2 has sold as he has purchased from defendant No.1 So, that sale deed is perfectly alright and cannot be declared as void and fabricated document nor the plaintiff has any right to get declared it null and void. Now, the question is whether defendant no.1 can sell the property inherited from his father without getting it partitioned. The answer is yes as it is clear that Rattan Chand died without executing any will. So all his sons have become owner of the property in their respective shares. Now, it is not clear from the plaint itself that what properties were left by Rattan Chand. The sale executed by defendant no.1 in favour of defendant No.2 does not figure in the plaint that in what regards the sale deed was. The cosharer can sell the property which fell into his share. Even he can sell in excess of his share regarding particular property. The only remedy available for the plaintiff to go into for partition If any cosharer has sold particular property in excess of his share then he has to compensate other cosharer in other parcels of the property. Moreover, this suit is simple for declaration without seeking any relief. It is clear that possession was delivered by defendant no.1 to defendant No.2 and from defendant No.2 to defendant No.3. So it is clear that plaintiff is not in possession of property either exclusive or joint. The same has not been sought, so, suit is clearly barred under provisions of Section 34 of Specific Relief Act. Even otherwise, declaration cannot be sought to declare the sale deed executed between defendants no.1 and 2 on the ground that document is perfectly alright. The only question is regarding competency of defendant no.1 which I find that has to be seen after filing of suit for partition. Accordingly, right course for the plaintiff is to seek partition of the property and not declaration for declaring sale deeds null and void. Defendant no.1 can execute sale deed qua his share. So, he has rightly exercised his powers. Hence, both these issues are decided against the plaintiff and in favour of defendants.”
4. Trial Court specifically held that all the sons of Rattan Chand were owners of their respective shares and the sale deed executed by Inderjit Singh (petitioner) in favour of Parveen Kumar did not figure out in the plaint. Co-sharer can sell his share rather he can even sell in excess of his share which is always subject to partition. A simple suit for declaration was not held maintainable under Section 34 of Specific Relief Act. Therefore, the sales effected by petitioner were held genuine and only course available with the complainant was to seek partition of the property and not declaration to annul the sale deeds. The judgment and decree passed by Civil Judge, Senior Division, Tarn Taran were never assailed by the complainant.

5. Rather a criminal complaint has been filed by one Swaran Singh not disclosing in the memorandum that he is holder of power of attorney of Ramesh Kumar, who was residing abroad. The complaint does not carry any recital of Swaran Singh as power of attorney of Ramesh Kumar. Only vague pleadings are given in para No.2 of the complaint that Ramesh Kumar and his power of attorney can pursue all his civil cases regarding the property in Fatehabad. The recital does not show that Swaran Singh was ever appointed as general power of attorney to file the present complaint or he was authorised to file criminal complaint in any manner because the recital only relates to pursue all civil cases regarding the property in village Fatehabad.

6. Criminal complaint ultimately tried by the Sub-Divisional Judicial Magistrate, Khadoor Sahib. Special power of attorney was tendered in the statement of complainant Swaran Singh as CW-4/A. Ramesh Kumar did not appear before the trial Court. Trial Court held that the bone of contention between the parties was that petitioner sold the property without getting the partition of joint land effected. Inderjeet Singh being attorney of Hardeep Kumar and Pawan Kumar subjected the property to sale in respect of plot and shop.

7. Paras No.18, 19, 20, 21, 22 and 23 of the judgment passed by Sub-Divisional Judicial Magistrate, Khadoor Sahib are relevant to be quoted in the present context, which are reproduced as follows:-

“18. The main bone of contention is that without partition, accused Inderjit Singh sold the property i.e. plot Khasra no.177/2 (1-0), 177/3 (1-19) and one shop to accused no.2 to 5. The first sale deed in dispute is dated 28.1.2000 Ex.C-1. The said sale deed has been executed by Inderjit Singh being the power of attorney holder of Hardeep Kumar, Pawan Kumar. Hence, the property of Khasra no.177/2 and 177/3 has been sold by three brothers Inderjit Singh, Hardeep Kumar and Pawan Kumar. The second sale deed is dated 28.1.2000 Ex.C-5 which is relating to one shop (33 x 10.5 feet) executed by Inderjit Singh. Here it is pertinent to mention that Rattan Chand owned many properties in his name. Even the complainant Swaran Singh, during his cross examination admitted this fact. He has admitted in his cross examination that Rattan Chand has one residential house having 15 rooms and two floors. Rattan Chand had also one poultry farm in one kanal and had also got 6 to 7 shops and many other properties. It has also come on record that no partition has taken place between the brothers, which means all the properties are joint among the brothers. It is settled law that co sharer can sell the property, which falls in his share. Even he can sell excess of his share regarding particular property and the only remedy available with the other co sharer is to go for the partition. Without any clear partition it can not be said that a particular property, which has fallen into share of one brother has been sold. If the accused has sold some property after the death of his father, being one of the co owners, then that property will be deemed to be sold out of the share of the accused no.1 and will be taken into consideration at the time of partition. If accused no.1 has sold the property in excess of his share, then, he has to compensate other co shares in other parcels of the properties.

19. The sale deeds under reference are valid documents i.e. certified copy of registered sale deed dated 28.01.2002 registered on 31.01.2002 executed by Inderjit Singh in favour of Harjinder Singh, certified copy of said sale deeds 28.01.2002 and of dated 22.05.2002 Ex. C-4, Ex. C-5 and Ex.C-6. So far as the sale deed executed between accused no.5 and 6 is concerned, there can be no challenge to it as the accused no.5 has sold the property which has been purchased by him from accused no.1. Complainant can not say that there was any ‘ill will’ on the part of accused no.6 in purchasing that property from accused no.5. Moreover, there is no evidence qua this fact.

20. Ld. counsel for the accused has placed on record one judgment dated 20.12.2011 Ex. R-1. A civil suit was filed by Ramesh Kumar son of Rattan Chand against Inderjit Singh accused no.1, Parveen Kumar and Harbans Lal accused no.5 and 6 in which he sought the relief of declaration regarding cancellation of sale deeds dated 30.1.2000 and 22.5.2000 but the said suit was dismissed by the court of competent jurisdiction and it was held that the sale deeds are perfectly valid sale deeds and one of the co sharer can sell the property and the right course of the plaintiff is to seek partition of the property and not declaration for declaring the sale deed as null and void. In view of the civil suit decided by the court of competent jurisdiction it is also evidently clear that the only remedy with the other co sharer are to file the suit for partition. In the case in hand also, there is no ingredient of 420 IPC made out.

21. Now coming to the point whether accused has committed an offence of cheating punishable u/s 420 of IPC. The word cheating has been defined u/s 415 of IPC. The main ingredients of section 420 are:

1) That the accused cheated another person.

2) That he hereby induced:

a) Delivery of property of any person, which property did not belong to the accused, or b) To make, alter or destroy the whole or any part of a valuable security, or c) Anything which is signed or sealed an capable of being converted into a valuable security.

3) That he did not dishonestly.

22. In the case in hand, there is no deception on the part of any of the accused. The complainant failed to prove on record that there was any fraudulent and dishonest intention on the part of the accused due to which the sale deeds has been executed. The complainant could not explain that if there was any dishonest intention or deception on the part of the accused. In absence of any such dishonest intention or deception, it can not be safely said that accused committed cheating with the complainant.

23. From the perusal of above discussion, I arrived at a conclusion that the complainant has miserly failed to prove his case beyond reasonable doubt. Therefore, the accused namely Harjinder Singh, Satwant Kaur, Gurpreet Singh, Parveen Kumar and Harbans Lal stands acquitted of the charges framed against them and they stand discharged of the liability of bail bonds furnished by them and their sureties stands discharged of the liability of the surety bonds furnished by them. The file be consigned to the Record Room after due compliance and shall be taken up as and when the accused Inderjit Singh (P.O.) surrenders himself before the court of the arrested by the police.

Pronouned in the open Court.”
8. The grievance of the complainant is that petitioner sold away joint land and shop belonging to himself as well as to his brothers Hardeep Kumar and Pawan Kumar on the basis of their attorney in favour of vendees. Sub-Divisional Judicial Magistrate, Khadoor Sahib acquitted all the other co-accused whereas petitioner was shown as proclaimed offender vide judgment of acquittal dated 19.07.2014.

9. Para 4 of the complaint is relevant to be quoted in the present context.

“That one plot measuring 13½ marlas as per Khasra No.177/3(1-0), 177/3(1-19) in village Fatehabad, Tehsil Khadoor Sahib surrounded by East: Plot of Sarwan Singh, West: Plot of Dharamvir Singh, North: Road, and on the Southern side Saroop Singh and one shop measuring (10½ x 33 ft.) surrounded as on the Eastern side property of Harbans Lal, on the Western side property of Dharamvir Singh, on the Northern side Street, on the southern side Market, Bazar Abadi situated at Bazar Andar Wala, Village Fatehabad, Tehsil Khadoor Sahib, district Tarn Taran was in the ownership of Rattan Chand son of Shri Jagan Nath. After death of Shri Rattan Chand his four sons namely Ramesh Kumar, Inderjit Singh, Pawan Kumar and Hardeep Kumar are owners as heirs. This property has not been partitioned till date amongst these four brothers and the property is the joint property, but accused Inderjit Singh alone has sold the said plot vide sale deed dated 28.01.2002 to accused no.2 to 4 in this manner, the same has been further sold to accused no.5 vide sale deed dated 28.1.2002 and the accused no.5 has further sold it to accused no.6 vide sale deed dated 22.05.2002.”
10. The complaint revolves around factum of sale deeds having been executed by petitioner. The factum of sale deed has been held to be genuine by the findings recorded by civil court as well as in the judgment of acquittal recorded by the criminal court in case of co-accused.

11. Since petitioner was declared proclaimed offender, therefore, he surrendered to the jurisdiction of Court and was granted bail by order dated 05.03.2015 passed by Additional Sessions Judge, Tarn Taran. Thereafter petitioner has been attending the Court proceedings regularly.

12. Learned counsel for the petitioner has also submitted that Hardeep Kumar and Pawan Kumar are mentally retarded brothers of petitioner and they are living in care and custody of petitioner in Canada . Even mother of petitioner is being attended by the family of petitioner in Canada .

13. The controversy arising out of complaint is revolving around factum of bona fide and legality of sale deeds executed by petitioner. According to petitioner these sale deeds were executed by lawful means in respect of property of petitioner himself as well as the properties of Hardeep Kumar and Pawan Kumar on the basis of attorney. The sales effected by petitioner have been found to be genuine by the civil Court. Attorney of Ramesh Kumar/complainant remained unsuccessful in civil suit and the judgment dated 12.12.2011 by civil Court has already attained finality. The entire controversy gives rise to a civil profile only and in the civil suit also, the complainant has failed to pin-point any illegality in the sale deed.

14. Petitioner has already joined the proceedings. Co-accused have been acquitted in a full-fledged criminal trial vide judgment of acquittal dated 19.07.2014. Since the only incriminating allegation is in respect of alleged illegality in the sale deed which could not be noticed by the civil court as well as by the criminal court, therefore, continuation of proceedings against petitioner is an abuse of process of law particularly on same set of allegations co-accused have already been acquitted.

15. Learned counsel relied upon decision rendered by this Court in CRM-M No.33466 of 2014 decided on 01.04.2015 titled as Deepak and another v. State of Punjab and submitted that continuation of proceedings would be an abuse of process of law and the proceedings be dropped and cites Sudo Mandal@ Diwarak Mandal v. State of Punjab, 2011(2) RCR (Crl.) 453.

16. On the other hand learned counsel for the complainant-respondent No.2 relies upon 2014(4) Law Herald 2970, Munfed and another v. State of Haryana to contend that complaint cannot be quashed in view of 2013(6) SCC 428 Yanab Sheikh @ Gagu v. State of West Bengal. It is true, the Court has to spring entire evidence and does not extend the threat of falsity to universal acquittal. The Court must examine entire prosecution evidence in its correct perspective before concluding the effect of acquittal.

17. In the present case, the incriminating allegation forming subject matter of criminal complaint was that petitioner sold plot and shop out of joint land. The complaint filed by Swaran Kumar has its own questionable background in the context of not reciting him to be power of attorney for the purposes of filing criminal complaint. The only recital in para No.2 was that Ramesh Kumar and his attorney were pursuing civil litigations. The factum of sale deeds were found to be genuine by the civil court and that judgment has already attained finality. In the criminal Court also co-accused have been acquitted.

18. After thorough perusal of evidence on record, there is no incriminating evidence over and above the evidence led before the trial Court which entailed in acquittal of co-accused. Therefore, above mentioned precedents do not coincide with the facts emerging in the present case. Ramesh Kumar complainant is still in Canada . Hardeep Kumar and Pawan Kumar are also in Canada and are being looked after by petitioner’s family along with their mother according to the assertion made by petitioner which has not been denied by respondent.

19. Taking into consideration the entirety of facts and circumstances, it is culled out that the controversy was of civil consequence and that civil suit has also culminated in dismissal of the claim of the complainant. Therefore, the only incriminating thing against the petitioner was that at one point of time he was declared to be proclaimed offender otherwise he also could have faced trial along with other co-accused who have since been acquitted. So far status of petitioner being proclaimed offender is concerned, he has already surrendered before the Court and has been granted regular bail on 05.03.2016.

20. Therefore, in the absence of any other incriminating allegation, the decision of civil court as well as criminal court in case of co-accused would make the continuation of these proceedings to be an abuse of process of law.

21. In view of facts and circumstances as detailed above, I am of the view that inherent jurisdiction of this Court can be exercised under Section 482 Cr.P.C., in order to prevent abuse of process of law and to achieve ends of justice in quashing criminal complaint No.230 dated 26.08.2009 titled as Swaran Singh v. Inderjit Singh, under Sections 420, 120-B IPC, along with entire subsequent proceedings including summoning order dated 30.08.2013.

22. Ordered accordingly.

.