counsel for the complainant and I am of the opinion that the main allegations
under Section 494 IPC were against Pakhar Singh who had allegedly
married Mohinder Kaur in the year 1971. The complaint admittedly had
been filed after a period of about 37 years. There is no specific day, date
and time mentioned in the complaint regarding first or second marriage. The
culpability of petitioner No.2-Mohinder Kaur is to be determined on the
basis of her knowledge of the first marriage besides the establishment of the
factum of second marriage being void. The fact remains that she cannot be
penalized for the delay being caused in the adjudication of the private
complaint which has been filed after a gap of 37 years. The property of
Pakhar Singh is situated in India. Petitioner No.2 Mohinder Kaur has got a
claim in the same. The litigation regarding her property is pending. It is a
settled principle of law that an accused will be deemed to be innocent till
proved guilty but at the same time life and liberty of an accused has not to be
prejudiced on account of any act of the Court. Maintainability of the
complaint after a period of 37 years would certainly be a debatable issue.
This Court is not expressing any opinion regarding the rights of the parties in
the property of Pakhar Singh. Striking a balance between the liberty of
petitioner No.2 and her status of innocence during the pendency of the trial
vis-à-vis the right of complainant to prosecute petitioner No.2 by
establishing the allegations to logical end, I deem it appropriate to permit
petitioner No.2, a lady, to leave India for a period of six months in order to
enable her to visit her home in Canada. It is ordered that petitioner No.2 will
be required to deposit a sum of Rs. 5 lacs with the trial Court and surety
bond for a sum of Rs.1 lac to the satisfaction of the Court to return after six
months which will be determined by the Court. Her passport will be
released to her on furnishing the above said surety and security. It is ordered
that the amount of Rs.5 lacs deposited in the Court would be released to the
complainant besides the right of the State to forfeit the amount in case the
conditions of the bond are violated by petitioner No.2-Mohinder Kaur and
she does not return back after a period of six months.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM M-7234 of 2015(O&M)
Date of Decision: November 9, 2015
Pakhar Singh and another
Vs.
State of Punjab and anr.
CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.
Citation: 2016 ALLMR(CRI)JOURNAL287
This petition has been preferred under Section 482 Cr.P.C. for
seeking permission to go abroad by quashing of order dated October 30,
2014, annexure P-3 by virtue of which the Add. Chief Judicial Magistrate,
Hoshiarpur in a private complaint filed in the year 2008 has refused to grant
permission to Pakhar Singh and Mohinder Kaur to go abroad by releasing
their passports disbelieving that Pakhar Singh was cancer patient under
treatment in Sunny Book Health Science Centre, Odette Cancer Centre,
Toronto.
It is pertinent to observe here that during the pendency of this
petition, Pakhar Singh has died and the petition survives only for Mohinder
Kaur.
Brief facts relevant for the decision of the present petition are
that Bakshish Kaur respondent No.2 had filed a private complaint under
Section 406, 420, 494, 120-B IPC on November 28, 2008 in the Court of
Judicial Magistrate Ist Class, Hoshiarpur to the effect that her marriage was
solemnized with Pakhar Singh (now deceased) in the year 1955 in village
Dakhowal. The family members of Pakhar Singh had maltreated her and
turned her out of the matrimonial home as such she remained staying with
her parents till 1960. Pakhar Singh had filed a petition under Section 9 of
the Hindu Marriage Act which was ended in compromise in the year 1961.
On re-union, a female child Kuldeep Kaur was born on October 10, 1962 at
Village Dhakkowal but the complainant respondent No.2 remained at her
parents house as the child was not well. Accused Pakhar Singh left India
for Canada after solemnizing second marriage with Mohinder Kaur in
Gurdwara Jian, Police Station Sadar, District Hoshiarpur. Accused No.3
Avtar Singh, brother of Pakhar Singh and accused No.4 Chinda Singh were
present at the time of the marriage.
As per complaint, no specific date of marriage has been given
but it is mentioned in para 7 thereof that brother of Pakhar Singh had put
shagun and performed ceremony of milni of accused No.1. Pakhar Singh,
deceased petitioner No.1 alongwith petitioner No.2 were married in the year
1971 in Village Jian and had left for Canada by giving false information to
the Canadian Embassy by obtaining Fiancee Visa. Petitioner accused Pakhar
Singh purchased property in the name of his mother but later on, he
transferred the same in the name of Mohinder Kaur by a Will executed by
mother of Pakhar Singh. Dowry articles are in the custody of accused Nos.3
and 4.
The trial Court had summoned the petitioners as accused under
Section 494 IPC read with Section 120-B IPC vide order dated July 10,
2010. They were declared proclaimed offenders having not been served
being residents of Canada. Their property was attached and put to auction
and was sold for consideration of Rs.43 lacs. When the petitioners visited
India in order to get their property released, they were arrested by the police
from the Airport and they remained in judicial custody. Thereafter they
were released on bail. The petitioners were not able to leave India on
account of pendency of the criminal proceedings. The petitioners moved an
application in the year 2014 for permission to go abroad but the said
application had been dismissed vide order dated October 30, 2014. The trial
Court dismissed the application disbelieving that deceased Pakhar Singh was
suffering from Cancer despite the fact that medical evidence was produced
indicating that he was suffering from Multiple Myeloma Lesions in L2 and
L5 vertbral bodies. A document indicating that the deceased had an
appointment with Odette Cancer Centre in Canada was also not believed.
It is pertinent to observe here that the main grievance of the
complainant in the complaint filed in the year 2008 is that in the year 1971,
deceased Pakhar Singh has solemnized second marriage. Date of knowledge
of marriage has not been mentioned by the complainant in the complaint
annexure P-1 but it is an admitted fact that the complaint was filed in the
year 2008 after a period of about 37 years of the alleged offence having been
committed under Section 494 IPC. It is not averred in the complaint that
Mohinder Kaur had knowledge about the first marriage of Pakhar Singh.
Specific day, date and time of first and second marriage has also not been
given.
Counsel for the petitioners has prayed for quashing of order
dated October 30, 2014, claiming that it is an abuse of the process of Court
and in the interest of justice, the petitioners should have been permitted to
leave India.
On the other hand, counsel for respondent No.2 has vehemently
urged that petitioner No.2 had moved a misc. application for leaving India
after the death of her husband Pakhar Singh which has been dismissed by an
interim order dated July 30, 2015, refusing to permit petitioner No.2 to take
the body of her husband to Canada on the ground that there was absolute
probability that she would not return from there especially when there is no
property in her name here and all her relatives are in Canada, therefore, such
permission was declined to her.
I have considered all the facts and circumstances of the case. It
is also not out of place to observe here that the complainant alongwith her
daughter had appeared in the Court in person alongwith their counsel at the
time of hearing to inform this Court that a civil litigation is pending between
the complainant and heirs of Pakhar Singh in RSA No. 37 of 2010 regarding
the property of Pakhar Singh and that in case at this stage Mohinder Kaur is
permitted to leave India she would fraudulently get the property of Pakhar
Singh, situated in Canada, transferred in her name, prejudicing the rights of
the first wife Bakshish Kaur to inherit the property as his wife would not
return back.
It is not out of place to observe here that an attempt had been
made by daughter of Bakshish Kaur by appearing in the Court alongwith an
application for transfer of this case to another Bench with an objective to
brow-beat the Court. She said that she is filing a complaint against this
Court.
Such a practice is deprecated, however, this act of her has been
pardoned showing magnanimity and without having any effect on the merits
of the cases.
After the case had been reserved for orders after hearing
arguments on October 21, 2015, respondent No.2 filed a misc. application
No. 36790 of 2015 seeking permission to place on record her reply. Misc.
application is allowed and reply is taken on record.
I have heard learned counsel for the petitioners as well as
counsel for the complainant and I am of the opinion that the main allegations
under Section 494 IPC were against Pakhar Singh who had allegedly
married Mohinder Kaur in the year 1971. The complaint admittedly had
been filed after a period of about 37 years. There is no specific day, date
and time mentioned in the complaint regarding first or second marriage. The
culpability of petitioner No.2-Mohinder Kaur is to be determined on the
basis of her knowledge of the first marriage besides the establishment of the
factum of second marriage being void. The fact remains that she cannot be
penalized for the delay being caused in the adjudication of the private
complaint which has been filed after a gap of 37 years. The property of
Pakhar Singh is situated in India. Petitioner No.2 Mohinder Kaur has got a
claim in the same. The litigation regarding her property is pending. It is a
settled principle of law that an accused will be deemed to be innocent till
proved guilty but at the same time life and liberty of an accused has not to be
prejudiced on account of any act of the Court. Maintainability of the
complaint after a period of 37 years would certainly be a debatable issue.
This Court is not expressing any opinion regarding the rights of the parties in
the property of Pakhar Singh. Striking a balance between the liberty of
petitioner No.2 and her status of innocence during the pendency of the trial
vis-à-vis the right of complainant to prosecute petitioner No.2 by
establishing the allegations to logical end, I deem it appropriate to permit
petitioner No.2, a lady, to leave India for a period of six months in order to
enable her to visit her home in Canada. It is ordered that petitioner No.2 will
be required to deposit a sum of Rs. 5 lacs with the trial Court and surety
bond for a sum of Rs.1 lac to the satisfaction of the Court to return after six
months which will be determined by the Court. Her passport will be
released to her on furnishing the above said surety and security. It is ordered
that the amount of Rs.5 lacs deposited in the Court would be released to the
complainant besides the right of the State to forfeit the amount in case the
conditions of the bond are violated by petitioner No.2-Mohinder Kaur and
she does not return back after a period of six months.
It is further observed that any interim order passed by this Court
would not effect the disposal of the complaint at final stage.
Allowed in the aforesaid terms setting aside the order dated
October 30, 2014.
November 9, 2015 (M.M.S.BEDI)
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