LexPASHAURA SINGH versus STATE OF PUNJAB & ANR.
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[2009] 15 (ADDL.) S.C.R. 927 PASHAURA SINGH v. STATE OF PUNJAB & ANR. (Criminal Appeal No. 2122 of 2009) NOVEMBER 13, 2009 [TARUN CHATTERJEE AND R.M. LODHA, JJ.] A B Code of Criminal Procedure, 1973 - s. 482 - FIR ulss. 498A, 494 and 506134 /PC - By relative of first wife against the husband and his family members - Alleging second marriage and demand of dowry- Petition uls. 482- Plea of husband that , C second marriage performed after obtaining divorce from his first wife from a foreign court - High Court quashing the FIR as ' regards family members - FIR against husband not quashed - On appeal, held: FIR against husband liable to be quashed - FIR is attended with malafides and actuated with ulterior 0 motive - Allegations under the provisions of /PC not made out - Prosecution was abuse of process of law - Penal Code, 1860 - SS. 498A, 494 and 506134. Penal Code, 1860 - s. 494 - Offence under - Ingredients of - Discussed. · E Appellant married 'K' and went to Canada. He took a judgment of divorce from 'K', from the court in Canada. Coming back to India, he remarried. Brother of 'K' lodged FIR against the appellant and his family members u/ss. 494, 498A and 506/34. Appellant and his family members filed F two separate petitions u/s. 482 Cr.P.C. High Court allowed the petition quashing the FIR as regards the family · members. Petition of the appellant was not allowed. Hence the present appeal. Allowing the appeal, the Court G HELD: 1. The FIR is manifestly attended with malafides and ac,tuated with ulterior motive. The prosecution of the appellant is not at all legitimate, rather it is frivolous, vexatious, unwarranted and abuse of process. The 927 H" 928 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R. A appellant has made out a case for quashing the first information report and all subsequent proceedings pursuant thereto. [Para 11] (932-D-E] 2. The observation of the High Court, that the appellant married second time, although his marriage has B · not been dis~olved, is ex-facie contrary to record. The certificate of divorce issued by the New Westminster Registry, Supreme Court of British Columbia shows that the marriage of the appellant and 'K' stood dissolved on February' 8, 20.01. This fact is noticed in the order dated C April 29, 20.0.4 whereby the High Court quashed the F.l.R. and the subsequent criminal proceedings against the family members 'of the appellant. In the affidavit filed by Deputy Superintendent of Police in respo1nse to the petition filed by the appellant under Section 482 Cr.P.C., before the High Court, it has been admitted that during D investigation on March 14, 2002, photocopy of divorce certificate purporting to have been issued by the Supreme Court of British Columbia was produced. [Para 7] [931-A- D] 3. Section 494 IPC, inter-alia, requires the following E 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. In the present case, the appellant's first marriage was not subsisting when he is said to have . F married second time. Affidavit filed by the first wife of appellant states that she was not aware of the divorce proceedings. 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 G the FIR therefore, ingredients of the offence under Section 494 IPC are not satisfied. [Para 8] [931-D-G] 1 · 4. Insofar as offence under Section 498-A IPC is concerned, the High Court in its earlier order in the petition fited by the family members, observed that no demand of ~ dowry has been made by the petitioners in the FIR nor was . . PASHAURA SINGH v. STATE OF PUNJAB & ANR. 929 __ J there any specific entrustment, as alleged in the FIR of A _,, dowry articles to the petitioners. Moreover, in the affidavit filed by the first wife, there is not a word about demand of dowry or harassment on account of dowry by the appellant. [Para 9] [931-H; 932-A-D] CRIMINAL AP PELLA TE JURISDICTION: Criminal Appeal B Nos. 2122 of 2009. ~-_>- From the Judgment & Order dated 24.05.2006 of the High - Court of Punjab & Haryana at Chandigarh in Criminal Misc. No. 8526 of 2005. Sushil Kumar Jain, Puneet Jain, Eshila Barua, Ms.
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