Nafr High Court
Case Details
1 / 16 2024:CGHC:39545-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 556 of 2022 1 - Sheikh Nizamuddin S/o Sheikh Imamunddin aged about 64 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. 2 - Sheikh Javed S/o Sheikh Nizamuddin aged about 35 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. 3 - Sheikh Shakeb S/o Sheikh Nizamuddin aged about t 38 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. 4 - Shahin Khatoon W/o Sheikh Shakeb aged about 30 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. 5 - Sayaro Bano W/o Nzamuddin aged about 57 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh.. 6 - Saniya Khan W/o Kaushad Khan aged about 30 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2024.10.08 11:12:04 +0530 Chhattisgarh. 7 - Kaushad Khan S/o Mohd. Peer , Nizamuddin aged about 30 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. 8 - Sheikh Nasharuddin S/o Sheikh Imamuddin aged about 41 years Resident of at Village Chirmiri Road, Nagpur, Police Station Podi, District Koriya Chhattisgarh. ... Petitioners 2 / 16 versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Surajpur, District Surajpur Chhattisgarh.
Legal Reasoning
2 - Smt. Seiyada Tabassum W/o Sheikh Javed, D/o Sheikh Mohd. Nasim aged about 28 years Caste Musalman, R/o Village Ward No. 14, Maanpur, Surajpur , Police Station and Tahsil Surajpur District Surajpur Chhattisgarh. Cause-title taken from Case Information System ... Respondents For Petitioners : Mr. Sunil Verma, Advocate For Respondent No.1/State : Mr. Hariom Rai, Panel Lawyer For Respondent No.2/complainant : Mr. Surfaraj Khan, Advocate Hon'ble Shri Hon'ble Shri Ramesh Sinha, Bibhu Datta Guru Chief Justice , Judge
Decision
Order on Board Per Ramesh Sinha , Chief Justice 07 . 10 .2024 1. Heard Mr. Sunil Verma, learned counsel for the petitioners. Also heard Mr. Hariom Rai, learned Panel Lawyer, appearing for respondent No.1/State and Mr. Surfaraj Khan, learned counsel appearing for respondent No.2 / complainant. 2. The petitioners have filed the aforesaid petitions under Section 482 of the CrPC for quashment of FIR bearing Crime No. 461/2021 registered at Police Station – Surajpur, District – Surajpur and Criminal Case No. 105/2021 pending before Judicial 3 / 16 Magistrate First Class, Surajpur, District – Surajpur for the offence punishable under Sections 498-A read with Section 34 of IPC. 3. Brief facts of the case are that the complainant / respondent No.2, namely, Smt. Seiyada Tabassum of Village Surajpur, District Surajpur has filed a written complaint before SHO of Police Station, Surajpur on 03.10.2021 against the petitioners, alleging therein that she got married with respondent No.2, namely Sheikh Javed on 31.10.2019 as per muslim customs at Ward N. 14, Manpur. After marriage, she was took to her in-laws house at Nagpur, where she continued to live with her husband (petitioner No.2), father-in-law Sheikh Nizamuddin (petitioner No.1), mother- in-law Sayaro Bano (petitioner No.5), brother-in-law (jeth) Sheikh Shakeb (petitioner No.3), sister-in-law (jethani) Shahin Khatoon (petitioner No.4) and Saniya Khan (petitioner No.6) is sister of her husband and Kaushad Khan (petitioner No.7) is husband of Saniya Khan (petitioner No.6) and Sheikh Nasharuddin Khan (petitioner No.8) is uncle of her husband. It is further alleged that Saniya Khan (petitioner No.6), Kaushad Khan (petitioner No.7) and Sheikh Nasharuddin Khan (petitioner No.8), lived at Haldibadi, Chirmiri which is 10 km away from Nagpur and they used to come to their house every day and have full interference in the domestic matter. After one week of marriage, all the petitioners started blaming the complainant that her parents have not given any amount, her husband wants to do business and as her family members are financially capable, they asked to bring 4 / 16 Rs.10,00,000/- from her father and if they did not receive the amount, they will not keep her in their house. On the basis of the report of complainant, the prosecution agency has made counseling and after conducting counseling proceeding, the FIR was registered in Crime No. 0461/2021 for offence under Sections 498-A read with Section 34 of IPC against the present petitioners and during the investigation statements of witnesses have been recorded and after completing the investigation, the prosecution has filed charge sheet before Judicial Magistrate First Class, Surajpur, District – Surajpur (C.G.). After filing of the charge- sheet the learned JMFC has registered the case in Criminal Case No. 105/2021 and the case was fixed for argument before charge. Hence these petitions. 4. Learned counsel, appearing for the petitioners submitted that the allegations made against the petitioners are false, afterthought and fabricated and the complainant has misused the legal rights guaranteed to her by the legal system by maliciously and wickedly implicating the present petitioners in a false crime. The false implication of the petitioners is evident from the fact that as per the FIR itself, wherein no specific allegation has been made against the present petitioners but a vague and omnibus one and due to this reason, in the absence of any continuous torture or allegation to show and substantiate the claim, the prosecution of the petitioners is wholly unjustified. He further submitted that the FIR has been registered against the petitioners on the basis of a 5 / 16 simple dispute between the husband Sheikh Javed and complainant, but there are no ingredients of such alleged offences. There is no material available on record against the petitioners as alleged offences. 5. On the other hand, Mr. Hariom Rai, learned Panel Lawyer, appearing for respondent No.1/State, would submit that after due investigation the petitioners have been charge-sheeted for the aforesaid offences and prima-facie material collected are sufficient to put the petitioners at trial and they are standing trial also and considering the material available on record, it cannot be held that no prima-facie case against the petitioners for standing trial is made out. He would further submit that jurisdiction of this Court under Section 482 of the CrPC is extremely limited as FIR and charge-sheet cannot be quashed particularly when there is sufficient evidence available on record to put the accused persons to trial. He would rely upon the judgment of the Supreme Court in the matter of Taramani Parakh v. State of Madhya Pradesh and others1 to buttress his submission that allegation of cruelty is question of fact to be established during trial, as such, the petition deserves to be dismissed. 6. Mr. Surfaraj Khan, learned counsel for respondent No.2/complainant, would submit that after due investigation, the jurisdictional police has submitted charge-sheet against the petitioners in which there are serious allegations against the 1 (2015) 11 SCC 260 6 / 16 petitioners for treating respondent No.2 with cruelty. He would further submit that all submissions raised on behalf of the petitioners relate to question of fact, that can be considered during the course of trial and that cannot be considered at this stage and that too in proceeding under Section 482 CrPC as all ingredients of the aforesaid offences are available to put the petitioners to trial, as such, it is the case where the petition deserves to be dismissed. 7. We have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. As the charges have not been framed against the petitioners and the matter being matrimonial in nature and as the parties were agreed to settle their dispute and as per their submission that there were chances to compromise between the parties, the matter was referred to Mediation Centre of this Court, but it is stated that mediation has been failed. 9. At the outset, it would be appropriate to consider the scope of interference in charge-sheet filed by the police against accused in extraordinary jurisdiction under Section 482 of the CrPC. 10. In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others2, the Supreme Court has held that the accused can approach the High Court either under Section 482 of the CrPC or under Article 227 of the Constitution of 2 (1998) 5 SCC 749 7 / 16 India to have the proceeding quashed against him when the complaint does not make out any case against him. 11. The Supreme Court in the mater of State of Haryana and others v. Bhajan Lal and others3 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: - “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 3 1992 Supp (1) SCC 335 8 / 16 (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the 9 / 16 extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 12. The principle of law laid down in Bhajan Lal’s case (supra) has been followed recently by the Supreme Court in the matters of Google India Private Limited v. Visaka Industries4, Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another 5 and Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others6. The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal’s case (supra) that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and “that too in the rarest of rare cases” as indicated in paragraph 103 therein of the report. 13. Having noticed the scope of interference by this Court in the petition relating to quashment of FIR/charge-sheet, reverting to the facts of the present case, it is quite vivid that in the impugned charge-sheet, eight petitioners including the husband of the complainant/ respondent No.2 have been charged for offences under Sections 498-A read with Section 34 of the IPC. 14. Chapter XXA of the IPC deals with offence of cruelty by husband or relatives of husband. Section 498A of the IPC defines the offence of cruelty as under:- “498A. Husband or relative of husband of a woman 4 5 6 (2020) 4 SCC 162 (2020) 13 SCC 435 (2019) 18 SCC 191 10 / 16 subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 15. A careful perusal of the aforesaid provision would show that in order to establish offence under Section 498A of the IPC, the prosecution must establish, (i) That, woman must be married; (ii) She has been subjected to cruelty or harassment and (iii) Such cruelty or harassment must have been shown either by husband of the woman or by relative of her husband. 16. The word 'cruelty' within the meaning of Section 498A of the IPC has been explained in Explanation appended to Section 498A of the IPC. It consists of two clauses namely clause (a) and clause (b). To attract Section 498A of the IPC, it must be established that cruelty or harassment to the wife to coerce her or cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract Section 498A of the IPC. Explanation (b) to Section 498A of the IPC contemplates 11 / 16 harassment of woman to coerce or any relation of her to meet any unlawful demand for any property or valuable security. The complainant if wants to come within the ambit of Explanation (b) to Section 498A of the IPC, she can succeed if it is proved that there was an unlawful demand by the husband or any of his relatives with respect to money or of some valuable security. 17. The Supreme Court in the matter of Priya Vrat Singh and others v. Shyam Ji Sahai7 considered the issue of delay in lodging the complaint as well as role that has been ascribed to the accused therein and quashed the complaint holding the delay of two years in lodging FIR to be fatal and further held that no role has been ascribed to the petitioner/accused therein. It was observed as under:- “8. Further it is pointed out that the allegation of alleged demand for dowry was made for the first time in December, 1994. In the complaint filed, the allegation is that the dowry torture was made some times in 1992. It has not been explained as to why for more than two years no action was taken. 9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother in law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6.12.1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent No.1.” 18. Similarly, in the matter of Sunder Babu and others v. State of Tamil Nadu8 delay in filing complaint against accused therein was 7 8 (2008) 8 SCC 232 (2009) 14 SCC 244 12 / 16 taken note of by their Lordships of the Supreme Court holding the case to be covered by Category Seven of para-102 highlighted in Bhajan Lal's case (supra), the prosecution for offence under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act was quashed. 19. Similarly, in the matter of Geeta Mehrotra and Another v. State of Uttar Pradesh and Another 9 , the Supreme Court held that casual reference to the family member of the husband in FIR as co-accused particularly when there is no specific allegation and complaint did not disclose their active involvement. It was held that cognizance of matter against them for offence under Sections 498-A, 323, 504 and 506 of the IPC would not be justified as cognizance would result in abuse of judicial process. 20. In the matter of K. Subba Rao and others v. State of Telangana represented by its Secretary, Department of Home and others10 their Lordships of the Supreme Court delineated the duty of the criminal Courts while proceeding against relatives of victim's husband and held that the Court should be careful in proceeding against distant relatives in crime pertaining to matrimonial disputes and dowry deaths and further held that relatives of husband should not be roped in on the basis of omnibus allegations, unless specific instances of their involvement in offences are made out. 21. Recently, in the matter of Rashmi Chopra v. State of Uttar 9 (2012) 10 SCC 741 10 (2018) 14 SCC 452 13 / 16 Pradesh and Another 11 it has been held by their Lordships of the Supreme Court relying upon the principle of law laid down in Bhajan Lal's case (supra) that criminal proceedings can be allowed to proceed only when a prima facie offence is disclosed and further held that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment and the High Court should not hesitate in exercising the jurisdiction to quash the proceedings if the proceedings deserve to be quashed in line of parameters laid down by the Supreme Court in Bhajan Lal's case (supra) and further held that in absence of specific allegation regarding anyone of the accused except common and general allegations against everyone, no offence under Section 498A IPC is made out and quashed the charges for offence under Section 498A of the IPC being covered by category seven as enumerated in Bhajan Lal's case (supra) by holding as under:- “24. Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by 11 2019 SCC OnLine SC 620 14 / 16 Nayan Chopra. 25. There being no specific allegation regarding any one of the applicants except common general allegation against everyone i.e. “they started harassing the daughter of the applicant demanding additional dowry of one crore” and the fact that all relatives of the husband, namely, father, mother, brother, mother’s sister and husband of mother’s sister have been roped in clearly indicate that application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants.....” 22. Having noticed the legal position qua quashing the FIR and charge-sheet, the question would be whether taking the contents of the FIR and charge-sheet as it is, offence under Sections 498A read with Section 34 of the IPC is made out against the petitioners ? 23. It is the case of the prosecution that marriage of respondent No.2 was solemnized with Shekh Javed (petitioner No.2) on 31.10.2019 with the Muslim rites and rituals. From perusal of the complaint so made, the complainant has only made omnibus and general allegations against the petitioners without being full particulars about date and place that all the petitioners including the husband treated her with cruelty for not bringing sufficient dowry at the time of marriage. There is no specific allegation regarding anyone of the petitioners except common and general allegations against all the petitioners that they have demanded cash amount and household articles. 24. Considering the submissions of the learned counsel for the parties, material available on record, also considering the fact that no specific allegations have been made and only bald, omnibus 15 / 16 and general allegations have been made against the petitioners, we are of the considered opinion that prima-facie no offences under Sections Sections 498-A read with Section 34 of the IPC are made out for prosecuting the petitioners and the prosecution against them for the aforesaid offences is covered by Category 1, 3 & 7 of para-102 of the judgment rendered by the Supreme Court in Bhajan Lal's case (supra) and as such, liable to be quashed. 25. As a fallout and consequence of the above-stated legal analysis, Criminal Case No. 105/2021 pending in the Court of Judicial Magistrate First Class, Surajpur arising out of Crime No. 0461/2021 registered at Police Station- Surajpur, District - Surajpur for offence under Sections 498-A read with Section 34 of the IPC is hereby quashed to the extent of petitioners i.e. Sheikh Nizamuddin (petitioner No.1), brother-in-law (jeth) Sheikh Shakeb (petitioner No.3), sister-in-law (jethani) Shahin Khatoon (petitioner No.4), mother-in-law Sayaro Bano (petitioner No.5), Saniya Khan (petitioner No.6) sister-in-law (nanad) and Kaushad Khan (petitioner No.7) brother-in-law (nandoi) and Sheikh Nasharuddin Khan (petitioner No.8). 26. Prosecution against husband – Sheikh Javed (petitioner No.2) shall continue. 27. It is made clear that all the observations made in this order are for the purpose of deciding the petition filed by the petitioners hereinabove and this Court has not expressed any opinion on merits of the matter and concerned trial Court will decide criminal 16 / 16 case pending against husband – Sheikh Javed (petitioner No.2) strictly in accordance with law without being influenced by any of these observations made hereinabove and shall conclude the trial as expeditiously as possible preferably within a period of six months from today. 28. The petition under Section 482 CrPC is allowed to the extent indicated hereinabove. No cost(s). Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra