High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.04.2007CORAMTHE HONOURABLE MR. JUSTICE K.N. BASHACrl.O.P.No.32084 of 2004& Crl.M.P.Nos.10162 and 10163 of 20041. A. Yousuf Khan2. Ashraf Khan3. Sakhirunnisa4. A.Ajmal Khan.. Petitioner/Accused 1 to 4Vs.1. Inspector of Police,(W-3) All Women Police Station, Kothawalchavadi Police Station, Chennai.2. The Inspector of Police, W-32 All Women Police Station, Madipakkam, Chennai – 600 091. (Impleaded as per the order in M.P.No.222 of 2007 dated 16.03.2007).. Respondents* * *Prayer : Criminal Original Petition filed under section 482 of Cr.P.C. tocall for the entire records in Crime No.16 of 2002 on the file of theInspector of Police, Amended as per ;order of Court dated 16.3.2007 inCrl.M.P.No. 223/07 W-32 All Women Police Station, Madipakkam PoliceStation, Chennai – 91, and quash the same.* * *For Petitioner:: Mr.Habibullah Basha, Senior Counsel for M/s.H.ShameemFor Respondents:: Mr.P. Kumaresan Additional Public ProsecutorO R D E RThe petitioners, who have been arrayed as A-1 to A-4 in this case,have come forward with this petition seeking for the relief of quashing https://hcservices.ecourts.gov.in/hcservices/ the First Information Report pending against them for the alleged offenceunder Sections 498-A I.P.C. and Section 4 of Dowry Prohibition Act, inCrime No.16 of 2002 on the file of the Inspector of Police, W-32, AllWomen Police Station, Madipakkam, Chennai.2. The first petitioner is the husband, second petitioner is thefather-in-law, third petitioner is the mother-in-law and the fourthpetitioner is the brother-in-law of the defacto complainant.3. The marriage between the first petitioner and the defactocomplainant took place on 05.05.2002 at Cochin. The alleged occurrence inthis case said to have been taken place on 29.08.2002 and the complainantwas lodged on 08.09.2002. The allegation against the petitioners, as perthe complaint, is that the petitioners said to have ill-treated thedefacto complainant and demanded dowry. It is also pertinent to notebefore proceedings to consider the contentions put forward by the learnedsenior counsel for the petitioners that a joint memo was filed by thepetitioners and the defacto complainant in the anticipatory bail filed bythe petitioners before the learned Principal Sessions Judge, Chennai, inCrl.M.P.No.987 of 2002 and Crl.M.P.No.10041 of 2002 stating that all thejewellery were returned to the defacto complainant and the petitioner alsoundertaken to pay an amount of Rs.1,00,000/- and the petitioners have beengranted anticipatory bail. A perusal of the records further disclosesthat the defacto complainant has given yet another complaint on the basisof the similar allegations on 03.12.2002 and the case was registered inCrime No.19 of 2002 by the Inspector of Police, All Women Police Station,Neelangarai, Chennai, under Section 498-A I.P.C. and Section 4 of DowryProhibition Act. The investigation was proceeded in this Crime Number andultimately the charge sheet was filed and the same was taken on file bythe learned Judicial Magistrate, Alandur, in C.C.No.325 of 2004. Thepetitioners thereafter filed a quashing petition before this Court inCrl.O.P.No.32083 of 2004 and the same was allowed by this Court by theorder dated 11.10.2004 quashing the proceedings initiated against thepetitioners in C.C.No.325 of 2004 on the file of the learned JudicialMagistrate, Alandur. Therefore, it is seen that the first complaintregistered in Crime No.16 of 2002 on the file the Inspector of Police, W-32, All Women Police Station, Madipakkam Police Station, Chennai, has beensimply kept pending and during the pendency of such first complaint, thesecond complaint was registered, investigated and taken on file inC.C.No.325 of 2004 by the learned Judicial Magistrate, Alandur, and suchproceedings quashed by this Court, as stated above.4. Mr.Habibullah Basha, learned senior counsel for the petitionersvehemently contended that the first information report registered on thebasis of the complaint given by the defacto complainant is liable to bequashed and made the following submissions :i.The defacto complainant having filed a joint memo along with thepetitioners in the anticipatory bail and stated that she had https://hcservices.ecourts.gov.in/hcservices/ received all the jewellery and the petitioner also agreed toreturn a sum of Rs.1,00,000/- and thereafter deliberately filed asecond complaint by adding certain more allegations only with aview to harass the petitioners and the conduct of the defactocomplainant clearly shows that the first complaint is also basedon false allegations.ii.The defacto complainant, having accepted and aggrieved forcompromise, is not entitled to go back to her earlierunderstandings and rightly, this Court quashed the proceedingsinitiated on the second complaint in Crl.O.P.No.32083 of 2004.iii.The findings of this Court in Crl.O.P.No.23083 of 2004 clearlyshows that the first complaint (challenged in this petition) givenby the defacto complainant is totally false and as such the sameis liable to be quashed.iv.The petitioners not only returned the jewellery but also paid asum of Rs.1,00,000/-, as admitted by the defacto complainant andthis Court observed in the order dated 11.10.2004 inCrl.O.P.No.23083 of 2004 that the defacto complainant suppressedthe signing of joint memo and also the pendency of the firstcomplainant (challenged in this petition) and as such this Courtquashed the subsequent proceedings initiated on the basis of thesecond complaint mainly on the ground of suppression of materialfacts.v.The defacto complainant also filed a maintenance case in M.C.No.26of 2003 before the Judicial I Class Magistrate No.II, Kochi, andin the order dated 14.02.2006 it is specifically mentioned thatthe defacto complainant has stated that the first F.I.R.(challenged in this petition) was in Tamil and hence she could notunderstand it and the learned Magistrate also held suchexplanation of the defacto complainant is false and the defactocomplainant was actually harassing the first petitioner in allmanner and further held that the defacto complainant is nottrustworthy enough and she is capable of giving calculated orfabricated versions in accordance with needs.vi.The conduct of the defacto complainant, who has preferred twocomplaints on the basis of the one and the same allegations,clearly shows that the defacto complainant is not approaching thepolice or the Court with clean hands and her conduct of preferringtwo complaints amount to a clear case of abuse of process of lawand Court and therefore, the first complaint in this matter isliable to be quashed.5. Per contra, learned Additional Public Prosecutor contended thatthe first information report in this case contains a specific allegationof cruelty and demand of dowry against the petitioners herein and as suchthe same is not liable to be quashed, at the same time, the learnedAdditional Public Prosecutor fairly submitted that during the pendency offirst complaint in this case in Crime No.16 of 2002 on the file of theInspector of Police, W-32, All Women Police Station, Madipakkam, Chennai, https://hcservices.ecourts.gov.in/hcservices/ the defacto complainant preferred the second complaint before theInspector of Police, All Women Police Station, Neelangarai, and the samewas registered in Crime No.19 of 2002.6. I have carefully considered the rival contentions put forward byeither side and also perused the F.I.R. copy in this matter and othermaterials available on record including the order of this Court inCrl.O.P.No.32083 of 2004 dated 11.10.2004 and the order copy of thelearned Judicial I Class Magistrate No.II, Kochi, in M.C.No.26 of 2003dated 14.02.2006.7. This is an unusual case wherein, the defacto complainant haspreferred two complaints against the petitioners for the alleged offencesunder Section 498-A I.P.C. and Section 4 of Dowry Prohibition Act. Thefirst complaint (challenged in this petition) registered by the secondrespondent police in Crime No.16 of 2002 for the alleged offence underSections 498-A I.P.C. and under Section 4 of Dowry Prohibition Act. Thesecond complaint was preferred before the Neelangarai Police and it wasregistered in Crime No.19 of 2002. It is not disputed that on the basisof the second complaint given by the defacto complainant on 03.12.2002before the Neelangarai Police Station registered in Crime No.19 of 2002 isresulting in filing of the final report and thereafter taken on file bythe learned Magistrate in C.C.No.325 of 2004. It is also evident that thepetitioner challenged that proceedings initiated on the basis of thesecond complaint preferred by the defacto complainant and this Courtquashed the proceedings pending in C.C.No.325 of 2004 on the file of thelearned Magistrate, Alandur, by the order dated 11.10.2004 inCrl.O.P.No.32083 of 2004. This Court while passing the above said orderobserved as follows :"8. After careful consideration of the rival submissionsmade by both the parties, the court is of the opinion thatC.C.No.325 of 2004 pending on the file of JudicialMagistrate, Alandur, has got to be quashed. Admittedly, themarriage between the first petitioner anda the complainanttook place on 5.5.2002 at Chochin under Muslim Law. Aftertheir marriage, they came to Chennai. Due to somedisturbances in the matrimony life, the first complaint cameto be given by the complaint on 8.9.2002 before theKothawalchavadi Police Station and the same was registeredin Crime No.16/02 on 11.9.2002. A perusal of the FirstInformation Report did not reveal any incident or as to theperiod of cruelty etc. But within a short span of time,during December 2002, she has given second complaint atNeelankarai Police Station and the said police registered acase in Crime No.19/02 on 3.12.2002. A perusal of the firstcomplaint dated 11.09.2002 and the second complaint dated3.12.2002 would clearly reveal that all new facts have beenbrought forth in the second complaint in order to attract https://hcservices.ecourts.gov.in/hcservices/ the provisions."8. It is also pertinent to note that in the very same order, thisCourt further observed and quashed the proceedings as follows :"As the complainant suppressed earlier proceedings and memofiled between the parties, this Court without any hesitationis of the opinion that the proceedings pending in C.C.No.325of 2004 has got to be quashed. Accordingly, the same isquashed."9. Mr.Habibullah Basha, learned senior counsel has rightly placedreliance on the above said findings of this Court. The learned seniorcounsel further rightly pointed out the findings and observations by thelearned Judicial I Class Magistrate No.II, Kochi, in M.C.No.26 of 2003 bythe judgment dated 14.02.2006 in the maintenance case filed by the defactocomplainant and the respective findings are incorporated hereunder :".... Petitioner explains that the first FIR was in Tamil andhence she could not understand it. That version also isfalse, because she forwarded Ext.D5 letter to the principal ofrespondents college with a copy of the FIR, and stated in theletter that the FIR will reveal the harassment of respondent.It makes clear that First FIR was well understood to her.Therefore it is proved beyond doubt, that actually thepetitioner harassed the respondent in all manner.12. All the above said evidence shows that the marriagewas broken down due to the fault of the petitioner and sheeven harassed the respondent much. Therefore, the petitioneris not trustworthy enough and is capable of giving calculatedor fabricated versions in accordance with needs."10. The above said findings of the learned Magistrate makes itcrystal clear that the defacto complainant only with a view to harass andhumiliate the petitioners filed two complaints on the similar allegationsand the defacto complainant also went to the extent of suppressing thefirst complaint (challenged in this petition) and preferred the secondcomplaint.11. The Hon'ble Apex Court has categorically held in SUSHIL KUKMARSHARMA V. UNION OF INDIA reported in 2005 SCC (Cri.) 1473 that,"The object of Section 498-A IPC is to strike at the roots ofdowry menace. But by misuse of the said provision a newlegal terrorism can be unleashed. The provision is intendedto be used as a shield and not as a assassin's weapon. Ifthe cry of "wolf" is made too often as a prank, assistanceand protection may not be available when the actual "wolf"appears. Many instance have come to light where the https://hcservices.ecourts.gov.in/hcservices/ complaints are not bona fide and have been filed with obliquemotive."12. The instant case is a concrete example for such misuse and abuseof the provision under Section 498-A I.P.C. As rightly pointed out by thelearned senior counsel for the petitioners, the defacto complainantdeliberately suppressed earlier complaint given by her which is nowchallenged in this petition and preferred a second complaint. This Courtquashed the proceedings initiated on the second complaint, as alreadystated, mainly on the ground of suppression of material facts. It is alsorelevant to note that the complaint under challenge in this petition isalso kept pending without any investigation at all as the defactocomplainant preferred the second complaint and only that complaint wasinvestigated and ultimately charge sheet filed. The sequence of events inthis case and the conduct of the defacto complainant makes it crystalclear that the complaints preferred by the defacato complainant includingthe first complaint are motivated one and the proceedings initiated areonly with an ulterior motive for wreaking vengeance against thepetitioners herein and as such the complaint is liable to be quashed inthis case.13. The Hon'ble Apex Court in STATE OF HARYANA V. BHAJAN LAL reportedin 1992 Supp. (1) SCC 335 formulated certain guidelines for quashing thefirst information report or complaint and one of the guidelines stipulatedby the Hon'ble Apex Court and in that decision as guideline No.7 isincorporated hereunder :"(7) Where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding is maliciouslyinstituted with an ulterior motive for wreaking vengeanceon the accused and with a view to spite him due to privateand personal grudge."14. This Court has no hesitation to hold that the present complaintin this case squarrely comes within the above said guideline stipulated bythe Hon'ble Apex Court for quashing the F.I.R. In view of the sequence ofevents, viz., suppression of present first complaint, preferring secondcomplaint, findings of this Court regarding suppression of material factsby the defacto complainant in the order dated 11.10.2004 inCrl.O.P.No.23083 of 2004 and the findings of the learned Judicial M ClassMagistrate No.II, Kochi, this present complaint is liable to be quashed.15. For the aforesaid reasons, the F.I.R. pending in Crime No.16 of2002 on the file of the Inspector of Police, W-32, All Women PoliceStation, Madipakkam, Chennai – 91, is hereby quashed. https://hcservices.ecourts.gov.in/hcservices/

16. This petition is ordered accordingly. Consequently, connectedMiscellaneous Petitions are closed.ggSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Inspector of Police, All Women Police Station, Kothawalchavadi Police Station, Chennai.2. The Inspector of Police, W-32 All Women Police Station, Madipakkam, Chennai – 600 091.3. The Public Prosecutor, Madras High Court, Madras.4. The Judicial Ist Class Magistrate, No II, Kochi.+ 2 cc to Mr. H. Shameem, Advocate sR 22389PV (co)sg 29/5/07 Crl.O.P.No.32084 of 2004 DATED : 09.04.2007