1. Abid Hussain, aged about 48 years, son of Jumman Mian 2. Saba Ahmad v. 1. The State
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 953 of 2022 1. Abid Hussain, aged about 48 years, son of Jumman Mian 2. Saba Ahmad @ Sabba Ahmad, aged about 26 years, son of Abid Hussain 3. Rukaiyya Khatoon, aged about 25 years, D/o Abid Hussain, 4. Salma Khatoon, aged about 48 years, wife of Abid Hussain 5. Md. Sajid Hussain @ Sajid Ansari, aged about 35 years, son of Abid Hussain 6. Danish Hussain @ Danish Raza, aged about 20 years, son of Abid Hussain All are residents of Barkat Nagar, Mahtodih, P.O. –Chaube, P.S. – Chalkusha, District –Hazaribagh. .... Petitioners Versus 1. The State of Jharkhand 2. Imamuddin, son of Late Alijan Mian, resident at + P.O. –Shiladih, P.S. –Gorhar, District –Hazaribagh. …. Opp. Parties P R E S E N T
Legal Reasoning
statement of the inquiry witnesses found prima facie case for the offences as already indicated above and ordered for issuance of summons against the petitioners. It is next submitted by the learned counsel for the petitioners that the petitioner no.3 is the daughter-in-law of the complainant and prior to this case, the petitioner no.3 filed Complaint Case No. 2057 of 2019 in which the learned Magistrate found prima facie case for the offences punishable under Section 498A of the Indian Penal Code and under Section 3 and 4 of the Dowry Prohibition Act. The petitioner no.3 has also filed a maintenance case under Section 125 of the Cr.P.C. vide Original Maintenance Case No. 435 of 2019 in the Court of Additional Family Court, Dhanbad against the son of the complainant, hence it is submitted that this is totally a malicious prosecution and this case has been instituted for wrecking vengeance. 5. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Krishna Lal Chawla & Ors. Vs. State of U.P. and Anr., passed in Criminal Appeal No. 283 of 2021 dated 08.03.2021, para -14 of which reads as under:- “14. Similarly, the power conferred on the Magistrate under Section 202 Cr.P.C. to postpone the issue of 3 Cr.M.P. No.953 of 2022 for process pursuant to a private complaint also provides an frivolous important avenue complaints that must be fully exercised. A four-Judge Bench of this Court has eloquently expounded on this in Chandra Deo Singh Vs. Prokash Chandra Bose & Anr., AIR 1963 SC 1430:” filtering out of It is submitted that as the allegations made in the complaint, smacking of an instance of frivolous litigation, hence the same be quashed. 6. The learned counsel for the petitioners next relies upon the Judgment of Hon’ble Supreme Court of India in the case of Mahmood Ali & Ors. Vs. State of U.P. & Ors., passed in Criminal Appeal No. 2341 of 2023 dated 08.08.2023 and submits that this case comes under the clause 7 of the paragraph-102 of the case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604, which is to the effect that 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, the same is to be quashed and set aside. Therefore, it is submitted that the prayer made in this criminal miscellaneous petition be allowed. 7. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer of the petitioners and it is submitted by the learned Addl. P.P. and the learned counsel for the opposite party no.2 that the complainant in his solemn affirmation as 4 Cr.M.P. No.953 of 2022 well as the inquiry witnesses examined before the Magistrate, categorically shows that there is ample material in the record to suggest that the petitioners have committed the offences punishable under Section 149/341/323/354/379/427/506 of the Indian Penal Code as they being members of unlawful assembly being armed with deadly weapons in prosecution of common object of the assembly wrongfully restrained the complainant and his wife, caused hurt to them, outraged the modesty of the wife of the complainant, committed theft of Rs.50,000/- cash and some jewelries kept in a box in the house of the complainant, committed theft of a gold chain and also committed mischief by vandalizing the house of the complainant and also criminally intimidated him and his wife. Hence, no illegality has been committed by the learned Magistrate in finding prima facie case for the offences punishable under Section 149/341/323/354/379/427/506 of the Indian Penal Code. It is next submitted that the facts of Krishna Lal Chawla & Ors. Vs. State of U.P. and Anr. and Mahmood Ali & Ors. Vs. State of U.P. & Ors. (supra) are entirely different from the facts of this case. It is then submitted that certainly the Magistrate has to scrutinize under Section 202 Cr.P.C. the allegations made in the complaint carefully with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. It is then submitted that it is 5 Cr.M.P. No.953 of 2022 also a settled principle of law that a legitimate prosecution cannot be stifled in exercise of the power under Section 482 Cr.P.C. It is next submitted that there is direct and specific allegation against the petitioners of being member of an unlawful assembly in prosecution of common object of the assembly, wrongfully restraining the complainant and his wife, causing hurt to them by assaulting them with lathi and danda, outraging the modesty of the wife of the complainant, committing theft of Rs.50,000/- cash and some jewelries kept in a box in the house of the complainant, committing theft of a gold chain and also committed mischief by vandalizing the house of the complainant and also criminally intimidating him and his wife and here in this case, not only the averments made in the complaint but the statement of the complainant under solemn affirmation and the statement of the three witnesses examined by him in the inquiry establishes the allegations against the petitioners. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is settled principle of law that in exercise of power under Section 482 Cr.P.C. a legitimate prosecution cannot be stifled, as has been held by the Hon’ble Supreme Court of India in the case of 6 Cr.M.P. No.953 of 2022 Monica Kumar (Dr.) and another v. State of U.P. and others, reported in (2008) 8 SCC 781. The undisputed fact remains that there is direct and specific allegation against the petitioners of being members of an unlawful assembly, in prosecution of common object of the assembly wrongfully restraining the complainant and his wife, causing hurt to them by assaulting them with lathi and danda, outraging the modesty of the wife of the complainant, committing theft of Rs.50,000/- cash and some jewelries kept in a box in the house of the complainant, committing theft of a gold chain and also committed mischief by vandalizing the house of the complainant and also criminally intimidating him and his wife. The only contention of the petitioners is that since the petitioner no.3 is the daughter-in-law of the complainant, hence for wreaking vengeance this false case has been foisted. 9. It is pertinent to mention here that enmity is always a double edged weapon. If there is enmity, there is chance of false implication and if there is enmity, that could be a motive for commission of the crime by the petitioners also. Therefore, this Court is of the considered view that as a rule of universal application it cannot be said that in all cases, if the accused of a case instituted a case against the victim in respect of a subsequent occurrence, the same is to be quashed on that ground itself that the accused of the second case is the victim of the case. Nor it can be said as a rule of universal 7 Cr.M.P. No.953 of 2022 application that is an accused of a case institutes a case against the victim for a subsequent occurrence, such case has been instituted by the accused of the earlier instituted case is a malicious one or has been instituted for wreaking vengeance. 10. Thus, in the facts of this case, as undisputedly the Protest-cum-Complaint Petition, the statement on solemn affirmation of the complainant and the statement of the inquiry witnesses without doubt, discloses the commission of the offences punishable under Section 149/341/323/354/ 379/427/506 of the Indian Penal Code; therefore, this Court is not inclined to quash the entire criminal proceeding on the ground that the same has been instituted for wreaking vengeance and being a malicious prosecution only because of the reason that the petitioner no.3 has instituted a case earlier to the case instituted by the complainant and that the petitioner no.3 is the daughter-in-law of the complainant. 11. Thus, in view of the discussions made above, this Court is of the considered view that there is no merit in this criminal miscellaneous petition. 12. Accordingly, this criminal miscellaneous petition is dismissed being devoid of any merit. High Court of Jharkhand, Ranchi Dated the 26th June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 8 Cr.M.P. No.953 of 2022
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For the O.P. No.2 : Mr. Rajesh Kumar, Advocate : Mrs. Kumari Rashmi, Addl. P.P. : Mr. Suraj Singh, Advocate : Ms. Apurva Shrestha, Advocate ….. By the Court:- 1. 2. Heard the parties. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order dated 1 Cr.M.P. No.953 of 2022 28.01.2022 passed in Protest-cum-Complaint Case No. 837 of 2021, by the learned Judicial Magistrate -1st Class, Hazaribagh whereby and where under the learned Magistrate has found prima facie case for the offences punishable under Section 149/341/323/354/379/427/506 of the Indian Penal Code. 3. The allegation against the petitioners are that the petitioners being the members of an unlawful assembly on 18.08.2019 at about 08:00 P.M. assaulted the complainant by thrashing him on the ground by holding his neck and also assaulted with lathi and danda and when the wife of the complainant came to his rescue, the petitioners outraged her modesty by catching hold of the hair, pinned her down on the floor and tore her saree and blouse. The petitioners also in common object of the unlawful assembly committed theft of the gold chain from the neck of the wife of the complainant and committed mischief by vandalizing the house of the complainant and also committed theft of Rs.50,000/- and some jewelries kept in a box in the house of the complainant. 4. It is submitted by the learned counsel for the petitioners that the petitioners are innocent and they have not committed any offence. It is then submitted that the complainant first filed Complaint Case No. 2124 of 2019 which was referred to police under Section 156(3) Cr.P.C. Police registered Gorhar P.S. Case No. 35 of 2019 and took up investigation of the case. After investigation police submitted 2 Cr.M.P. No.953 of 2022 final form stating lack of evidence but the complainant filed a Protest-cum-Complaint Petition and the learned Magistrate on the basis of the materials available in the record including the statement of the complainant under solemn affirmation,