The High Court
Case Details
1 Cr.M.P. No. 1669 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1669 of 2019 Fahmida Bibi @ Famida Bibi 1. Shamsher Khan 2. 3. Shamshad Khan 4. Roksana Bibi @ Ruksana Bibi 5. Naujad Khan @ Norjad Khan 6. Ejaj Khan 7. Faiyaj Khan -Versus- The State of Jharkhand 1. 2. Mafruja Parveen ----- … Petitioners … Opposite Parties
Legal Reasoning
favour of the petitioners, at least prima facie materials are required to be disclosed in the order taking cognizance, which is lacking in the case in hand. 9. Coming to the allegations made in the complaint petition in the present case, the Court finds that only general and omnibus allegations are there against the petitioners and if such a situation was there, prima facie case was required to be given in the order taking cognizance. There is no reason assigned of differing with the final form in the order taking cognizance. 10.
Arguments
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioners For the State For O.P. No.2 : Mr. Soumitra Baroi, Advocate : Ms. Nehala Sharmin, Spl.P.P. : Mr. Samavesh Bhanj Deo, Advocate ----- 03/30.01.2024 Heard Mr. Soumitra Baroi, learned counsel for the petitioners, Ms. Nehala Sharmin, learned counsel for the State and Mr. Samavesh Bhanj Deo, learned counsel for opposite party no.2. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 23.02.2019 in connection with Rehla P.S. Case No.30/2018, corresponding to G.R. No.1368/2018, pending in the Court of the learned Judicial Magistrate, Palamau. 3. Complaint Case No.484/2018 was instituted against one Irshad Khan and the petitioners alleging therein that opposite party no.2 had married with Irshad Khan on 05.05.2016 as per Muslim rites and customs and cash, jewellery and other articles were given at the time of marriage and they started living as wife and husband. After two months of marriage, opposite party no.2 was pressurized by the in-laws to bring Rs.2 Lakh and when she was unable to bring the same she was being tortured by the accused. On 2 Cr.M.P. No. 1669 of 2019 12.06.2017, the accused persons kept all the belongings of opposite party no.2 and went to the parental house of the opposite party no.2 and started demanding Rs.2 Lakh from them and on showing their inability, the opposite party no.2 was assaulted by her husband and she was also treated for that. On 10.10.2017, the husband of opposite party no.2 and accused Shamshad Khan on pretext of buying a new car asked for Rs.5 Lakh from opposite party no.2 and on her refusal, she was again assaulted by them. Again on 05.12.2017, the husband demanded Rs.5 Lakh on phone and threatened that if opposite party no.2 is unable to pay, he will perform second marriage. On 08.01.2018, opposite party no.2 gave birth to a girl child and when the accused were informed they did not come. On 24.03.2018, the husband came and when he was requested by the mother of opposite party no.2 to take her back and keep her nicely then the husband informed that he has performed second marriage and further said that unless Rs.5 Lakh is given, she will not be taken back. The said complaint case was forwarded to the Office-in-Charge, Rehla Police Station for lodging FIR under Section 156(3) Cr.P.C. and investigate the case and thus, the present FIR was registered against the petitioners and Irshad Khan. 4. Mr. Baroi, learned counsel for the petitioners submits that the complaint case was sent by the learned Court under Section 156(3) Cr.P.C. for investigation of the case and pursuant to that, Rehla P.S. Case No.30/2018, corresponding to G.R. No.1368/2018 was registered against the petitioners and Irshad Khan. He further submits that in that case, final form was submitted against the husband of opposite party no.2, namely, Irshad Khan, however, these petitioners were not sent up for trial. He submits that no protest petition was filed. He also submits that the learned 3 Cr.M.P. No. 1669 of 2019 Court has been pleased to take cognizance against these petitioners. He submits that petitioner no.1 is the father-in-law, petitioner no.2 is mother- in-law, petitioner no.3 is elder brother-in-law, petitioner no.4 is the sister-in law and petitioner nos. 5, 6 and 7 are brothers-in-law of opposite party no.2. He submits that only general and omnibus allegations are there against the petitioners. He submits that the police has rightly submitted final form in favour of the petitioners, however, the learned Court, without assigning any reason of differing with the final form, has taken cognizance against the petitioners. 5. Mr. Deo, learned counsel for opposite party no.2 submits that the learned Court has rightly taken cognizance against the petitioners. He submits that once final form is submitted, the learned Court is having three options. Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. He submits that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Zunaid v. State of U.P. & others, reported in 2023 SCC OnLine SC 1082. He submits that the learned Court has rightly taken cognizance and this Court 4 Cr.M.P. No. 1669 of 2019 may not interfere at this stage. 6. Ms. Sharmin, learned counsel for the State submits that the final form was submitted, however, the learned Court has taken cognizance against the petitioners. 7. It is an admitted position that opposite party no.2 was married with Irshad Khan on 05.05.2016. The complaint case was filed by opposite party no.2, which was sent for investigation under Section 156(3) Cr.P.C. The police has investigated the matter and submitted final form and these petitioners were not sent up for trial and only the husband of opposite party no.2 has been sent up for trial, however, the learned Court has been pleased to take cognizance against these petitioners. 8. There is no doubt that the learned Court can take cognizance against other persons also if the materials are available and the judgment relied by the learned counsel for opposite party no.2 on this aspect is not in dispute, however, if such a situation was there, whereby, final form was submitted in
Decision
In view of the above facts, reasons and analysis, to allow to continue the proceeding against the present petitioners, will amount to abuse of 5 Cr.M.P. No. 1669 of 2019 process of law. Accordingly, so far as the present petitioners are concerned, the entire criminal proceeding including the order taking cognizance dated 23.02.2019 in connection with Rehla P.S. Case No.30/2018, corresponding to G.R. No.1368/2018, pending in the Court of the learned Judicial Magistrate, Palamau are quashed. 11. It is made clear that this Court has not interfered with the order taking cognizance, so far as husband of opposite party no.2, namely, Irshad Khan is concerned and the learned Court will proceed in accordance with law. 12. Accordingly, this petition is allowed in above terms and disposed of. 13. Pending I.A., if any, is disposed of. Ajay/ (Sanjay Kumar Dwivedi, J.)