Partly allowed

Shamshad Alam Khan and Ors. v. State Of Bihar and Anr.

Patna HC6 Jan 2014CR. MISC./1644/2013

Case brief

AI extract

What is this about?

Patna High Court quashed the order issuing processes against three sisters of the accused husband in an 498A case, holding that the FIR contained no specific allegations against them and implicated them only based on family relation, constituting abuse of process.

What did the court decide?

The order dated 25.05.2012 passing processes against petitioner nos. 4, 5 and 6, and the prosecution case against them, was quashed.

Shamshad Alam Khan and Ors. Vs State Of Bihar and Anr. — Quashing and FIR | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.1644 of 2013

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Shamshad Alam Khan S/O Shamshul Haque Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, District- Gazipur (U.P.), At Present Residing At House No. B-252, Gali No. 28, Mahavir Enclave, New Delhi

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Shamshul Haque Khan @ Shamshul Haq Khan S/O Late Saiyeed Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, District- Gazipur (U.P.)

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Naushad Alam Khan S/O Shamshul Haque Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, District- Gazipur (U.P.)

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Nasreen Khatoon @ Nigo Khatoon D/O Shamshul Haque Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, District- Gazipur (U.P.)

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Shahina Khatoon @ Rinu Khatoon S/O Shamshul Haque Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, District- Gazipur (U.P.)

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Husna Bano @ Baby Begum W/O Shaukat Khan And D/O Shamshul Haque Khan Resident Of Bare Mohalla- Sikarwar, P.S.- Bare, DistrictGazipur (U.P.)

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.... .... Petitioner/s

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Versus

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The State Of Bihar

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Sanjida Khatoon W/O Shamshad Alam Khan And D/O Yusuf Khan Resident Of Village- Akhini, P.O.- Akhini, P.S.- Nuaown, DistrictKaimur (Bhabua)

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.... .... Opposite Party/s

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============================================== Appearance :

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For the Petitioner/s : Ms. Fauzia Shakil, Advocate

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Mr. Ram Pravesh Nath Tiwari, Adv For the Opposite Party/s : Mr. Jayanta Ray Choudhary, Adv Mr. Anil Kumar Sinha, Advocate

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============================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER

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08/ 06-01-2014 The present application has been filed for quashing the order dated 25.05.2012 passed by learned Chief Judicial Magistrate, Bhabua (Kaimur) in Complaint Case No. 367 of 2012, whereby processes have been issued after cognizance being taken for the offences punishable under Sections 323

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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and 498A of the Indian Penal Code.

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Initially this application was filed on behalf of the six petitioners but the application with regard to petitioner nos. 1, 2 and 3 being the husband, father and brother of the husband of the complainant were permitted to be withdrawn vide order dated 27.02.2013. Hence, at present the application is for consideration of prayer with regard to petitioner nos. 4, 5 and 6, who are married and unmarried sisters of the husband of the complainant.

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The basic accusation is of torture.

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It is submitted by learned counsel for the petitioners that the accusation is not specific rather omnibus and general to the effect that these petitioners also used to torture, pass sarcastic comments for non-fulfillment of dowry demand and used to pressurize for reconciling to the issue. Hence, it is submitted that petitioner nos. 4, 5 and 6 have only been roped in since they are sisters of the husband of the complainant. Reliance has been placed on the judgment reported in (2009) 10 SCC 184, Neelu Chopra and another Vs. Bharti, (2010) 7 SCC 667 Preeti Gupta and another Vs. State of Jharkhand and another and 2013(1) PLJR (SC) page 11 Geeta Mehrotra Vs. State of U.P.

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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It is submitted by learned counsel for the complainant

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that the complaint petition contains the accusation against these petitioners also, hence, offence under Section 498A of the Indian Penal Code is made out if the husband or relative of the husband inflicts mental and physical torture. Reliance has been placed on the judgment reported in (2009) 14 SCC 588 Undavalli Narayana Rao Vs. State of Andhra Pradesh.

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Here, it would be relevant to firstly examine the provision as laid down under Section 498A of the I.P.C. Section 498A of the I.P.C., which was introduced by the Act 46 of 1983, which reads as under:

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“498A. Husband or relative of husband of a woman 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.

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Explanation.-For the purposes of this Section, "cruelty" means-

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(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

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(b) harassment of the woman where such harassment is with a view to coercing her to meet any unlawful

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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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.]”

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Cruelty has been defined by Explanation added to the Section itself. The basic ingredients of Section 498A IPC are cruelty and harassment. The elements of cruelty so far as Clause (a) is concerned, have been classified as follows:-

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(i) any wilful conduct which is of such a nature as is

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likely to drive the woman to commit suicide;

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(ii) any wilful conduct which is likely to cause grave injury to the woman;

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(iii) any wilful conduct which is likely to cause danger to life, limb or health (whether mental or physical) of the woman.

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So far as Clause (b) is concerned, the essential ingredients are as under:-

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“harassment of married woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand.”

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It thus becomes apparent that charge under Section

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498A of the IPC can be brought home, if the essential ingredients,

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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either in Clause (a) or (b), or both, are found duly established.

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On testing the role of petitioner nos. 4, 5 and 6, with regard to the torture meted out to the complainant, it can be found on bare perusal of the complaint petition that there is neither any whisper of general or omnibus allegation nor any specific averment of accusation against them, and whatever has been specifically or otherwise alleged is only against accused nos. 1, 2 and 3. Hence, the accusation of torture or inflicting cruelty is not made out against the petitioner nos. 4, 5 and 6 by any stretch of imagination.

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The exercise of arraigning the petitioner nos. 4, 5 and 6 as accused, is seemingly and apparently an exercise of over implication and act of implicating the family members (petitioner nos. 4,5 and 6) only because they are related to the husband of the complainant.

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Such practice and tendency of over-implication of the relatives of the husband has been deprecated by the Apex Court in the case of G.V. Rao Vs. L.H.V. Prasad and Ors., reported in (2000) 3 Supreme Court Cases 693. Paragraph 12 of the judgment reads as under:-

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“There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”

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The tendency to implicate the entire in-laws’ family

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with vague and omnibus accusation, which is usually done in a case under Section 498A of the IPC, has also been deprecated by the Apex Court in the case of Neelu Chopra and another Vs. Bharti, reported in (2009) 10 SCC 184. Paragraph no. 9 of the judgment reads as follows:-

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“9. In order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not the be all and end all of the matter. What is required to be brought to the notice of the

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence”. This tendency of implicating the entire in-laws’ family with exaggerated version has been deprecated by the Apex Court in Preeti Gupta’s case (supra). Paragraph nos. 34 to 36 read as follows:-

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“34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.”

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“35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must

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take pragmatic realities into consideration while

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection.” “36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful.”

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Similar view was taken by the Apex Court in the case of Geeta Mehrotra (supra) in paragraph 24 which reads as follows:-

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“However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

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It may be observed that unfortunately the matrimonial litigations have rapidly increased, which has taken in its ambit the large number of people of the society and the tendency to implicate the entire in-laws with exaggerated version has become the routine of the day.

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So far as the exercise of power under Section 482 of the Cr. P.C., is concerned, a Three-Judge Bench of the Apex Court examined the legal position with regard to the exercise of power under Section 482 of the Cr. P.C., in the case of Inder Mohan Goswami V. State of Uttaranchal, reported in (2007) 12 SCC 1. The relevant observations have been made in paragraph no. 24 of the judgment in the following words:-

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“24. Inherent powers under Section 482 Cr.P.C., though

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this Section itself. Authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking powers in absence of specific provisions in the statute.”

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The Apex Court in the case of Zandu Pharmaceutical Works Ltd., Vs. Mohd. Sharaful Haque, reported in (2005) 1 SCC 122, has observed in paragraph no.8 of the judgment, in the following words:-

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“8. ……It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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The principles relating to exercise of jurisdiction under Section 482 of the Cr. P.C., to quash complaints and criminal proceedings have been stated and reiterated by the Apex Court in several decisions, which are stated as under:-

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(i) Madhavrao Jiwajirao Scindia V. Sambhajirao Chanderjirao Angre, reported in(1988) 1 SCC 692;

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(ii) State of Haryana V. Bhajan Lal, reported in 1992 Supp(1) SCC 335;

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(iii) Rupan Deol Bajaj V. Kanwar Pal Singh Gill, reported in (1995) 6 SCC 194;

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(iv) Central Bureau of Investigation V. Duncans Agro Industries Ltd., reported in (1996) 5 SCC 591;

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(v) State of Bihar V. Rajendra Agrawalla, reported in (1996) 8 SCC 164;

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(vi) Rajesh Bajaj V. State of NCT of Delhi, reported in (1999)3 SCC 259;

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(vii) Medchl Chemicals & Pharma (P) Ltd. V. Biological E. Ltd., reported in (2000) 3 SCC 269;

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(viii) Hridaya Ranjan Prasad Verma V. State of Bihar, reported in (2000) 4 SCC 168;

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(ix) M. Krishnan V. Vijay Singh, reported in (2001)8 SCC 645.

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Relying upon the decisions rendered in the above

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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mentioned cases, the Apex Court in the case of Indian Oil Corporation V. NEPC India Ltd., reported in (2006) 6 SCC 736, carved out five principles for exercise of power under Section 482

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Cr. P.C. paragraph no. 12 reads as follows:-

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(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

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For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed enquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

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(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with malafides/ malice

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

(iii)

(iv)

(v)

for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

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The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

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The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even basic facts which are absolutely necessary for making out the offence.

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A given set of facts may make out:

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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(a) purely a civil wrong; or (b) purely a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”

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In view of the above judgments referred to, it is clear that the inherent powers under Section 482 of the Cr. P.C., can be exercised in fit cases for advancement of justice and for preventing the abuse of the process of law.

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In view of the aforesaid discussion, this Court is of the view that the accusation is not specific against these petitioners.

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Patna High Court Cr.Misc. No.1644 of 2013 (8) dt.06-01-2014

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The particulars of the offence or the role played by the accused petitioners in the commission of the offence is nowhere specified. In considered view of this Court, it is a prima facie case of over implication of the petitioners, with exaggerated accusations, which are only vague and general and is also silent about the precise act of the petitioners.

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Hence, the allowing the prosecution to continue will be an abuse of the process of the court and to secure the ends of justice, the prosecution case, with regard to petitioner nos. 4, 5 and 6, including the order dated 25.05.2012, whereby processes have been issued, is hereby quashed.

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Accordingly, this application is allowed to the extent indicated above.

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(Dinesh Kumar Singh, J)

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DKS/-

Shamshad Alam Khan and Ors. v. State Of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Shamshad Alam Khan and Ors. v. State Of Bihar and Anr.

Case brief

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