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2014 DIGILAW 1148 (PAT)

Md. Waris v. State of Bihar

2014-11-19

ASHWANI KUMAR SINGH

body2014
Judgment These petitions filed under section 482 of the Code of Criminal Procedure for quashing the order dated 4th January, 2007 made by the learned Chief Judicial Magistrate, Aurangabad by which he has summoned the petitioners in complaint case no.673 of 2006, have been heard together and are being disposed of by a common order. 2. At the outset, it is relevant to note that despite valid service of notice upon opposite party no.2 and despite repeated calls none has appeared on his behalf. 3. Heard Mr. Bhanu Pratap Singh, learned counsel for the petitioners and Mr. Matloob Rub, learned Additional Public Prosecutor for the State. 4. The complainant (opposite party no.2), Abdul Razak, has filed complaint case no.673 of 2006 in the court of the Chief Judicial Magistrate, Aurangabad, Bihar on 4th September, 2005 in respect of an occurrence which is alleged to have taken place on 3rd September, 2006 at about 5 p.m. The petitioner, Bibi Husne Ara, wife of late Haroon Rashid is daughter-in-law of opposite party no.2. It has been alleged in the complaint that earlier the petitioner Bibi Husne Ara had admitted that the complainant (opposite party no.2) had never executed any gift deed in her favour. She had also promised that if any such deed in her favour would be in existence she would get the same cancelled. On the 3rd September, 2006 at about 5 p.m., the complainant made enquiry from the petitioner Bibi Husne Ara in presence of other petitioners as to why she did not stand to her promise and got the gift deed cancelled. The complainant also told that because of the gift deed in question unnecessary litigations were going on in the court. He asserted that he had not executed any gift deed in the name of his daughter-in-law and grandsons. Such utterances made by the complainant caused annoyance to the accused persons. They told the complainant that under no circumstance the gift deed would be cancelled. 5. The argument between the parties took an ugly turn when the petitioner Hifzur Rahman is alleged to have brought a Bhala (spear) from his house and the other accused persons are alleged to have assaulted the complainant and pushed him out of the house. The petitioner Hifzur Rahman is also alleged to have abused the complainant and pressed his neck. The argument between the parties took an ugly turn when the petitioner Hifzur Rahman is alleged to have brought a Bhala (spear) from his house and the other accused persons are alleged to have assaulted the complainant and pushed him out of the house. The petitioner Hifzur Rahman is also alleged to have abused the complainant and pressed his neck. Lastly, it has been alleged that the petitioners have conspired together to grab the house constructed by the complainants younger son over an area of two decimals of land on plot no.784 appertaining to khata no.96. The complainant has alleged that he had never ever executed any deed of gift either in favour of his daughter-in-law Bibi Husne Ara or in favour of her sons and the so called deed of gift is a forged and fabricated document. 6. On presentation of the aforesaid written complaint, the learned Chief Judicial Magistrate, Aurangabad took cognizance of the offence under section 190(1)(a) of the Code of Criminal Procedure (hereinafter referred to as “the Code”). After taking cognizance of the offence on complaint, the complainant was examined on oath under section 200 of the Code. Before issuing process under section 202 of the Code, the learned Chief Judicial Magistrate conducted an enquiry into the matter in order to ascertain the fact whether the complaint has any valid foundation calling for issue of process to the persons complained against or whether it is a baseless one on which no action need be taken. In the process, two witnesses, namely, Nesar Ahmad and Md. Aslam were examined on behalf of the complainant in course of enquiry under section 202 of the Code. After examining the complainant and the witnesses on oath, the learned Chief Judicial Magistrate, Aurangabad finding a prima facie case to be made out against the accused persons, namely, Bibi Husne Ara, Hifzur Rahman, Jehangir Alam, Firdaus Alam and Ashique Jamal for the offences punishable under sections 147, 148, 323, 420, 467 and 468 of the Indian Penal Code directed for issuance of process under section 204 of the Code against them. 7. After the aforesaid order dated 4th January, 2007 was passed by the learned Chief Judicial Magistrate, Aurangabad, a petition was filed on behalf of the complainant praying therein to add the name of two other accused persons named in the complaint, namely, Md. Waris and Md. 7. After the aforesaid order dated 4th January, 2007 was passed by the learned Chief Judicial Magistrate, Aurangabad, a petition was filed on behalf of the complainant praying therein to add the name of two other accused persons named in the complaint, namely, Md. Waris and Md. Wajid in the aforesaid order. The learned Chief Judicial Magistrate, Aurangabad vide his order dated 28th February, 2007 held that due to inadvertence the names of the accused Md. Wajid and Md. Waris were not mentioned in the order dated 4th January, 2007. Accordingly, the aforesaid order dated 4th January, 2007 was modified and the aforesaid two accused persons Md. Wajid and Md. Waris were also summoned to face trial. 8. Mr. Bhanu Pratap Singh, learned counsel for the petitioners, has submitted that the allegations made in the complaint are patently false and absurd. The criminal proceeding against the petitioners has been maliciously launched with ulterior motive, to wreck vengeance on the petitioners with a view to spite them due to private and personal grudge. 9. It has been submitted that the petitioner Bibi Husne Ara is admittedly the daughter-in-law of the complainant and the petitioners Jahangir Alam, Firdaus Alam and Ashique Jamal are her sons whereas the petitioner Hifzur Raham is her cousin. The petitioners Md. Waris and Md. Wajid are relatives of the petitioner Bibi Husne Ara. It has further been submitted that the petitioner Bibi Husne Ara along with her three sons were living in the house in question situated over plot no.784 appertaining to khata no.96 as the said land was obtained by her from her father-in-law on 15th January, 2000 through registered deed of gift. Although the petitioner Bibi Husne Ara and her three sons were living in the said house for more than fifteen years but after the registered deed of gift executed by the opposite party no.2 in their favour they became the owner of the said house and, accordingly, the name of the petitioner Bibi Husne Ara was mutated in the records-of-right in the Aurangabad Municipality and she has been paying rent since then. 10. Mr. Singh has submitted that because of the voluntary transfer of the property in favour of the petitioner Bibi Husne Ara and her three sons by the opposite party no.2, the younger son of opposite party no.2 Adbul Rashid got annoyed. 10. Mr. Singh has submitted that because of the voluntary transfer of the property in favour of the petitioner Bibi Husne Ara and her three sons by the opposite party no.2, the younger son of opposite party no.2 Adbul Rashid got annoyed. He pressurized the complainant to cancel the dispensation inter vivos and transfer the property in his favour. As the complainant did not accede to the pressure made by his younger son Abdul Rashid, he was badly assaulted by him. For that, the complainant had filed a complaint petition in the court of the Chief Judicial Magistrate, Aurangabad which was registered as Complaint Case no.132 of 2001 wherein while deposing in the court, the opposite party no.2 has admitted that he had gifted the land and the house in question to his daughter-in-law by executing registered deed of gift in the year 2000. 11. Mr. Singh has further submitted that the younger son of the opposite party no.2, namely, Abdul Rashid has filed Title Suit No.114 of 2006 on 22nd June, 2006 in the court of Sub Judge-1, Aurangabad in respect of the property in question. Referring to the plaint which has been brought on record it has been submitted that the reliefs prayed for in the said suit are as under:- “1. That the court be pleased to declare that the suit building belongs to the plaintiff and Abdul Razak, defendant no.5 has no right of title or possession to execute regd. deed of gift dated 15.1.2000 in the name of defendant no.1 to 4 and this deed of gift is not binding at all on the plaintiff. 2. Cost of the suit be awarded to the plaintiff. 3. Any other relief or reliefs court thinks just and proper be given to the plaintiff.” 12. It has been submitted that in the background of the facts mentioned hereinabove it does not lie in the mouth of the complainant to allege that the registered deed of gift executed in the year 2000 was not a bona fide one. It has been submitted that in the year 2000, the opposite party no.2 who had earlier executed registered deed of gift in favour of the petitioner Bibi Husne Ara and her three sons came in favour of his younger son, namely, Abdul Rashid and forcefully ousted them from the gifted house in question. It has been submitted that in the year 2000, the opposite party no.2 who had earlier executed registered deed of gift in favour of the petitioner Bibi Husne Ara and her three sons came in favour of his younger son, namely, Abdul Rashid and forcefully ousted them from the gifted house in question. Not only this, the complainant and his younger son Abdul Rashid along with some other accused persons assaulted the petitioner Bibi Husne Ara and her sons on 17th August, 2006. Having regard to the alleged incident of occurrence which took place on 17th August, 2006, the petitioner Bibi Husne Ara had filed a complaint case being Complaint Case no. 641 of 2006 in the court of the Chief Judicial Magistrate, Aurangabad on 18th August, 2006 and, in retaliation to the said complaint, the instant complaint was filed by the opposite party no.2 on 4th September, 2006. Mr. Singh has further submitted that allowing such a frivolous complaint to continue would amount to an abuse of the process of court. 13. Learned counsel for the State has contested the matter. He has submitted that the allegations made in the complaint do make out a cognizable offence against the petitioners. According to him, at this stage, it would not be proper for this court to consider the defence of the accused for the purpose of quashing the order by which the petitioners have been summoned under section 204 of the Code. The correctness or otherwise of the allegations in the complaint has to be seen at the time of trial. 14. Having heard the parties, I am of the considered opinion that the allegations made in the complaint are manifestly attended with mala fide. It is apparent from the record that the complainant has himself admitted in Complaint Case no.132 of 2001 instituted on 19th February, 2001 in the court of the Chief Judicial Magistrate, Aurangabad that because of execution of the registered deed of gift in favour of the petitioner Bibi Husne Ara and her three sons, his younger son Abdul Rashid got annoyed and assaulted him as well as the petitioner Bibi Husne Ara and her three sons. 15. 15. I further find from the record that the younger son of the complainant, namely, Abdul Rashid has filed Title Suit No.114 of 2006 in the court of Sub Judge-1, Aurangabad, seeking declaration that the house in question belongs to him and the complainant had no right title or possession to execute the registered deed of gift dated 15th January, 2000 in the name of the petitioner Bibi Husne Ara and her three sons. 16. It would, thus, appear that the complainant had voluntarily gifted the property in question to the petitioner Bibi Husne Ara and her three sons without any consideration or compensation therefore. A “gift” indisputably becomes complete, when a person transfers with immediate effect the ownership of his movable or immovable property to another person and that other person himself or someone else with his consent, takes possession of the property gifted. Under Mohammedan Law it is a contract which takes effect through offer and acceptance. The validity and legality of the gift deed has not been challenged in any court of competent jurisdiction by the complainant. 17. It appears on consideration of the allegations, in the light of the facts noted above, that the complaint in question is not only mala fide but frivolous and vexatious too. It is well settled that process of court cannot be utilized for any oblique purpose. I am conscious of the fact that the exercise of inherent powers under section 482 of the Code to have a complaint quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of the rare but, at the same time, it is the duty of the court to exercise its jurisdiction under section 482 of the Code if interest of justice so require. 18. A critical analysis of the facts brought on record shows that in the present case the complainant has set the criminal law into motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. 19. In the matter of R. Kalyani vs. Janak C. Mehta and others reported in 2009(1) SCC 516, the Hon’ble Supreme Court observed in paragraph 16 as follows:- “16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. 19. In the matter of R. Kalyani vs. Janak C. Mehta and others reported in 2009(1) SCC 516, the Hon’ble Supreme Court observed in paragraph 16 as follows:- “16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 20. In the matter of V.Y. Jose and another vs. State of Gujarat and another reported in (2009) 3 SCC 78 the Hon’ble Supreme Court observed in paragraph 28 as follows:- “28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts.” 21. Keeping in view the settled legal principles as well as for the reasons aforementioned, I am of the opinion that allowing the prosecution to continue in the present case would certainly amount to an abuse of the process of court. The impugned order, thus, cannot be upheld. 22. Accordingly, the order dated 4th January, 2007 passed by the learned Chief Judicial Magistrate, Aurangabad and the entire complaint in connection with Complaint Case No.673 of 2006 are hereby quashed. Both the petitions stand allowed. Petition allowed.