Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 84 (JK)

Riyaz Ahmad Ganaie v. Tabassum Sayeed

2015-03-10

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. Petitioner has invoked the inherent jurisdiction of this Court in terms of the provisions of Section 561-A of the Code of Criminal Procedure (for brevity 'Cr.P.C.') for quashing the criminal complaint titled Tabassum Sayeed v. Riyaz Ahmad Ganaie alleging the commission of offences under Sections 406, 498-A Ranbir Penal Code (for short 'RPO against the petitioner, and the cognizance order dated 15.11.2014 passed by the learned District Mobile Magistrate, Anantnag, on the ground that the marriage between the petitioner and respondent solemnized in the year 2011 did not last long due to unwarranted behavior of the respondent and the marriage was dissolved by divorce. The petitioner claims that the respondent had taken all the valuables from her matrimonial home and at the time of divorce remaining articles alongwith dower and maintenance for the period of iddat were given to the respondent. However, the respondent, in order to settle scores with the petitioner, filed a criminal complaint before the learned District Mobile Magistrate, Anantnag, making false allegations of cruelty and criminal breach of trust against the petitioner. The learned Magistrate, in order to ascertain the truth or falsehood of the allegations, directed an inquiry in terms of Section 202 of Cr.P.C. by incharge Police Station, Anantnag, and, after receipt of the inquiry report, the learned Magistrate passed the impugned order, by virtue whereof process was issued against the petitioner for the offences under Sections 406, 498-A RPC. 2. Aggrieved thereof, the petitioner has assailed the impugned order on the ground that the complaint did not disclose the commission of the alleged offences and, therefore, the learned Magistrate was not justified in ordering an inquiry under Section 202 Cr.P.C. The impugned order is also assailed on the ground that the petitioner was not associated with the inquiry and he was not provided an opportunity of being heard. It is further pointed out that the respondent never made any complaint of alleged cruelty during the subsistence of marriage. It is denied that there was entrustment of any property by the respondent to the petitioner or that the petitioner had committed misappropriation amounting to criminal breach of trust. 3. The respondent was put on notice on 15.01.2015, and learned counsels for the parties were provided an opportunity to address the Court. I have heard learned counsel for the parties and considered the matter. 4. 3. The respondent was put on notice on 15.01.2015, and learned counsels for the parties were provided an opportunity to address the Court. I have heard learned counsel for the parties and considered the matter. 4. From the documents placed on record, it emerges that the parties were married on 15.04.2011 according to Muslim rites. Respondent filed a complaint alleging that the relations between the couple turned sore on account of demand of dowry and acts of cruelty emanating from the petitioner, which finally culminated in pronouncement of triple divorce, resulting in dissolution of marriage inter se the parties. She alleged that she had taken dowry articles at the time of solemnization of marriage to her matrimonial home which had been placed under a lock. However, after dissolution of marriage the petitioner had partially misappropriated the dowry articles of respondent after breaking open the lock. The learned Magistrate, after examining the respondent and the witnesses produced by her, passed an order dated 05.03.2014, by virtue whereof he directed investigation to ascertain the truth or falsehood of the allegations in the complaint. The investigation was directed to be conducted by officer incharge of Police Station, Anantnag. On consideration of the report submitted by the officer incharge of Police Post, Damhal Kushipora, the learned Magistrate passed the impugned order dated 15.11.2014, taking cognizance of offence under Sections 406, 498-A RPC, and issued the process against the petitioner. The impugned order is brief and does not specify the reasons impelling the learned Magistrate to issue the process against the petitioner. It has been assailed on the ground that it does not show application of mind by the learned Magistrate. 5. Chapter XVI of Cr.P.C. deals with the subject of complaints to Magistrates. It lays down the procedure to be observed by the Magistrates in commencing proceedings, taking cognizance and issuing process against the accused. Under Section 200 Cr.P.C., the Magistrate, before whom a complaint is made with a view to taking cognizance of an offence, is required to examine the complainant and the witnesses, if any, present upon oath and on consideration of their statements, he has three courses of action open to him. He may, upon conjoint reading of the allegations in the complaint and the statement of complainant and the witness, dismiss the complaint if there is no sufficient ground for proceeding. He may, upon conjoint reading of the allegations in the complaint and the statement of complainant and the witness, dismiss the complaint if there is no sufficient ground for proceeding. If such conjoint reading of complaint and statements of complainant and witness discloses commission of an offence and in the opinion of Magistrate there is sufficient ground for proceeding, he shall issue process for procuring the attendance of the accused. The 3rd course open to the Magistrate is that upon consideration of the complaint and the statement of complainant and witness, the Magistrate may postpone issue of process against the accused and direct an inquiry or investigation by any Magistrate or by a Police Officer or any other person to ascertain the truth or falsehood of the complaint. If the Magistrate opts for this 3rd course of action, and after considering the allegations in the complaint, the statement of complainant and the witness and the result of investigation/inquiry, he is of the opinion that there is sufficient ground for proceeding; he shall issue process for procuring the attendance of the accused. 6. In the case at hand, it emerges that the learned Magistrate was not satisfied in regard to the substance of allegations in the complaint. He postponed the issue of process against the petitioner-accused and directed an investigation by a police officer. The learned Magistrate had taken cognizance of the complaint alleging commission of offence under Sections 406, 378 and 403 RPC, but investigation was directed to induce belief in the Court in regard to the truth of allegations in the complaint constituting the alleged offence, before the court embarked upon issuing process against the accused. The course adopted by the learned Magistrate was perfectly in adherence to the provisions of law engrafted under Sections 202 Cr.P.C. So far so good; what transpired thereafter is the subject matter of controversy. 7 The impugned order dated 15.11.2014 was passed after taking into consideration the result of investigation besides allegations in the complaint. On a cursory look at the investigation report submitted by the Incharge Officer, Police Post, Damhal Kushipora, it comes to fore that the petitioner had pronounced divorce and dissolved the marriage by publishing the Talaknama on Facebook. It further appears that the articles, in respect whereof respondent had produced receipts before the investigating officer, were found lying intact in the house of the petitioner. It further appears that the articles, in respect whereof respondent had produced receipts before the investigating officer, were found lying intact in the house of the petitioner. According to the investigation report, divorce had taken place because the respondent could not meet the dowry demands emanating from the petitioner. 8. Learned counsel for the petitioner submits that the allegations in the complaint are vague and there is no averment in the complaint that after the marriage was dissolved by pronouncement of Talak by the petitioner the respondent had put up a demand for return of her dowry articles stated to have been placed under lock by the respondent in her matrimonial home and that the petitioner had refused to comply with such demand. He has also pointed out that as per investigation report the articles claimed by the respondent were found lying intact in the house of the petitioner. Thus it is contended that commission of offence under Section 406 RPC, is not disclosed. In regard to allegations of cruelty, it is submitted that no such complaint was made during the subsistence of marriage between the parties and after dissolution of marriage such allegations could not be entertained. It is accordingly, submitted that the impugned order of taking cognizance of offence under Section 498-A RPC, and issuing process against the petitioner was an abuse of process of court and deserves to be quashed. 9. Per contra, learned counsel for the respondent submitted that the allegations in the complaint together with the statements of respondent and her witnesses before the investigating officer clearly disclose that the petitioner had misappropriated the dowry articles of respondent and subjected her to cruel treatment by demanding dowry, which justified taking cognizance and issue of process against the petitioner. 10. Admittedly, the marriage between the parties did not last long and the matrimonial alliance was brought to an end by unilateral act of divorce on the part of the petitioner-husband, which was communicated to the respondent-wife. It further appears that no offspring was born out of the wedlock between the parties. Respondent-wife claimed to have put her dowry articles under lock in her matrimonial home. The investigating officer found such articles lying intact in the house of the petitioner. It further appears that no offspring was born out of the wedlock between the parties. Respondent-wife claimed to have put her dowry articles under lock in her matrimonial home. The investigating officer found such articles lying intact in the house of the petitioner. It further appears that such articles were the usual household articles besides some articles of jewellery, thereby implying that, besides articles capable of being jointly used by a married couple, some articles of jewellery could have been used by the respondent-wife to the exclusion of her husband. However, the investigating officer has not specified what type of articles were discovered from the house of the petitioner. Be that as it may, it is clear that the allegations in respect of cruelty were not substantiated, either in the statement of respondent recorded under Section 200 Cr.P.C. before the learned Magistrate or before the investigating officer. Likewise, the allegations in respect of criminal breach of trust in regard to articles of dowry claimed by the respondent as her exclusive property have not been substantiated inasmuch as the same were found lying intact in the house of the petitioner; this is apart from the fact that there was no, prima facie, proof of entrustment of such articles to the petitioner. 11. It is well settled by a catena of authorities that refusal on the part of the husband to part with the exclusive property of wife would amount to criminal breach of trust. However, demand emanating from the wife for return of such articles and refusal on the part of husband to return such articles would be a sine-quo-non to constitute offence under Section 406 RPC. Admittedly, in the complaint, the respondent has nowhere alleged that after pronouncement of Talak she had put up a demand for return of her property to petitioner and the petitioner had refused to return the articles. On the face of it, the complaint does not disclose commission of offence under Section 406 RPC. 12. On consideration of the material placed before the learned Magistrate, it is manifestly clear that ingredients of the offence under Sections 406, 498-A RPC were woefully lacking and did not justify issue of process against the petitioner-accused. On the face of it, the complaint does not disclose commission of offence under Section 406 RPC. 12. On consideration of the material placed before the learned Magistrate, it is manifestly clear that ingredients of the offence under Sections 406, 498-A RPC were woefully lacking and did not justify issue of process against the petitioner-accused. It is well settled that if the allegations in the complaint, statement recorded in support thereof and the result of the investigation/inquiry directed under Section 202 Cr.P.C. does not disclose all the ingredients of alleged offence, taking of cognizance and issue of process in regard to such offence cannot be justified. 13. Viewed thus, the learned District Mobile Magistrate, Anantnag, erred in holding that there was sufficient ground for proceeding against the petitioner-accused. Issue of process in regard to an offence is a serious exercise and entails serious consequences. Ingredients of alleged offence, not being satisfied, issue of process would be an abuse of process of court which cannot be supported. 14. In the aforementioned backdrop, this petition under Section 561-A Cr.P.C. merits acceptance. I do so accordingly. The petition is allowed. Proceedings in complaint titled Tabassum Sayeed v. Riyaz Ahmad Ganaie pending before the court of learned District Mobile Magistrate, Anantnag, are quashed. As a corollary, impugned order dated 15.11.2014, formulated by the learned Magistrate cannot be sustained and same is set aside. Disposed of alongwith CMP.