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2017 DIGILAW 357 (ALL)

Razia Akhtar v. State of U. P.

2017-01-25

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Udai Shankar Tiwari, for the applicants and Sri S.P.S. Parmar, for opposite party-2. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order of Chief Judicial Magistrate, Bhadohi, at Gyanpur dated 23.03.2015, passed in Case No. 1011 of 2015, State Vs. Shamim Akhtar and others, taking cognizance on Charge Sheet No. Nil of 2015, dated 12.03.2015 submitted in NCR No. 288 of 2014, under Section 323, 504, 506 IPC, PS Kotwali, Bhadohi, district Bhadohi as well as entire proceeding of aforesaid Case No. 1011 of 2015, pending before him. 3. On the complaint of Afzal Khan (opposite party-2) NCR No. 288 of 2014, under Section 323, 504, 506 IPC, was registered at PS Kotwali, Bhadohi, district Bhadohi on 30.09.2014, at 17-15 hours. It has been alleged in complaint that Afzal Khan was married to Razia Akhtar daughter of Shamim Akhtar, resident of Bari Garhi, Ram Nagar, five years ago, who was staying in her father's house from a period of three years. On 28.09.2014, she along with her father, mother, brother and several other persons came for talk of compromise at the house of his friend Amzad Ansari, resident of village Nurkhapur, Bhadohi. During talks, all of a sudden (i) Shamin Akhtar son of Hafiz Rajjak (ii) Ayub Akhtar son of Shamim Akhtar (iii) Razia Akhtar daughter of Shamim Akhtar (iv) Kaniz Fatima wife of Shamim Akhtar began to abuse and beat him. They went away threatening to kill him. 4. After taking permission, the police investigated the matter. During investigation the police interrogated Islam son of Zabbar Ansari, Zamil Khan son of Fida Hussain, Israr Ahmad son of Moin Khan, Amzad son of Abdul Raseed and Istakhar son of Nizamuddin and submitted Charge Sheet No. Nil of 2015 dated 12.03.2015, under Section 323, 504, 506 IPC, on which Chief Judicial Magistrate, Bhadohi, at Gyanpur took cognizance on 23.03.2015 and Case No. 1011 of 2015, State Vs. Shamim Akhtar and others, was registered and the applicants have been summoned for trial of the case. Hence, this application has been filed. 5. The counsel for the applicants submitted that Razia Akhtar (applicant-1) was married to Afzal Khan (opposite party-2) on 29.09.2009, according to Muslim rites, in the marriage her father had given sufficient dowry according to wish of Afzal Khan and his family members and spent about Rs. Hence, this application has been filed. 5. The counsel for the applicants submitted that Razia Akhtar (applicant-1) was married to Afzal Khan (opposite party-2) on 29.09.2009, according to Muslim rites, in the marriage her father had given sufficient dowry according to wish of Afzal Khan and his family members and spent about Rs. 15 lakhs. After marriage, she went to her matrimonial house where she stayed for 3-4 days and thereafter she came back to her father's house. In the ceremony of 'Paav-feri', Afzal Khan along with his brothers, sisters and other relations came to her father's house, then he complained about less dowry. When she went to her matrimonial house, then Afzal Khan and his family members began to demand additional dowry of Rs. One lakh and one Alto car. The applicants could not fulfil their demand as such they began to taunt, beat and torture Razia Akhtar. They beat her severely on 01.08.2010 and compelled her to go to her father's house. Due to which she went to her father's house on 02.08.2010. She lodged an FIR of Case Crime No. 110 of 2010, against her husband and other family members, in which after investigation, the police has submitted charge sheet No. 76 of 2011 dated 06.09.2011, on which cognizance has been taken by the concerned Magistrate on 11.10.2011 and the case is pending. Razia Akhtar also filed an application (registered as Application No. 481 of 2011) under Section 125 Cr.P.C. on 24.10.2011 for maintenance. This case is also pending. She has also filed a complaint (registered as Complaint No. 13 of 2012) under Section 12 of Protection of Women from Domestic Violence Act, 2005, on 12.01.2012 and this case is also pending. Present NCR was lodged on false allegations, only in order to create illegal pressure upon the applicants and is malafide. She had improved her version in her application under Section 155 (2) Cr.P.C. from which falseness is proved. Some of the witnesses interrogated by the police were not on the spot. There was no sufficient material for submitting charge sheet. Charge sheet has been submitted under Section 323, 504, 506 IPC as such it cannot be treated as a state case. Entire proceeding is an abuse of process of the Court and is liable to be quashed for ends of justice. 6. There was no sufficient material for submitting charge sheet. Charge sheet has been submitted under Section 323, 504, 506 IPC as such it cannot be treated as a state case. Entire proceeding is an abuse of process of the Court and is liable to be quashed for ends of justice. 6. I have considered the arguments of the counsel for the parties and examined the record. A perusal of NCR shows that it discloses commission of offence. Opposite party-2 has also submitted medical examination report regarding his injuries. The witnesses have supported the version of NCR. Thus it cannot be said that NCR does not disclose any offence or police has submitted charge sheet without there being sufficient material to proceed with the prosecution. The order of Magistrate taking cognizance cannot be said to suffer from any illegality. 7. Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , has held that it is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. 8. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. 8. Supreme Court held that although it is not possible to give exhausting categories of cases, in which criminal proceeding can be quashed at the initial stage but some of the categories have been enumerated in State of Haryana v. Bhajan Lal, (1992) Supp 1 SCC 335 holding that this Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly-defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: - (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) 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.' Supreme Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised ''very sparingly and with circumspection and that too in the rarest of rare cases'. 9. Supreme Court in State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 , held that so far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. Similar view has been taken in Mahavir Prashad Gupta v. State of National Capital Territory of Delhi, (2000) 8 SCC 115 , State of Karnataka Vs. M Devendrappa, (2002) 3 SCC 89 and Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy, 2011 (3) JIC 465 (SC). 10. Similar view has been taken in Mahavir Prashad Gupta v. State of National Capital Territory of Delhi, (2000) 8 SCC 115 , State of Karnataka Vs. M Devendrappa, (2002) 3 SCC 89 and Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy, 2011 (3) JIC 465 (SC). 10. So far as the arguments that entire proceeding is malafide and has been initiated to create undue pressure upon the applicants due to previous proceedings started by Razia Akhtar is concerned, Supreme Court in State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 , held that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. 11. In Bobbili Ramakrishna Raja Yadad v. State of A.P., (2016) 3 SCC 309 , held that when a prosecution at the initial stage was asked to be quashed, the test to be applied by the Court was as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. It was also for the Court to take into consideration any special feature which appears in a particular case to consider whether it was expedient and in the interest of justice to permit a prosecution to continue. This was so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. 12. So far as the argument based on Explanation to Section 2(d) of Cr.P.C. is concerned, the Explanation provides that a report made by a police officer in a case which discloses after investigation the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. In the present case after investigation the charge sheet has been submitted under Sections 323, 504, 506, I.P.C. which are non-cognizable offences as such it is provided that the applicants may file an application before the Magistrate concerned to convert this case from state case to a complaint case. In case such an application is filed then the Magistrate may pass a suitable order on it. 13. In view of the aforesaid discussions, there is no merit to quash the charge sheet or proceeding of the case. Subject to the aforesaid liberty for filing an application for converting the case into complaint case, the application is disposed of.