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Madhya Pradesh High Court · body

2017 DIGILAW 519 (MP)

Saiyad Asfaq Ali v. Kaisar Begum Owaisi

2017-04-18

J.P.GUPTA

body2017
ORDER : This petition has been preferred under section 482 of the Criminal Procedure Code against the impugned order dated 7-9-2015 passed by the Judicial Magistrate First Class, Rewa in Criminal Case No. 3010/2015 whereby the complaint case under section 379 of the Indian Penal Code has been registered against the applicants. 2. In brief, relevant facts of the case are that the respondent son Dr. Shad F. Zaman Owaisi marriage was solemnized with the applicant No. 3 on 14-4-2012 at district Indore as per Muslim customs and rituals. Applicant No. 1 is the father of the applicant No. 3 and applicant No. 2 is the cousin of applicant No. 3. After the marriage, applicant No. 3 went to the matrimonial house of respondent situated at Rewa. Thereafter respondent and her son started demand of dowry and harassed and tortured the applicant No. 3. On 19-4-2015 respondent and her son/husband of the applicant No. 3 brutally beaten the applicant No. 3 and caused severe injury on her left ear. Then the applicant No. 3 informed his father applicant No. 1 who send applicant No. 2 to Rewa and thereafter she came back to Indore along with the applicant No. 2 on 21-4-2015 and lodged an FIR against the respondent and his son/husband of the applicant No. 3 on 23-4-2015 in Mahila Thana Indore, which was registered as Crime No. 28/2015 under section 498-A, 323, 506/34 of the Indian Penal Code and under section 4 of the Dowry Prohibition Act and also filed complaint under Protection of Woman from Domestic Violence Act and have also filed the petition under section 125 of the Criminal Procedure Code for maintenance. When the respondent and his son came to know about the fact that aforesaid FIR has been registered against them then respondent in order to dissolve the case filed against them on 18-6-2015 filed a complaint stating that on 21-4-2015 applicant No. 3 and her cousin brother applicant No. 2 dishonestly took out ornaments worth Rs. 10 lakhs from the house. On the aforesaid complaint, after enquiry learned JMFC have taken cognizance for offence under section 379 of the Indian Penal Code and the summons have been issued to the applicants, therefore this petition has been filed. 3. It is submitted that the allegation in the complaint case does not disclose any criminal offence committed by the applicants. On the aforesaid complaint, after enquiry learned JMFC have taken cognizance for offence under section 379 of the Indian Penal Code and the summons have been issued to the applicants, therefore this petition has been filed. 3. It is submitted that the allegation in the complaint case does not disclose any criminal offence committed by the applicants. The complaint case is bereft of any details showing the role of the applicants and consisting of vague allegations and are so absurd and inherently improbable that on the same no prudent person can ever reach to a just conclusion that there is sufficient ground for proceeding against the applicants. Even the allegation if taken on their face value accepted entirely do not prima facie constitute any offence or make out a case against the applicants. The aforesaid criminal proceeding is manifestly attended with mala fide or maliciously instituted with an ulterior motive for wreaking vengeance on the applicants. In the present case applicants would be put to severe hardship if they continue to face full fledged trial. The continuation of criminal proceeding amounts to an abuse of the process of law and deserve to be quashed. In this regard learned counsel for the applicants placed reliance on the judgment in the case of Manju Rani Gharami vs. State of West Bengal, (2002) SCC OnLine Cal 382: (2003) 1 Cal LJ 582 and relevant para 6 and 7 are reproduced as under :— 6. Coming about the question to consider whether the allegation raised has disclosed an offence punishable under section 380, Indian Penal Code, it is to be noted that under the definition of the offence theft contained in section 378, Indian Penal Code, the prosecution must establish that there was a taking away of a movable property, out of a possession of another, without his consent and such taking away was with the intention to take the same dishonestly. Section 24 of the Indian Penal Code defines ‘dishonestly’ in the following manner. “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’. ‘Wrongful gain’ and ‘wrongful loss’ have been defined in section 24 of the Act in the following manner. ‘Wrongful gain’ is gained by lawful means of property to which the person gaining is not legally entitled. ‘Wrongful gain’ and ‘wrongful loss’ have been defined in section 24 of the Act in the following manner. ‘Wrongful gain’ is gained by lawful means of property to which the person gaining is not legally entitled. ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled. 7. In the instant case, the whole allegation is that the petitioner the wife of the defacto-complainant while leaving the house took, away some ornaments without the consent of the defacto-complainant and in the petition of complaint there was no allegation that the gold ornaments belonged to the defacto-complainant exclusively. The admitted back-ground, in this case is that the petitioner/wife who solong lived with the husband and who also was in possession of those gold ornaments along with the husband left the house with those gold ornaments. In that background, it cannot be said that the action on the part of the wife was to cause wrongful gain to her or wrongful loss to defacto-complainant, the husband. It is well established that before the offence of theft is made out, it has to be show that (1) the accused was not legally entitled to the property alleged to be stolen and that (2) the complainant was wrongfully deprived of the property. Considering all these it can be said clearly that in the facts and circumstances of the case one of the most important ingredients of the theft, namely, intending to take dishonestly any movable property, is absent and therefore prima facie there cannot by any allegation punishable under section 379 or under section 380 of the Indian Penal Code. 4. On behalf of the respondent none was present. 5. Considering the contention of the parties and on perusal of the record of the complaint case, it appears that on 21-4-2015 applicant No. 3 left matrimonial house with her cousin applicant No. 2 and it is alleged that sometime keys of almirah was handed over to the respondent. Later on 5-5-2015, it was found that lot of ornaments kept in the almirah were not found and enquiry was made on phone from the applicant No. 3, the applicant No. 3 admitted that she and her cousin brother applicant No. 2 on direction of applicant No. 1 took out all the ornaments. Later on 5-5-2015, it was found that lot of ornaments kept in the almirah were not found and enquiry was made on phone from the applicant No. 3, the applicant No. 3 admitted that she and her cousin brother applicant No. 2 on direction of applicant No. 1 took out all the ornaments. Later on applicant No. 1 also admitted the facts on telephone and also stated that if respondent son will divorce the applicant No. 3 they will return the ornaments otherwise the applicant No. 3 will take it in her use. From the averments in the complaint, prima facie it appears that this is not a case of theft, it is a matrimonial dispute in which daughter-in-law took with her the ornaments kept in the matrimonial house. There is no prima facie evidence to establish the fact that the property was not “stridhan” or was the property of the exclusive ownership of the respondent. The applicant No. 3 has left the house in the circumstances when she was beaten therefore, taking her belonging with her along with her ornaments or other articles of her matrimonial house cannot be said to be an act of theft. This is a dispute of civil nature and definitely it is filed as a counter blast after lodging of the FIR against the respondent and his son with regard to property and demand of dowry with the applicant No. 3. Apart from it, as per the allegation in the complaint no one has seen to take away the ornaments by the applicant No. 1 and 2. Near about 15 days the ornaments found missing no complaint has been lodged, no specific date and telephone number have been mentioned to make query with the applicant No. 3 and applicant No. 1. After refusal of the return of ornaments, no written notice has been given no complaint to the police was lodged or no protest has been lodged against none recording of FIR by the police till more than one month. In such circumstances, no prudent man can belief that the allegations be considered prima facie to reach to a such conclusion that there is a sufficient ground for proceeding against the applicants. 6. In such circumstances, no prudent man can belief that the allegations be considered prima facie to reach to a such conclusion that there is a sufficient ground for proceeding against the applicants. 6. The scope of section 482 of Criminal Procedure Code has been discussed by the Apex court in the case of Rishipal Singh vs. State of Uttar Pradesh and another, reported in (2014) 7 SCC 215 extensively. The relevant paras are reproduced herein :— 10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have a thorough look at section 482, Criminal Procedure Code, which reads : “482. Saving of inherent powers of High Court. — Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” A bare perusal of section 482, Criminal Procedure Code makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under section 482, Criminal Procedure Code. 11. This Court in Medchl Chemicals and Pharma (P) Ltd. vs. Biological E. Ltd., (2000) 3 SCC 269 : 2000 SCC (Cri) 615 has discussed at length about the scope and ambit while exercising power under section 482, Criminal Procedure Code and how cautious and careful the approach of the courts should be. We deem it apt to extract the relevant portion from that judgment, which reads : (SCC p. 272, para 2) “2. We deem it apt to extract the relevant portion from that judgment, which reads : (SCC p. 272, para 2) “2. Exercise of jurisdiction under the inherent power as envisaged in section 482 of the Code to have the complaint or the charge-sheet 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 rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount”. 12. This Court in a plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the courts under section 482, Criminal Procedure Code. In State of Haryana vs. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court has listed the categories of cases when the power under section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) CBI v. Duncans Agro Industries Ltd. [ (1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , (2) Rajesh Bajaj v. State (NCT of Delhi) [ (1999) 3 SCC 259 : 1999 SCC (Cri) 401] and (3) Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283] . Sharaful Haque [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283] . This Court in Zandu Pharmaceutical Works Ltd. [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283] observed that : The power under section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under section 482 of the Code must be exercised and proceedings must be quashed. Also see Om Prakash v. State of Jharkhand [ (2012) 12 SCC 72 : (2013) 3 SCC (Cri) 472], SCC p. 95, para 43. 13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under section 482, Criminal Procedure Code. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact. 7. In the light of the aforesaid discussion, it is clear that the continuance of the proceedings against the applicants on the basis of complaint made by the respondent with regard to commission of offence under section 379 of Indian Penal Code would be not justifiable and it would amount to an abuse of the process of the court hence the proceeding deserves to be quashed. Accordingly this petition is allowed.