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2018 DIGILAW 2409 (BOM)

Kazi Tahmid Tab v. State of Maharashtra

2018-10-05

P.N.DESHMUKH, SWAPNA JOSHI

body2018
JUDGMENT : Swapna Joshi, J. The Criminal Application is admitted and heard finally at the stage of admission. 2. The applicants have filed this application under Section 482 of the Code of Criminal Procedure to quash and set aside the First Information Report bearing No.648/2017 filed by respondent no.2 at Police Station, Frezarpura, Amravati for the offences punishable under Sections 498-A, 506 r/w 34 of the Indian Penal Code. 3. The facts giving rise to the criminal application are as under : - Respondent no.2-complainant Smt. Yasmeen Nigar was married with applicant no.1 Kazi Tahmid Tab on 23.04.2016 at Amravati as per Muslim customs and rites. The complainant is working in Amravati University. After the marriage, for few days, applicant no.1 treated respondent no.2 properly, however, thereafter he started ill-treating her. He used to demand money from her. Due to said ill-treatment at the hands of applicant no.1, from 30.6.2017 respondent no.2 started residing with her parents. It is alleged that applicant no.1 used to physically and mentally torture her by saying to leave his house and he does not want to stay with her. He used to ask her to bring the amount for her son's expenses from her parents. He used to threaten her that otherwise he would set her on fire. It is further alleged that applicant no.2, her mother-in-law, applicant no.3, her father-in-law, applicant no.4, her uncle-in-law, applicant no.5 her brother-in-law and applicant no.6, wife of applicant no.4 ill-treated respondent no.2 physically and mentally and they used to demand money from her. The said complaint was lodged by respondent no.2 on 15.7.2017 which was registered by Police Station, Frezarpura, Amravati on 20.7.2017. In the meantime, on 20.7.2017, respondent no.2 made a statement before Mahila Cell against all applicants stating therein that she was asked to bring the amount of Rs. 50,000/-, she was not provided food and they abused her. It was stated that on 15.7.2017, they all poured kerosene on her person. However, she took her child and proceeded to per parents house and lodged the present complaint on 15.7.2017. Since her complaint was not accepted, the complainant complained about the same to the Police Commissioner at Amravati. 4. 50,000/-, she was not provided food and they abused her. It was stated that on 15.7.2017, they all poured kerosene on her person. However, she took her child and proceeded to per parents house and lodged the present complaint on 15.7.2017. Since her complaint was not accepted, the complainant complained about the same to the Police Commissioner at Amravati. 4. Learned advocate for applicants vehemently argued that even if the allegations in the first information report and in the statements of the witnesses are accepted at their face value, no offences under Sections 498-A, 506 r/w 34 of the Indian Penal Code is made out. It is stated that since respondent no.2 is a qualified lady and she wanted to have a separate residence and she was not ready to reside in a joint family, she has levelled the false allegations against applicant nos.2 to 6. 5. Learned Additional Public Prosecutor has supported the registration of the first information report and submitted that the applicants are not entitled for quashing of the first information report in any manner. 6. The learned advocate for applicants has placed reliance upon the case of Geeta Mehrotra and another .vs. State of U.P. and another, (2012) AllMR(Cri) 4059 (S.C.), wherein it is held that : "When the contents of FIR is perused, it is apparent that there are no allegations against sister and brother of complainant's husband except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegations of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 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. 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 cautions approach in matters of quashing specially in cases of 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." The aforesaid case law has good bearing in the present case. 7. In the case of Preeti Gupta and another .vs. State of Jharkhand and another, (2010) 7 SCC 667 , it is held in para 24 as under : "24. In State of Haryana v. Bhajan Lal, this Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) 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 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of court or otherwise to secure the ends of justice. Thus, this Court made 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 a 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. (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 Act concerned (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 Act concerned, 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." 8. In the case of Varala Bharath Kumar and another .v. State of Telangana and another, (2017) AIR SC 4434, it is held as under : "Extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court, either to prevent abuse of process of the court or otherwise to secure the ends of justice. Where allegations made in the First Information Report/the complaint or the outcome of investigation as found in the Charge Sheet, 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 against the accused; where the allegations do not disclose the ingredients of the offence alleged; where the uncontroverted allegations made in the First Information Report or complaint and the material collected in support of the same do not disclose the commission of offence alleged and make out a case against the accused; 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, the power under Article 226 of the Constitution of India or under Section 482 of Code of Criminal Procedure may be exercised. While exercising power under Section 482 or under Article 226 in such matters, the court does not function as a Court of Appeal or Revision. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. The court must be careful and see that its decision in exercise of its power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extra ordinary jurisdiction of quashing the proceedings at any stage. 9. It appears that the offence came to be registered on 2.8.2017. A bare perusal of the first information report dated 15.7.2017 indicates that the allegations are against her husband (applicant no.1). There are general allegations against applicant nos.2 to 6 that they used to physically and mentally ill-treated her and used to demand amount from her, however, there are no specific allegations made against applicant nos.2 to 6. A bare perusal of the first information report dated 15.7.2017 indicates that the allegations are against her husband (applicant no.1). There are general allegations against applicant nos.2 to 6 that they used to physically and mentally ill-treated her and used to demand amount from her, however, there are no specific allegations made against applicant nos.2 to 6. Similarly, the complainant does not make clear as to how much amount and when it was demanded by applicant nos.2 to 6 from her. Significantly after lodging of this complaint the complainant has improved her version in the statement before Mahila Cell which appears to be after thought. It is alleged that all the applicants poured kerosene on her body. No specific allegations are made against applicant nos. 2 to 6. Similarly, no specific role is attributed to applicant nos.2 to 6 in the complaint lodged by respondent no.2 as well as the statement made before the Mahila Cell. No specific instances are quoted by respondent no.2 to attribute the roles of the applicants. Thus, the allegations made in the first information report in no manner constitute the offence punishable under Sections 498-A and 506 r/w 34 of the Indian Penal Code. Similarly, the statement of the mother of respondent no.2 also does not in any manner attract the provisions of Sections 498-A and 506 r/w 34 of the Indian Penal Code. 10. Even if we accept the allegations in the first information report as well as in the statements of the witnesses at their face value, they do not in any manner indicate that the applicants 2 to 6 treated respondent no.2 with cruelty. There is no convincing material on record to show that the applicants 2 to 6 threatened respondent no.2 in any manner. Thus the first information report does not disclose essential ingredients of the offences under Sections 498-A, 506 r/w 34 of the Indian Penal Code. Under these circumstances, continuation of the proceedings against the applicants would be abuse of process of law. Hence, we proceed to pass the following order : ORDER [1] Criminal Application [APL] No.855/2017 is partly allowed. Thus the first information report does not disclose essential ingredients of the offences under Sections 498-A, 506 r/w 34 of the Indian Penal Code. Under these circumstances, continuation of the proceedings against the applicants would be abuse of process of law. Hence, we proceed to pass the following order : ORDER [1] Criminal Application [APL] No.855/2017 is partly allowed. [2] The First Information Report registered vide F.I.R. No.648/2017 filed by respondent no.2 at Police Station, Frezarpura, Amravati for the offences punishable under Sections 498-A and 506 r/w 34 of the Indian Penal Code and the further proceedings emanating from the said First Information Report are hereby quashed and set aside against applicant nos.2 to 6 only.