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2020 DIGILAW 46 (GAU)

Jahida Tabasuna v. State of Assam

2020-01-10

MANISH CHOUDHURY

body2020
JUDGMENT : Manish Choudhury, J. 1. Heard Mr. F. Khan, learned counsel for the petitioners. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor for the State of Assam for respondent no. 1 and Mr. M.U. Mahmud, learned counsel appearing for the respondent no. 2-complainant. 2. By this petition preferred under Section 482, Code of Criminal Procedure, 1973 ("Cr.P.C.", in short), the petitioners have prayed for setting aside and quashing of the complaint case, C.R. Case No. 929/2017, presently pending before the Court of learned Judicial Magistrate, First Class, Morigaon, Assam (hereinafter referred to as the learned trial Court, for easy reference). 3. The respondent no. 2-complainant has instituted the complaint case, C.R. No. 929/2017, on 03.10.2017, before the learned trial Court against the 5 (five) petitioners as accused, who all are residents of Rajpur, Police Station - Gobindaganj, District - West Champaran, Bihar alleging, inter-alia, commission of offences under Sections 379/406/427/120B, Indian Penal Code (I.P.C.) in respect of an incident alleged to have occurred at 03-00 p.m. on 02.12.2016 at the house of the complainant. 4. The gist of the allegations in the complaint are that the petitioner no. 1 is the daughter-in-law of the complainant and the wife of Md. Nesar Ansari, listed as witness no. 1 in the complaint. The marriage between the petitioner no. 1 and Md. Nesar Ansari was solemnized socially about 14 months ago as per Islamic rituals. A number of jewelleries and an amount of Rs. 3,85,000/- were presented at the time of marriage ritual. After the marriage, the couple were living peacefully for the initial few months. Md. Nesar Ansari had taken his wife i.e. the petitioner no. 1 a number of times to her paternal house in Bihar and the other 4 (four) accused persons i.e. the petitioner nos. 2 to 4, who are the parents and the brothers of the petitioner no. 1 used to ask Md. Nesar Ansari to stay with them by deserting his family. The petitioner no. 1 had treated her husband with cruelty on provocation of her family members as her husband did not agree with their proposal. It is alleged that on 02.12.2016, the petitioner nos. 2 to 5 came to the house of the complainant located at Ward No. 3, Morigaon suddenly and on such arrival, the complainant and Md. The petitioner no. 1 had treated her husband with cruelty on provocation of her family members as her husband did not agree with their proposal. It is alleged that on 02.12.2016, the petitioner nos. 2 to 5 came to the house of the complainant located at Ward No. 3, Morigaon suddenly and on such arrival, the complainant and Md. Nesar Ansari after asking the guests to take rest, went to their business place as they have a clothe shop. As the wife of the complainant, listed witness no. 2 in the complaint, was preparing lunch in the kitchen for the guests, the petitioner nos. 2 to 5 decamped from the house by taking advantage of absence of other family members after stealing an amount of Rs. 3,00,000/-, some valuable clothes worth Rs. 1,10,000/- and some gold jewelleries kept inside the almirah. When the wife of the complainant after preparing lunch, called the daughter-in-law i.e. the petitioner no. 1 she did not get any response. When the wife of the complainant found that nobody was there, she informed the complainant and Md. Nesar Ansari immediately over phone. The complainant and Md. Nesar Ansari thereafter, tried to call the petitioner no. 1 and her father i.e. the petitioner no. 2 but they did not pick up the phones. Later on, their mobile phones were found switched off. 5. It is submitted on behalf of the petitioners that the complaint case is a counter blast to two proceedings instituted by the petitioner no. 1 at prior points of time - (1) Complaint Case being C.R. Case No. 110/2017 instituted in the learned Family Court, Motihari, East Champaran, Bihar; and (2) Complaint Case being C.R. Case No. 627/2017 instituted in the Court of learned Chief Judicial Magistrate, Motihari, East Champaran, Bihar. The allegations made in the complaint are all false and concocted as the petitioners had never been to Morigaon as the petitioner no. 1 and her husband were residing at Siswa Khada, Bihar after their Marriage. The complaint was filed on 03.10.2017 alleging occurrence of the alleged offences on 02.12.2016, which is more than 10 months later without there being any explanation about considerable period of delay. The learned counsel for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court in State of Haryana and others vs. Bhajanlal and others, reported in 1992 Supp (1) SCC 335. 6. The learned counsel for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court in State of Haryana and others vs. Bhajanlal and others, reported in 1992 Supp (1) SCC 335. 6. The learned counsel for the complainant-respondent no. 2 has submitted that the power under Section 482, Cr.P.C. is to be exercised sparingly. The grounds urged on behalf of the petitioners, he submits, cannot be considered at this stage for quashing of the criminal proceeding and as such, it is not a fit case for exercise of inherent powers. In support of his submissions, the learned counsel for the complainant-respondent no. 2 has placed reliance upon the decisions of this Court in Subir Kr. Das vs. State of Assam & another; reported in 2019 (1) GLT 104 and Bipul Das vs. State of Assam; reported in 2019 (4) GLT 838. 7. Mr. Baruah, learned Additional Public Prosecutor for the State, Assam has submitted that as the learned trial Court has already taken cognizance and issued process against the petitioners, the proceeding of the complainant case, C.R. No. 929/2017 are to be allowed to reach its logical conclusion after trial. 8. I have dully considered the submissions made by the learned counsel for the parties. I have also perused the documents annexed with the petition and the materials available in the records of Complaint Case, C.R. Case No. 929/2017. 9. It transpires from Annexure-2 to this petition that the petitioner no. 1 has instituted the Complaint Case being C.R. Case No. 110/2017, under Section 125, Cr.P.C. against the son of the complainant i.e. Md. Nesar Ansari as the opposite party before the learned Family Court, Motihari, East Champaran, on 11.04.2017, seeking maintenance for her living. Stating that the marriage between them was solemnized on 28.07.2016, the petitioner no. 1 has alleged that an amount of Rs. 5,00,000/-, gold jewelleries, furnitures and clothes were given to the bridegroom's side as per their demands. After the marriage, the couple started residing at Village - Siswa Khada, Police Station - Kalyanpur, District - East Champaran, Bihar. After a few days, the family of the complainant started torturing the petitioner no. 1 demanding dowry of Rs. 5,00,000/- for opening a cloth shop and putting pressure on her to bring the same from her parental house. After the marriage, the couple started residing at Village - Siswa Khada, Police Station - Kalyanpur, District - East Champaran, Bihar. After a few days, the family of the complainant started torturing the petitioner no. 1 demanding dowry of Rs. 5,00,000/- for opening a cloth shop and putting pressure on her to bring the same from her parental house. On her refusal to bring the same on the ground that her father did not have that much of money, she was tortured physically. Initially, she tried to bear the brunt of such torture but when it exceeded the limits, she had to inform and call her father. Her father during his visit to the matrimonial house had found the life of the petitioner no. 1 unsafe and when he had gone to the local police station to lodge a case, the complainant and his family members prevented her father from lodging a police case with the assurance to treat the petitioner no. 1 well thenceforth. Ultimately, on 15.12.2016, the petitioner no. 1 was chased out of her matrimonial house and when even after elapse of more than 4 (four) months, her in-laws refused to accept her despite repeated requests from her family's side, she stated to have instituted the proceeding under Section 125, Cr.P.C. against her husband seeking maintenance for her living. 10. The proceeding of Complaint Case being C.R. Case No. 627/2017, was instituted in the Court of learned Chief Judicial Magistrate, Motihari, East Champaran, against Md. Nesar Ansari, the mother-in-law, two brothers-in-law and one Md. Monsur Ansari, on 03.04.2017, under Sections 323/341/504/498A/420/406/307/120B, I.P.C. read with Section 3/4, Dowry Prohibition Act. In the complaint of C.R. Case No. 627/2017, annexed to the present petition as Annexure-3, the same assertions as have been made in C.R. Case No. 110/2017, have been reiterated. In this complaint also, all the incidents of cruelty on the petitioner no. 1 stated to have occurred in her in-laws house located in Village - Siswa Khada, Police Station - Kalyanpur, District - East Champaran, Bihar and in the victim's parental house located in Village - Rajepur, Police Station - Gobindganj, District - East Champaran, Bihar. 11. It is not mentioned on behalf of the petitioners about the present stage of proceedings of C.R. Case No. 110/2017 and C.R. Case No. 627/2017 in the present petition. It has, however, been admitted on behalf of the respondent no. 11. It is not mentioned on behalf of the petitioners about the present stage of proceedings of C.R. Case No. 110/2017 and C.R. Case No. 627/2017 in the present petition. It has, however, been admitted on behalf of the respondent no. 2 that on receipt of notice, Md. Nesar Ansari has appeared in C.R. No. 110/2017. Having gone through the contents of all the 3 (three) complaints, it is also noticed that the petitioners' side has asserted that after the marriage, the couple used to reside at Village - Siswa Khada, Bihar whereas as per the version of the complainant, the couple after marriage, started residing in the matrimonial house located in Ward No. 2, Morigaon, Assam and only occasionally, the couple visited the parental house of the petitioner no. 1. The fact that after the marriage, the couple resided in Bihar and not in Assam, as asserted by the petitioners, has not been controverter in any manner by the complainant-respondent no. 2 by filing any affidavit. The fact asserted by the daughter-in-law of the complainant in the aforesaid two complaint cases instituted by her to the effect that she was driven out of her matrimonial home after being treated with cruelty by the complainant and his family members on 15.12.2016 has not been denied in the instant proceeding. 12. In the complaint, the complainant-respondent no. 2 apart from his daughter-in-law, has arrayed the father, the mother and two brothers of his daughter-in-law as accused. In the list of witnesses, the complainant has named (i) Md. Nesar Ansari; (ii) Rubiya Begum, his wife; (iii) Md. Nassad Ansari, his son; and (iv) Md. Ezalak Ali, his son; as his witnesses. All these witnesses are family members of the complainant. Apart from these listed witnesses, the complainant has not listed any other independent witness. In his examination recorded under Section 200, Cr.P.C., the complainant had stated that when one day, the accused person nos. 2 to 5 came to his house he was at his shop at that time. On the other hand, Md. Nesar Ansari in his examination, had stated that on 02.12.2016, all the accused persons came to his house and he and his father i.e. the complainant went to their shop thereafter. Thus, there is inconsistency in the versions of these two witnesses in their initial depositions itself. On the other hand, Md. Nesar Ansari in his examination, had stated that on 02.12.2016, all the accused persons came to his house and he and his father i.e. the complainant went to their shop thereafter. Thus, there is inconsistency in the versions of these two witnesses in their initial depositions itself. These two persons reiterated the other parts which had already been alleged in the complaint, mentioned above. Neither in the complaint nor in the depositions recorded under Section 200, Cr.P.C., there is any whisper about the presence of Md. Nassad Ansari and Md. Ezalak Ali at the relevant time and place when and where the alleged occurrence stated to have taken place. The complainant and Md. Nesar Ansari were also not present in their house when the alleged incident had been alleged to have occurred. The wife of the complainant was the only person who was stated to be present in the house at the time of alleged occurrence. But she also did not see as to how the accused persons, 5 (five) in numbers, had decamped with the alleged money, articles etc. from inside the almirah. It is quite improbable and unnatural that the accused persons, who had come all the way from Bihar, were not noticed by any of the persons from the locality of the complainant when they had left the house of the complainant. 13. The complainant and his family members, more particularly, his son - Md. Nesar Ansari, who is the husband of the petitioner no. 1 were, at the time of institution of the complaint on 03.10.2017, very much aware of the two proceedings, mentioned above, instituted against him and his family members in the Courts in Bihar, as it is admitted, on a query by this Court, that Md. Nesar Ansari has appeared in the proceeding of C.R. Case No. 110/2017 instituted against him and the pendency of these proceedings are not denied by them in the instant proceeding. The complainant and his witness, Md. Nesar Ansari apart from presenting only oral versions of the alleged incident did not bring on record anything to substantiate that an amount of Rs. 3,00,000/- was actually in their possession. When the complaint is lodged after a delay of 10 (ten) months, mere oral versions that an amount of Rs. The complainant and his witness, Md. Nesar Ansari apart from presenting only oral versions of the alleged incident did not bring on record anything to substantiate that an amount of Rs. 3,00,000/- was actually in their possession. When the complaint is lodged after a delay of 10 (ten) months, mere oral versions that an amount of Rs. 3,00,000/- along with other articles, was taken away by the accused persons are not sufficient when there is absolutely no explanation, much less cogent and plausible explanation, as to what prevented the complainant to institute the complaint immediately after the alleged incident. The complainant has not provided any explanation as to why he waited till 03.10.2017 to lodge the complaint in respect of the incident alleged to have occurred on 02.12.2016 inside his house. In his examination under Section 200, Cr.P.C. the complainant had stated that after 4/5 days of the alleged incident of 02.12.2016, he had gone to Bihar to bring back his daughter-in-law but she refused to come back and instead proposed that her husband should stay with her in her parental home. Thus, it has emerged that the complainant when he visited the accused persons' house in Bihar after 4/5 days of the alleged incident of 02.12.2016, he did not raise any issue as regards the alleged incident of 02.12.2016. Such conduct on the part of the complainant clearly puts the veracity of the allegations in the complaint under the cloud. 14. The offence of criminal breach of trust requires that the accused person has been entrusted with property or entrusted with dominion over property and the accused person has dishonestly misappropriated or converted to his own use that property, or dishonestly used or disposed of that property or willfully suffered any person to do so. To constitute an offence of criminal breach of trust, entrustment is an essential ingredient. The accused must be entrusted with the property in respect of which criminal breach of trust is alleged to have been committed and the ownership of that property must be in some person other than the accused and the accused must hold it on account of some person or in some way for his benefit. The accused must be entrusted with the property in respect of which criminal breach of trust is alleged to have been committed and the ownership of that property must be in some person other than the accused and the accused must hold it on account of some person or in some way for his benefit. A bare reading of the complaint has not persuaded this Court to hold that any of the above-mentioned ingredients are present in the complaint so as to reach even a prima facie satisfaction as regards the commission of offence of criminal breach of trust, so as to attract the provision of Section 406, I.P.C. 15. On 06.10.2017, the learned trial Court made the following order:- "06.10.2017 : Complainant is present. The complainant and CW 1 have seen examined U/S 200, Cr.P.C. and their statements have been recorded and appended with the CR. On perusal of the complaint petition, and statements of the complainant and CW 1, I have found enough materials to proceed against the accused persons U/S 379/406/120B, I.P.C. Issue summons to the accused persons accordingly. Fix 17.11.2017 for app." 16. In Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, reported in (1988) 5 SCC 749, it has been observed as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his a legations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of a legations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the a legations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 17. It is settled that in case of a complaint under Section 200, Cr.P.C., a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false of fictitious or intended only to harass the persons arrayed as accused. Such examination is provided in order to find out whether there is sufficient ground for proceeding or not. "Sufficient ground", as appearing in Section 203, Cr.P.C., are construed to mean the satisfaction that a prima facie case is made out against the accused. 18. The decision in Subir Kr. Das (supra) is in reference to cognizance of offence after submission of final report submitted by the police recommending closure and the Magistrate not accepting the final report so submitted, by taking cognizance. This Court in Bipul Das (supra) had refused to quash criminal proceedings under Section 482, Cr.P.C. on the ground that rival contentions gave rise to disputed facts and it was not ascertainable which of the two sets of facts alleged, can be relied on their face values. None of the said decisions is found to be of any assistance to the case of the respondent no. 2-complainant. 19. On perusal of the complaint submitted in respect of C.R. Case No. 929/2017 and the statements of the complainant and the witness recorded under Section 200, Cr.P.C. and in the light of the above discussion, I am of the considered view that no prima-facie case is made out before the learned trial Court by the complainant-respondent no. 2-complainant. 19. On perusal of the complaint submitted in respect of C.R. Case No. 929/2017 and the statements of the complainant and the witness recorded under Section 200, Cr.P.C. and in the light of the above discussion, I am of the considered view that no prima-facie case is made out before the learned trial Court by the complainant-respondent no. 2 for issuance of process against the petitioners as accused for commission of offences under Section 379/406/120B, I.P.C. In State of Haryana vs. Bhajan Lal (supra), it has, inter-alia, been observed that where the uncontroverted allegations in the 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, the power under Section 482, Cr.P.C. can be exercised to quash such complaint. It has also been observed that where the allegations made in the 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 and, in the similar manner, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an anterior motive for wrecking vengeance on the accused and with a view to spite him due to personal grudge the inherent powers available under Section 482, Cr.P.C. can very well be exercised to set at naught such kinds of complaint after exercising the required degree of caution depending upon the facts and circumstances of each particular case. From the sequence of events leading to the time of institution of the complaint under reference, as have been outlined above, it is not difficult to reach a conclusion that the complaint in C.R. Case No. 929/2017 has been instituted by the complainant as a counter blast to the two proceedings instituted by the petitioner no. 1 in Bihar, referred above, with an intention to use the proceeding of the case instituted at Morigaon, Assam to cause harassment to his daughter-in-law and all her family members. Thus, any further continuance of the proceedings of C.R. Case No. 929/2017 before the Court of learned Judicial Magistrate, First Class, Morigaon, Assam cannot be countenanced. 1 in Bihar, referred above, with an intention to use the proceeding of the case instituted at Morigaon, Assam to cause harassment to his daughter-in-law and all her family members. Thus, any further continuance of the proceedings of C.R. Case No. 929/2017 before the Court of learned Judicial Magistrate, First Class, Morigaon, Assam cannot be countenanced. Accordingly, the complaint of C.R. Case No. 929/2017 and the consequential proceeding presently pending in the Court of Judicial Magistrate, First Class, Morigaon, Assam shall stand quashed and set aside. With the above observations made and directions given, this petition stands allowed. No cost.