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2020 DIGILAW 476 (GAU)

Abdul Hamid v. State Of Assam

2020-05-12

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - The present criminal petition has been preferred seeking invocation of inherent jurisdiction of this Court conferred under Section 482, Code of Criminal Procedure, 1973 (''the Code'' and/or ''the CrPC'', for short) for setting aside and quashing of the First Information Report (FIR) lodged by respondent no. 2-informant (hereinafter also referred to as ''the informant'', for easy reference), on 05.12.2016, before the Commissioner of Police, Guwahati. The said FIR has been registered as Basistha Police Station Case no. 1318/2016 (G.R. Case no. 13890/2016) on 08.12.2016 for offences punishable under Sections 419/498A/506, Indian Penal Code (IPC). 2. Heard Mr. M.H. Choudhury, learned counsel for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor for respondent no. 1, State of Assam. This Court on 06.05.2020 heard them in part. As the learned counsel for the respondent no. 2 was found absent on call on that day, the matter stood deferred till today to enable the respondent no. 2 to present her case. Though the names of the learned counsel for the respondent no. 2 are reflected in the cause-list, there is no representation on behalf of the respondent no. 2 today also on call. On 06.05.2020, it was observed that in the event of non-representation on the next date fixed, the Court would proceed with the matter. Accordingly, the matter is taken up for consideration. 3. It is submitted by Mr. Choudhury that the petitioner is an Ex-Member of Parliament (MP), presently aged about 70 years. On the other hand, the informant is a Government servant, presently serving in the Public Work Department, Government of Assam in the Assam Secretariat, Guwahati. He has submitted, by referring to the contents of the FIR, that even if all the allegations made therein are accepted to be true then also none of the ingredients for the offences under Section 419, IPC and Section 498A, IPC can be said to be present for investigation and prosecution. He has further submitted that there are also no ingredients to attract the offence punishable under Section 506, IPC. wxyz 3.1. He has further submitted that in the FIR, the informant has averred that the marriage between her and the petitioner was solemnized on 19.04.2002 and since then, she started living with the petitioner as the second wife of the petitioner. Mr. wxyz 3.1. He has further submitted that in the FIR, the informant has averred that the marriage between her and the petitioner was solemnized on 19.04.2002 and since then, she started living with the petitioner as the second wife of the petitioner. Mr. Choudhury has further submitted that in the year 2013, the informant had preferred an application, F.C.(Civil) Case No. 31/2013, before the learned Principal Judge, Family Court, Kamrup at Guwahati (''the family court'', for short) under Section 281 of the Mohammedan Law seeking restitution of conjugal rights. In support of his submission, he has referred to the contents of the said application, annexed as Annexure-A to this criminal petition. After receipt of notice in F.C. (Civil) Case No. 31/2013, the petitioner had contested the application before the family court by filing his written statement (Annexure-B) the proceedings of which had, thereafter, continued till the year 2016. zyxw wxyz 3.2. After continuance of the proceeding of F.C.(Civil) Case No. 31/2013 for a number of years the informant, on 17.09.2016, had suddenly decided to withdraw the said application and to that effect, she had submitted a petition before the family court, seeking leave to withdraw the same. On her submission that she was not willing to proceed with the case, the family court had allowed withdrawal of the said application and disposed of the case i.e. F.C. (Civil) Case No. 31/2013 on withdrawal. After such withdrawal on 17.09.2016, the informant had lodged the FIR on 05.12.2016. zyxw wxyz 3.3. In the above obtaining fact situation, Mr. Choudhury has submitted that the present FIR has been filed with the sole mala fide intention to cause harassment to the petitioner. zyxw 4. Mr. Gogoi, learned Additional Public Prosecutor for the State has submitted that from the FIR, it transpires that the respondent no. 2-informant is only the second wife of the petitioner. In the FIR, the informant had attributed threat and intimidation on the part of first wife of the petitioner and the children from his first wife to the informant. He has submitted that there is an allegation of abandonment of the informant by the petitioner and the informant had been prevented by the first wife and the children from the first wife of the petitioner, from staying with the petitioner. 5. He has submitted that there is an allegation of abandonment of the informant by the petitioner and the informant had been prevented by the first wife and the children from the first wife of the petitioner, from staying with the petitioner. 5. I have duly considered the submissions of the learned counsel for the parties, indicated above, and perused the materials on record. 6. In the FIR lodged by the informant, it has been averred that she is the second wife of the petitioner who was an Ex-M.P. from Dhubri Lok Sabha Constituency. It is contended that the marriage between the informant and the petitioner was solemnized before the Qazi at Nizamuddin, New Delhi and Mohar was fixed at Rs. 1,00,000/-. After the said marriage, the petitioner took her to his then official quarter at South Avenue, New Delhi and they started their conjugal life since 19.04.2002. As an M.P., the petitioner used to take her often to official functions. After coming back to Guwahati, they continued to live as a couple. As the petitioner''s first wife and children from the first wife''s side used to raise hackles, he started avoiding her on the pretext that his first wife and her children had been repeatedly warning him of dire consequences due to their marriage. The informant was asked to stay away from the petitioner by them, else they would harm the informant and the petitioner. The informant had further stated that even after staying separately, she and the petitioner used to attend social engagements like marriage ceremonies, etc. on other occasions intermittently. The behaviour of the petitioner towards her became rude and defamatory which had harmed her reputation and social standing. The further allegation of the informant was to the effect that on and from 19.04.2011, the petitioner had completely abandoned her without any reason and as her repeated efforts to gain his company had failed, she had filed the application before the family court under Section 281 of the Mohammden Law for restitution of her conjugal rights. The said application was registered as F.C.(Civil) Case No. 31/2013. The said application was registered as F.C.(Civil) Case No. 31/2013. Further allegation is to the effect that the petitioner, in due course, entered his appearance in F.C. (Civil) Case No. 31/2013 and during the course of the said proceeding, the petitioner had proposed to the informant for a settlement out of the court with the promise of a good future and she, accordingly, withdrew the said application, F.C.(Civil) Case No. 31/2013, pending before the family court, on 17.09.2016. Allegation is also made to the effect that during the pendency of F.C.(Civil) Case No. 31/2013, the family members of the petitioner from first wife had threatened the informant and the informant''s children. 7. It is on the basis of the above allegations, made in the FIR, Basistha Police Station Case No. 1318/2016 has been registered and investigation ensued. 8. In Sharon Michael and others vs. State of Tamil Nadu and another, (2009) 3 SCC 375 , it is observed that if the first information report refers to certain documents, those documents can be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint read as whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As the proceeding of F.C.(Civil) Case No. 31/2013 and its subsequent withdrawal on 17.09.2016 have been referred to in the FIR, it is apt to refer to the averments made by the informant in the said case and the contents of the said order, as those are annexed with this petition papers. 9. In the application made in F.C.(Civil) Case No. 31/2013, it was mentioned that she was earlier married to a person named Anil Pujari in the year 1976. Out of the said wedlock, two children were born to the couple, but on 06.08.1988, Anil Pujari expired. The informant got acquainted with the petitioner in the year 2001 at New Delhi. It was after such acquaintance a close relationship developed between them and in the year 2002, on the basis of a proposal from the petitioner, the informant consented to the marriage with him. The rest of the averments were similar, as have been mentioned in the FIR, upto the stage of filing the application under Section 281 of the Mohammedan Law. The rest of the averments were similar, as have been mentioned in the FIR, upto the stage of filing the application under Section 281 of the Mohammedan Law. The informant in her petition seeking withdrawal of F.C.(Civil) Case No. 31/2013, had only stated that the she was not willing to further proceed with the case and wanted to withdraw the case. On the said petition, the learned family court in its order dated 17.09.2016, had observed that the petitioner was not willing to proceed with the case and wanted to withdraw the case. Accordingly, the case was disposed of on withdrawal. 10. As one of the offences alleged against the petitioner is under Section 498A, IPC, it is also apt to refer to the same. Section 498A, IPC reads as under :- wxyz "498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- zyxw wxyz (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or zyxw wxyz (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." zyxw 11. A reading of Section 498A, IPC makes it evident that the ingredients of Section 498A, IPC are (i) that the woman must be married; (ii) that she must be subjected to cruelty or harassment; and (iii) that such cruelty or harassment must have been shown either by the husband of the woman or by the relative of her husband. The word ''cruelty'' has also been defined in the Explanation appended to Section 498A, IPC. It is in two parts. The word ''cruelty'' has also been defined in the Explanation appended to Section 498A, IPC. It is in two parts. As per Clause (a) of the Explanation, cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. On the other hand, Clause (b) of the Explanation says ''cruelty'' as harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 12. Keeping the ingredients for the offence under Section 498A, IPC in mind, if the contents of the FIR are read in its entirety, it can be found that there is no whisper as regards any demand for dowry on the part of the petitioner to the informant at any point of time. There was no harassment of the informant on an issue relating to dowry at any point of time during the period from 19.04.2002, when the marriage was solemnised either till the institution of the application before the family court for the restitution of conjugal rights i.e. F.C. (Civil) No. 31/2013 or till the time the FIR was lodged on 05.12.2016. 13. Thus, it is only to be seen whether ingredients for the offence of cruelty, as defined in Explanation (a) to Section 498A, IPC, are present or not. On perusal of the FIR, nothing can be inferred which can be termed as wilful conduct on the part of the petitioner. It is found that both of them had contested the case instituted by the informant for restitution of conjugal rights for the period from the year 2013 till 17.09.2016. Even if the entire allegations made in the FIR are accepted to be true, none of the ingredients attracting the offence of cruelty under Explanation (a) of Section 498A, IPC can be said to be made out. 14. The allegations, in essence, are to the effect that the petitioner had avoided informant who is his second wife, at the instance and behest of his first wife and her children. 14. The allegations, in essence, are to the effect that the petitioner had avoided informant who is his second wife, at the instance and behest of his first wife and her children. The relief sought in F.C. (Civil) No. 31/2013 was restitution of conjugal rights on the ground that the informant was not given sufficient company by the petitioner by not staying together. The informant had entered into the marital relationship with the petitioner knowing fully well that he had a subsisting marriage and had his first wife and the children from their first marriage. When the application in F.C. (Civil) No. 31/2013 was filed in the year 2013 she alleged that she was deprived from the company of the petitioner since 19.04.2011. Thus, it was abandonment which had led the informant to file the application for restitution of conjugal rights. Since 19.04.2011, the petitioner and the informant were not living together at all as they were living separately. The word ''cruelty'' cannot be ascribed any meaning other than what have been explained in the Explanation. The grievance of the informant was that the petitioner had been living with his first wife. Such conduct of avoidance on the part of the petitioner in order to live with his first wife cannot be termed as wilful which would have the effect of driving the informant to commit suicide or to cause grave injury or danger to her life, limb or health (whether mental or physical). It is averred in the petition that the two sons of the petitioner from his first wife are major and married with children. It is also averred that the informant has 2 (two) children one daughter and one son - from her previous marriage. Both of them are major and are married as on date. 15. The case has also been registered for an offence under Section 419, IPC which defines cheating by impersonation. Section 415, IPC deals with cheating and it reads as follows :- wxyz "415. Both of them are major and are married as on date. 15. The case has also been registered for an offence under Section 419, IPC which defines cheating by impersonation. Section 415, IPC deals with cheating and it reads as follows :- wxyz "415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". zyxw wxyz Explanation. - A dishonest concealment of facts is a deception within the meaning of this Section." zyxw wxyz 15.1 Section 419, IPC defines cheating by personation which reads as follows :- zyxw wxyz "419. Punishment for cheating by personation.- Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." zyxw wxyz 15.2. The ingredients of an offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. zyxw wxyz 15.4. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. zyxw wxyz 15.4. The person can be said to ''cheat by personation'' if he cheats by pretending as some other person or by intentionally substituting one person for another or representing that he or any other person is a person other than he or such other person really is. zyxw wxyz 15.5. It is not the case of the informant that there was any dishonest or fraudulent intention on the part of the petitioner at the time of entering into the marriage. The respondent was well aware that the petitioner already had a wife at the time she entered into marital relationship with the petitioner and she was also aware that she was the second wife of the petitioner. At the very beginning of the FIR, the informant had mentioned that the petitioner was a Member of Parliament from Dhubri Lok Sabha constituency and when he was such a Member of Parliament, the informant met him in New Delhi and they entered into a marriage at New Delhi before the Kazi at Nizamuddin, New Delhi. At a later point of time, the petitioner due to various reasons, about which the informant was well aware, could not give company and attention to the informant. But there was no deception or wilful misrepresentation or concealment of fact on the part of the petitioner. There is no whisper at all that the petitioner at any point of point had impersonated himself pretending to be some other person. The ingredients of the offence under Section 506, IPC are also found lacking. There is no threat or intimidation from the side of the petitioner so as to attract the offence of criminal intimidation under Section 506, IPC. zyxw 16. Thus, from the discussions made above, it is found that the ingredients of the offences under Section 498A, IPC, Section 419, IPC and Section 506, IPC are found absent. 17. The principle to be followed with regard to quashing of a First Information Report are discussed in a catena of decisions of the Supreme Court. zyxw 16. Thus, from the discussions made above, it is found that the ingredients of the offences under Section 498A, IPC, Section 419, IPC and Section 506, IPC are found absent. 17. The principle to be followed with regard to quashing of a First Information Report are discussed in a catena of decisions of the Supreme Court. In State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 , it has been observed as under :- wxyz "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though 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 of myriad kinds of cases wherein such power should be exercised. zyxw wxyz (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. zyxw wxyz (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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. zyxw wxyz (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. zyxw wxyz (4) Where, the allegations in the F.I.R. 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. zyxw wxyz (4) Where, the allegations in the F.I.R. 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. zyxw wxyz (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. zyxw wxyz (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. zyxw wxyz (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. zyxw wxyz We also give 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; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." zyxw 18. A first information report which does not allege or disclose the essential requirements of the penal provisions are prima facie satisfied cannot form the foundation or constitute the starting point of a lawful investigation. It is therefore, not within the authority of the police to investigate into an FIR which does not disclose the commission of a cognizable offence and the Code of Criminal Procedure, 1973 does not impose upon the police to cause investigation into such a case. It is therefore, not within the authority of the police to investigate into an FIR which does not disclose the commission of a cognizable offence and the Code of Criminal Procedure, 1973 does not impose upon the police to cause investigation into such a case. In Bhajan Lal (supra) it is observed that 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, the inherent powers under Section 482, CrPC can be exercised to quash such an FIR. 19. In the light of the principles laid down in the aforesaid decision of the Supreme Court regarding the exercise of powers under Section 482, CrPC and the facts of the case as discussed above, this Court is of the considered opinion that continuance of the criminal proceeding in G.R. Case no. 13890/2016 and the criminal prosecution against the petitioner initiated with the institution of the FIR which was registered as Basistha Police Station Case no. 1318/2016, will be an abuse of the process of the Court. Accordingly, in the interest of the justice, the criminal proceeding in G.R. Case no. 13890/2016, arising out of the First Information Report (FIR) registered as Basistha Police Station Case no. 1318/2016; the First Information Report (FIR) registered as Basistha Police Station Case no. 1318/2016 and all consequent proceedings thereof are quashed and set aside. Resultantly, the criminal petition is allowed. No cost.