Saiyad Asfaq Ali vs Kaisar Begum Owaisi on 18 April, 2017

MCRC-5761-2016
(SAIYAD ASFAQ ALI Vs KAISAR BEGUM OWAISI)

18-04-2017

This petition has been preferred under section 482 of the

Cr.P.C against the impugned order dated 07/09/2015

passed by the Judicial Magistrate First Class, Rewa in

Criminal Case No. 3010/2015 whereby the complaint

case under section 379 of the IPC 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 14/04/2012 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 19/04/2015 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 21/04/2015 and lodged an FIR against

the respondent and his son/husband of the applicant no.3

on 23/04/2015 in Mahila Thana Indore, which was

registered as Crime No.28/2015 under section 498A,

323, 506/34 of the IPC 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 Cr.P.C 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 18/06/2015 filed a

complaint stating that on 21/04/2015 applicant no.3 and

her cousin brother applicant no.2 dishonestly took out

ornaments worth Rs.10 lacs from the house. On the

aforesaid complaint, after enquiry learned JMFC have

taken cognizance for offence under section 379 of the

IPC 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 malafide 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 IPC, it is to be noted
that under the defination of the offence theft
contained in Section 378 IPC, 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 IPC 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 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 21/04/2015 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 05/05/2015, 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. The scope of section 482 of Cr.P.C. 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 CrPC, 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 CrPC 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 CrPC.

11. This Court in Medchl Chemicals Pharma (P) Ltd. v.

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 CrPC 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. 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
lodgement 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 CrPC. In State of Haryana v. 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] . 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 CrPC.
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 IPC 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.

(J. P. GUPTA)
JUDGE

tarun

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