IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 38970 of 2013
Arising Out of C.R. Case No.-679 Year-2013 Thana- DARBHANGA COMPLAINT CASE
District- Darbhanga
Firdaus Ali @ Tamanna S/o Late Noorul Hoda, Resident of Mohalla-
Mahdauli, P.S.- Laheriasarai, District- Darbhanga.
… … Petitioner/s
Versus
1. The State of Bihar.
2. Firoza Yasmeen @ Firoza Khatoon D/o Late Abdul Majid Resident of
Village- Mohalla- Mahdauli, P.S.- Laheriasarai, District- Darbhanga.
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Krishna Kant Singh, Advocate
For the Opposite Party/s : Mr. Md. Shahnawaz Ali, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL JUDGMENT
Date : 08-02-2019
Heard learned counsel for the petitioner; learned A.P.P.
for the State and learned counsel for the opposite party no. 2.
2. The petitioner has moved the Court under Section
482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as the ‘Code’) for the following relief:
“That this is an application for
quashing the order dated 27.7.2013 passed by the
learned Sub-Divisional Judicial Magistrate,
Darbhanga in C.R. Case No. 679/13 (TR No.
3573/13) whereby he has been pleased to hold that
a prima facie case is made out against the
petitioner under section 498A of the Indian Penal
Code and process of summon be issued against
him and consequently for quashing the entire
criminal proceeding pending against the
petitioner in connection with the present case.”
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3. The opposite party no. 2, who is the complainant has
alleged that she had married the petitioner in the year 2003 and
thereafter, on some pretext, she was not taken to the matrimonial
home and later on a demand was made for motorcycle which the
opposite party no. 2 fulfilled by giving Rs. 50,000/- and thereafter,
it is alleged that thrice she was made to abort. It has further been
alleged that the petitioner had tried to get rid of the complainant
and also used to physically assault her and finally he along with
others had come to the house of the complainant and had abused
her and had also threatened that unless the land belonging to the
mother of the opposite party no. 2 was not transferred in favour of
the petitioner, she would not be kept in the matrimonial home.
4. Learned counsel for the petitioner submitted that the
complaint is totally false and frivolous. It was submitted that the
opposite party no. 2 was never married to the petitioner which
would be clear from documentary evidence in support of such
contention. It was submitted that nowhere in the complaint, there
is any description or mentioning of the exact date of marriage or
any of the witnesses before which such marriage took place which
is mandatory under the personal law. It was submitted that the
falsity of the case would be demolished by the conduct of the
opposite party no. 2 herself when she had filed C.R. No. 1060 of
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2006, before the Chief Judicial Magistrate, Darbhanga on
03.08.2006, in which the petitioner was accused no. 5 and the date
of occurrence was disclosed as 01.08.2006 and the allegation was
that the accused were trying to capture part of the land belonging
to the maternal grandmother of the opposite party no. 2. Learned
counsel submitted that the entire description of the said complaint
which was later on converted into Laheriasarai P.S. Case No. 266
of 2006, there was not even a whisper that the petitioner was the
husband of the opposite party no. 2. Learned counsel submitted
that the petitioner in the said complaint has been also shown to
have an alias Tamanna, whereas in the present case, he has been
shown to have two alias, Tamanna and Tanweer. Learned counsel
submitted that the petitioner at no point of time was ever known
by the alias Tanweer and this alias was added in the present
complaint only for the purpose of creating a document to lend
support of the allegation of the petitioner having married the
opposite party no. 2, inasmuch as, she had brought on record a
document of the clinic of one Dr. Nupur Thakur, in which the Risk
Bond discloses the name of her husband/father as Tanweer and the
person who has signed has also disclosed his name as Tanweer
which is dated 28.07.2011. It was submitted that the falsity of the
document would be clear from the fact that in the column of
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father/husband of the so called Tanweer, who has signed, the name
written is Abdul Majeed. It was submitted that the petitioner’s
father is Nurul Hoda and not Abdul Majeed and further that the
address of the said Tanweer is also Mohalla-Qilaghat, Lalbagh,
Laheriasarai, Darbhanga.
5. Learned counsel submitted that the enmity between
the petitioner and the opposite party no. 2 would also be clear
from the fact that the petitioner was also a signatory to a public
petition which was signed by many persons of the locality
complaining about the activity of one Khalid Azam Khan @ Pyare
Khan against whom the grievance was that he was a nuisance and
used to demand extortion and that the opposite party no. 2 had
relations with him and when they had objected to the opposite
party no. 2 having such relationship, she used to abuse them. It
was further alleged that the opposite party no. 2 had contacts with
anti-social elements of the locality and such petition was filed
before the Superintendent of Police, Darbhanga on 02.08.2006.
Learned counsel further submitted that even against the opposite
party no. 2, there was further complaint before the Superintendent
of Police, Darbhanga on 19.04.2013, which is signed by 83
persons of the locality complaining against the anti-social activity
and misconduct of the opposite party no. 2. It was submitted that
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in the said petition, copies of which were also forwarded to the
Inspector General of Police, Darbhanga; DIG, Darbhanga; SDPO,
Sadar Darbhanga; SHO, Laheriasarai, Darbhanga and SHO,
Mahila P.S. Laheriasarai, Darbhanga, it was clearly disclosed that
for the last 15 years, the opposite party no. 2 was living illicitly in
the house of the said Pyare Khan.
6. Learned counsel submitted that the opposite party no.
2 had submitted a complaint before the Women Helpline in
Darbhanga and report was submitted by the Programme Manager,
Women Helpline, Saidnagar, Darbhanga to the District Magistrate,
Darbhanga dated 30.12.2013, in which the finding is that there is
no proof with regard to the petitioner having married the opposite
party no. 2 and the opposite party no. 2 lives with Pyare Khan
with whom she has relationship. It was submitted that the people
of the locality had protested before the police officers and the
petitioner being a reporter of Rashtriya Sahara Urdu Newspaper
had written about such illicit relationship between the parties and
also about being made accused in a kidnapping case. Learned
counsel submitted that the opposite party no. 2 had also filed
M.R. Case No. 11 of 2013 seeking maintenance in which the
Chief Judicial Magistrate, Darbhanga by order dated 22.04.2013
had directed the petitioner to pay Rs. 20,000/- as interim relief to
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the opposite party no. 2 under Section 23 of the Domestic
Violence Act. It was contended that in challenge to the same in
Criminal Appeal No. 36 of 2013, by order dated 13.04.2014, the
Ad hoc Additional Sessions Judge IV, Darbhanga had set aside the
order of the Chief Judicial Magistrate, Darbhanga dated
22.04.2013 and had remanded the matter with a direction to hold
inquiry with regard to factum of marriage and pass order in
accordance with law. Learned counsel drew the attention of the
Court to the order dated 20.09.2006, which the Chief Judicial
Magistrate, Darbhanga had passed on such remand in which he
held that the matter could not proceed unless the factum of
marriage was decided and for which he was not the competent
Court and the matter was required to be considered by the Family
Court and accordingly M.R. Case No. 11 of 2013 was dismissed.
It was submitted that the opposite party no. 2 preferred Criminal
Appeal No. 49 of 2016 against the said order which was also
dismissed on merit by judgment dated 15.11.2016 by the Sessions
Judge, Darbhanga. It was submitted that the opposite party no. 2
has not moved against the said order of the Sessions Judge,
Darbhanga.
7. Learned counsel also drew the attention of the Court
to various certificates issued by the Ward Councillors of
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Darbhanga Municipal Corporation dated 12.04.2017, 06.05.2015
and 17.05.2015, who had certified that the petitioner was still
unmarried and further that the opposite party no. 2 was living in
the house of Khalid Azam Khan @ Pyare Khan as wife and
husband. Learned counsel drew the attention of the Court to
Annexure-17 of the supplementary affidavit which is copy of
portion of the voter list for the Municipal Election, 2012, where
the name of opposite party no. 2 is at serial no. 299 and instead of
her husband’s name, the name of her father has been entered.
8. Learned counsel submitted that in the solemn
affirmation by the opposite party no. 2 before the Court on
27.05.2013, in her deposition, in reply to the Court’s query, she
has clearly stated that she had filed the case only for going to her
matrimonial home and to stop the husband from second marriage
and there was no other reason. Learned counsel also drew the
attention of the Court to the deposition of P.W. 1 namely, Baby
Khatoon, who has also in reply to the query of the Court stated
that the boy is not taking the opposite party no. 2 to the
matrimonial home and only for this reason, the case has been filed
and for no other reason. It was further pointed out that even P.W.
2 namely Sikandar Azam has stated that he was not aware when
the case was filed and that in his presence no incident had taken
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place and further that the petitioner had not made any demand of
money. Learned counsel submitted that even P.W. 3, Zarina
Khatoon had stated in her examination-in-chief that no dowry was
given and only a motorcycle was given. Learned counsel
submitted that it is also contrary to the stand in the complaint itself
where it has been stated that the opposite party no. 2 had paid Rs.
50,000/- to the petitioner for buying a motorcycle. It was
submitted that inherent material contradictions between the
allegations made in the complaint and the statement of the
witnesses recorded by the Court clearly prove that the whole case
is without merit and in fact false.
9. Learned counsel submitted that the Court exercising
its inherent power under Section 482 of the Code has the
jurisdiction to look into the documents which are either admitted
or which are official in nature and which can be relied upon. It
was, thus, submitted that the petitioner having also moved for
quashing of the entire criminal proceeding, the jurisdiction of the
Court is not limited to merely considering the matter on
technicalities relating to the Court below taking cognizance in the
matter. For such proposition, learned counsel relied upon the
decision of the Hon’ble Supreme Court in All Cargo Movers (I)
Pvt. Ltd. v. Dhanesh Badarmal Jain reported as 2008 (1) PLJR
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(SC) 51, in which it has been held that under Section 482 the
Court may not only take into consideration the admitted facts but
also can look into the admitted documents as criminal proceedings
should not be encouraged when it is found to be mala fide or
otherwise an abuse of the process of the Court. Learned counsel
also referred to the decision in State of Haryana vs. Bhajan Lal
reported as 1992 Supp (1) SCC 335, where the Hon’ble Supreme
Court has enumerated categories under which the Court should
exercise its inherent power under Section 482 of the Code at
paragraph no. 102 of the said judgment. It was submitted that the
case of the petitioner is covered under categories 5 and 7 of the
aforesaid judgment at paragraph no. 102.
10. Learned counsel submitted that the petitioner in the
capacity of an Advocate has also filed power on behalf of Anjum
Ara who had filed Laheriasarai P.S. Case No. 86 of 2012 against
the opposite party no. 2 and others and this also has made the
opposite party no. 2 file cases against the petitioner only for the
purpose of harassing him. Learned counsel submitted that initially
in view of there being cognizance taken by the Court below, the
petitioner has filed A.B.P. No. 1083 of 2013 before the District
and Sessions Judge, Darbhanga but once there was stay granted in
the present case on 20.09.2013, he had filed petition seeking
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permission to withdraw the case, which was allowed on
25.10.2013. It was submitted that in the petition the ground was
taken that since there was stay in the present case by the High
Court, there was no longer any apprehension of his arrest and in
this background, the prayer of the petitioner was allowed and the
application was withdrawn.
11. Learned A.P.P. submitted that the Court below has
taken cognizance on the basis of the materials before it. However,
on a query of the Court with regard to the contradictions in the
complaint petition and the statement of the witnesses, learned
A.P.P. was not in a position to controvert the same. Further, he
fairly submitted that in the case of Bhajan Lal (supra), the Court
can take into account the facts which are based on records.
12. Learned counsel for the opposite party no. 2
vehemently opposed the application and submitted that under
Section 190 of the Code, the Court is only prima facie supposed to
look into the materials available and by doing the same has taken
cognizance which is legal. It was submitted that the petitioner
shall have opportunity to present his defence before the Court
below at the time of framing of charge. On facts, it was submitted
that the opposite party no. 2 had married the petitioner and further
that the name Tanweer is also the alias name of the petitioner and
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him having signed on the Risk Bond in the clinic clearly shows
that he was the husband of the opposite party no. 2. He also relied
upon a decision of the Hon’ble Supreme Court in Nupur Talwar
v. CBI reported as (2012) 2 SCC 188, the relevant being at
paragraphs no. 16 and 17, for the proposition that at the time of
taking cognizance the Magistrate takes judicial notice of an
offence with a view to initiating proceedings in respect of such
offence which appears to have been committed and in the present
case, the same having been done, requires no interference as at
such stage, the Court has only to see prima facie whether there are
reasons for issuing the process and whether the ingredients of the
offence are there on record. However, on a query of the Court as
to the jurisdiction of the Court under Section 482 of the Code for
preventing abuse of the process of the Court and to otherwise to
secure the ends of justice, on the basis of materials which have
been filed by the opposite party no. 2 before various authorities
and Courts below, learned counsel was not in a position to
controvert or disown the same.
13. Learned counsel submitted that out of the 18
annexures brought on record on behalf of the petitioner, the Public
Petition dated 19.04.2013, the Public Petition dated 02.08.2016,
the Public Petition filed before the Superintendent of Police,
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Darbhanga signed by more than 50 persons, copy of which is
Annexure 11 to the application and the certificates granted by the
Ward Councillors, Darbhanga Municipal Corporation namely,
Dinesh Sahni dated 12.04.2017 and 06.05.2015, Hafza Jamal
Praveen dated 17.05.2015 and Nafisul Haque dated 17.05.2015,
are forged and farbicated. On a query of the Court, as to why such
specific statement with regard to such annexures being forged and
fabricated has not been made, learned counsel has referred to the
statement made by him in paragraph no. 5 of his counter affidavit,
in which it has been stated that other annexures are an
afterthought and manufactured documents without there being any
reference to any particular of annexure. Thus, the Court sought the
stand of learned counsel for the opposite party no. 2, with regard
to each and every annexure of the application and the
supplementary affidavit filed on behalf of the petitioner and only
the above four annexures out of 18 annexures have been disputed
by him as being forged and fabricated. It was further submitted
that the signature in the name of Tanweer at Annexure-10 on the
Risk Bond dated 28.07.2011 can be got verified from the forensic
experts. At this juncture, on a query of the Court as to how the
name of the father was written as Abdul Majeed and a different
address given, learned counsel had no answer except for
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submitting that even while writing the name of the father, the
petitioner has tried to mislead. Learned counsel for the opposite
party no. 2 submitted that she has moved before the High Court in
the year 2017 against the order of Sessions Judge dated
15.11.2016, though such fact has not been stated in the counter
affidavit or the Interlocutory Application filed on her behalf.
14. Having considered the facts and circumstances of
the case and submissions of learned counsel for the parties, the
Court finds that a case for interference has been made out.
15. At the very beginning, the Court would indicate that
the facts which have come before the Court and which are
admitted and not disputed by the the opposite party no. 2 are
sufficient to indicate that the present prosecution is absolutely
mala fide and frivolous. The opposite party no. 2 claiming that she
was married in the year 2003 and thereafter filing a case in the
year 2006 against the petitioner and four others in which she has
not described him as her husband and has also made him an
accused without giving any alias name is one strong indicator that
she was not married to the petitioner in the year 2003, as she could
not have been ignorant of the alias name of the person she claims
to have married more than three years prior to filing such
complaint. Thereafter, there being a case filed by one Anjum Ara
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in the year 2012 and the petitioner filing power on behalf of the
said informant in which the opposite party no. 2 was also an
accused has not been controverted by the opposite party no. 2.
Further, the fact that the Ad hoc Additional Sessions Judge IV,
Darbhanga has recorded a finding that the fact of marriage is
disputed and unless such fact is resolved, the opposite party no. 2
cannot claim any benefit or relief based on her mere allegation of
being the wife of the petitioner and such contention which was
also later reiterated by the Sessions Judge, Darbhanga, it is
apparent that merely on the statement of the opposite party no. 2
that she is the wife, a criminal prosecution cannot be allowed to
proceed in the present case. A very stark reality which is borne out
is the fact that in the complaint the allegation is of torture and
abuse and demand of either dowry/ motorcycle and pressure to
get the land in the name of the mother of the opposite party no. 2
transferred in favour of the petitioner, is totally negated by the
statement of the opposite party no. 2 herself and the three
witnesses examined in support of the complaint case by the Court
below. In their evidence, the complainant herself has admitted in
her reply to a Court question that for going to the house of the
husband and preventing him from marrying again the case has
been filed and except this, there is no other reason. The same has
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also been stated by P.W. 1 and further P.W. 2 stating that there was
no demand of any money and in his presence no incident had
taken place and P.W. 3 stating that at the time of marriage though
no money was given but a motorcycle was given, is sufficient to
establish that the present complaint case is totally malicious with
the intention to harass the petitioner. Moreover, the denial of
existence of the public complaint petitions coming merely in the
oral submissions of learned counsel for the opposite party no. 2
during the course of arguments cannot be given much importance,
especially in the background that when the Court asked learned
counsel for the opposite party no. 2 as to why he has not filed any
application seeking action against the petitioner for having
brought on record forged and fabricated documents, there was no
answer forthcoming.
16. The reliance of learned counsel for the opposite
party no. 2 on the judgment in Nupur Talwar (supra) is not
relevant in the facts and circumstances of the present case for the
reason that this Court is exercising jurisdiction under Section 482
of the Code and not merely looking as to whether there was
material before the Court below to take cognizance. Even on this
point, in view of the inherent contradictions, which are material
and serious enough to indicate that the allegations made in the
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complaint were not correct, the Court finds that even the basic
requirement of there being sufficient material before the Court to
come to the conclusion that ingredients are made out, which are
lacking in the present case, such order also cannot be sustained.
Moreover, taking an overall view, the Court finds that the decision
of the Hon’ble Supreme Court in All Cargo Movers (I) Pvt. Ltd.
(supra), relied upon by learned counsel for the petitioner clearly
gives the power of the Court under Section 482 to look into the
admitted facts and admitted documents so as not to encourage
criminal proceeding when it is found to be mala fide or otherwise
an abuse of the process of the Court. Similarly, in the case of
Bhajan Lal (supra), as has rightly been pointed out by learned
counsel for the petitioner, the Court under Section 482 of the Code
is required to exercise inherent power under various situations of
which seven instances have been enumerated in the judgment at
paragraph no. 102, which reads as under:
“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 serious of decisions relating to the
exercise of the extraordinary 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
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guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercise.
(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 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.
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(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.”
17. The Court is also in agreement with the contention
that the present case is covered under categories 5 and 7 of the
aforesaid judgment.
18. Further, the Hon’ble Supreme Court in State of
Karnataka v. L. Muniswamy reported as (1977) 2 SCC 699, at
paragraph no. 7, has observed as under:
“7. ………In the exercise of this wholesome
power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an
abuse of the process of the Court or that the; ends
of justice require that the proceeding ought to be
quashed. The saving of the High Court’s inherent
powers, both in civil and criminal matters, is
designed to achieve a salutary public purpose
which is that a Court proceeding ought not to be
permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the
veiled object behind a lame prosecution, the very
nature of the material on which the structure of the
prosecution rests and the like would justify the
High Court in quashing the proceeding in the
interest of justice. The ends of justice are higher
than the, ends of mere law thought justice has got
to be administered according to laws made by the
legislature. The compelling necessity for making
these observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent powers
of the High Court to do justice between the State
and its subjects it would be impossible to
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jurisdiction.”
19. Thus, even on the basis of admitted documents and
the conduct of the petitioner at various stages before various
authorities/forums and the inherent contradictions between the
averments made in the complaint petition and the statement
recorded before the Court leaves no doubt that the prosecution is
mala fide, untenable and solely intended to harass the petitioner.
20. For reasons aforesaid, the application is allowed.
The entire criminal proceeding arising out of C.R. Case No. 679
of 2013 (T.R. No. 3573 of 2013), including the order dated
27.07.2013, by which cognizance has been taken against the
petitioner, stands quashed.
21. Interlocutory Application No. 535 of 2017 filed for
vacating the interim stay, having become infructuous, stands
disposed off.
(Ahsanuddin Amanullah, J)
P. Kumar
AFR/NAFR AFR
U
T
