482 of the Code of Criminal Procedure, 1973 (hereinafter referred

to as the ‘Code’) for the following relief:

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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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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

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

Pvt. Ltd. v. Dhanesh Badarmal Jain reported as 2008 (1) PLJR
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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

reported as 1992 Supp (1) SCC 335, where the Hon’ble Supreme

Court has enumerated categories under which the Court should

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

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

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

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

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

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

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:

(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.

(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.

(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.

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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.

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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appreciate the width and contours of that silent
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
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