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Mohammad Mustafa vs State Of U.P. And Another on 25 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment Reserved on 18.10.2019

Judgment Delivered on 25.11.2019

Court No. – 81

Case :- APPLICATION U/S 482 No. – 36804 of 2019

Applicant :- Mohammad Mustafa

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Sadaful Islam Jafri,Nazrul Islam Jafri(Senior Adv.)

Counsel for Opposite Party :- G.A., Saleem Ahmad

Hon’ble Dinesh Kumar Singh-I,J.

1. Heard Sri N. I. Jafri, learned Senior Counsel assisted by Sri S. I. Jafri, learned counsel for the applicant, Sri S. F. Naqvi, learned Senior Counsel assisted by Shri Saleem Ahmad, learned counsel for opposite party no. 2 and Sri Attrey Dutt Mishra, learned A.G.A. for the State.

2. This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet dated 24.05.2019 as well as the entire proceedings of Criminal Case No. 8654 of 2019 arising out of Case Crime No. 115 of 2019 under Sections 323, Section504, Section506, Section376, Section377 and Section494 I.P.C., P.S. Nauchandi, District Meerut pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Meerut.

3. Arguments of learned counsel for the applicant in the affidavit are that the informant is a divorced lady who had three children from her earlier husband. On 05.07.2010, the accused-applicant performed marriage with O.P. No. 2 (informant) and in the said marriage, House No. 111/12 Nelson, Shashtri Nagar, Meerut was given in mehar as per allegation made in the F.I.R. by O.P. No. 2 and that she started living in the said house with the applicant and further as per allegation in the F.I.R., O.P. No. 2 came to know that the applicant had already solemnized marriage earlier with four other women and were having children from them. He had performed marriage with the applicant playing fraud upon her without disclosing his previous marriages. Living in the said house, accused applicant and O.P. No. 2 were blessed with a baby girl, Ivana Mustafa whereafter accused applicant began ill-treating O.P. No. 2 and even abused her and used to give her mental torture and started putting pressure upon her to vacate the said house and with that aim in mind, the accused applicant started threatening the victim that he would give divorce to her. The said F.I.R. is absolutely having a false allegation.

4. The first marriage of the applicant was performed in the year 1988 with one Shama Parveen but she was divorced by him, thereafter he performed second marriage with one Smt. Shabila in the year 1995 and divorced her too in year 2006 though three issues were born out of the said wedlock i.e. Tariq Mustafa, Shariq Mustafa and Shakib Mustafa. Out of three children, Tariq Mustafa and Shariq Mustafa got married and the whole expenses were borne by the applicant. The applicant had married O.P. No. 2 on 05.07.2010 who herself was divorced by her earlier husband, Iqbal and had three children out of the wedlock. After the marriage of applicant with O.P. No. 2, the applicant had taken proper care of three children of O.P. No. 2 i.e. Ilman, Muniba and Sifra born out of her first husband. So far as house no. 111/12, Shashtri Nagar, Meerut is concerned with regard to it having been given to O.P. No. 2 in Meher, the same is untrue as at the time of Nikah, an amount of Rs. 50,000/- was given by accused applicant to O.P. No. 2 as mehar on the first day of marriage. It is also wrong to say that any panchayat was called on 18.04.2016 to resolve the dispute between them. As a matter of fact, two friends of the applicant had tried to settle the dispute between the applicant and O.P. No. 2 and for that purpose, they had asked the applicant to pay Rs. 20,000/- per month to O.P. No. 2. The applicant is already maintaining his entire family members including O.P. No. 2 who is living in the same house. They remained together happily as husband and wife for a span of nine years and no complaint at all was moved from the side of O.P. No. 2. Applicant suffered two major attacks in the year 2011 and had undergone angioplasty in Anand Hospital on 2.12.2017 whereon he was discharged on 4.12.2017 and has been suffering from diabetes and hypertension for the last ten years, proofs of which are annexed as annexure 5/6 of the Application. It is further mentioned that he has moved a Crl Misc. Writ Petition No. 7689 of 2019 wherein this Court had granted him stay against arrest till the submission of police report under Section 173 (2) SectionCr.P.C. vide judgement and order dated 28.03.2019. O.P. No. 2 is out to grab the house of the applicant as she has manufactured a fake nikahnama showing therein the house of the applicant to have been given to O.P. No. 2 as mehar. In-fact at the time of nikah, mehar was given to her as Rs. 50,000/- It is further submitted that when applicant came to know about the fraud played by O.P. No.2, he approached the Nagar Nigam, Meerut on 14.08.2019 and prayed for deleting the name of O.P. No. 2 on the said property, accordingly the correction has been made by the House Tax Officer of the Nagar Nigam, Meerut on the record by deleting the name of O.P. No. 2 on the said house. O.P. No. 2 wants entire house to be recorded in her name although the applicant intends to give only part of it to O.P. No. 2. Further it is submitted that in actual, the said house belonged to one Shabnam W/o Salauddin which was alloted to her by Awas Vikas Parishad in the year 2006 whereafter Shabnam executed power of attorney in favour of the applicant and the said house on the basis of which the applicant has executed a sale-deed in favour of one Md. Saleem in the mid 2014, after having taking its consideration whereafter Md. Saleem became its owner but on 17.07.2014 again, the applicant got the registered sale-deed of house no. 111/12 executed back in his name from Md. Saleem and, thereafter has become its owner. In the year, 2014, applicant had taken cash credit limit of Rs. 12,00,000/- from Jammu Kashmir Bank, Meerut in order to set-up a factory for which he has mortgaged the papers of the said house with the said bank and is running the factory by the name of Megha Roof Industries, Meerut. It is further submitted that the applicant is ready for compromise with O.P. No. 2 for which the matter may be referred to Mediation and Conciliation Centre, Allahabad High Court. Further it is submitted that no offence under Section 323, Section504, Section506, Section376, Section377 and Section494 I.P.C. is made out against the applicant and the charge-sheet submitted by I.O. needs to be quashed. The present prosecution is nothing but a malicious one.

5. Learned counsel for the O.P. No. 2 has filed a Counter-Affidavit in which it is submitted that the applicant did not disclose to O.P. No. 2 at the time of marriage that he had already solemnized four marriages. After some-time of the marriage, the applicant started abusing her in filthy language and started torturing the O.P. No. 2 mentally and physically in order to throw her out from his house. It is true that the marriage of applicant with the O.P. No. 2 was solemnized 05.07.2010 but nikahnama which is annexed as annexure-3 of the affidavit in support of the application is fabricated document. In fact the house no. 111/12 situated at Shastri Nagar, P.S. Nauchandi, Meerut was given by the applicant to O.P. No. 2 as mehar at the time of marriage. It is also denied that a panchayat was not held in order to resolve the disputed between them in which the applicant had compromised that he would take care of her and her children. The I.O. has correctly submitted the charge-sheet after having taking into consideration the statement of O.P. No. 2 recorded under Section 161 Cr.P.C. and 164 SectionCr.P.C. and cognizance has also been taken by the Court. Name of O.P. No. 2 was deleted from the record of said property without giving her any notice or opportunity of hearing. The applicant is an adulterer and has committed heinous offences and the life of O.P. No. 2 and her children is under threat as pressure is being mounted upon her to withdraw the said case or else face dire consequences. At the time of marriage, applicant had assured O.P. No. 2 that he was owner of the house no. 111/12 situated at Shastri Nagar, P.S. Nauchandi, District Meerut and he was giving it to her as mehar but after some-time, he fraudulently executed a sale-deed of the said house in the name of one Salimuddin S/o Latif Khan. Thereafter Salimuddin had executed another sale-deed in favour of the applicant and all this has been done under the conspiracy of applicant. The O.P. No. 2 is a victim of rape and conduct of applicant is that of adulterer who had illicit relationship with so many women, therefore prayer of quashing should be refused.

6. Supplementary-Affidavit is also filed from the side of applicant wherein it is stated that statement of O.P. No. 2 was recorded under Sections 161 and Section164 Cr.P.C. and it is mentioned that as per F.I.R. the allegation of rape is against the friend of the applicant and not against the applicant.

7. I have gone through the F.I.R.

8. Learned A.G.A. and learned counsel for the O.P. No. 2 have vehemently opposed the prayer of quashing.

9. In F.I.R., O.P. No. 2 has mentioned that O.P. No. 2 was a divorced lady having three children from her earlier husband. On 5.07.2010, the applicant approached the O.P. No. 2 misrepresenting that he was a divorced single person and contracted marriage with O.P. No. 2 in lieu of house no. 111/12, Shastri Nagar, Meerut as mehar. Subsequently she learnt that applicant had already married four women earlier and was having children from them. He had solemnized marriage with O.P. No. 2 playing fraud upon her keeping her under dark that he had already married four women and was having children from them but somehow O.P. No. 2 remained quiet due to her helplessness and out of the wedlock, one girl child, Ivana Mustafa was born. Soon the applicant started abusing the O.P. No. 2 and giving her mental torture and started putting pressure to vacate the house or else he threatened that he would divorce her. In the year 2016, the said torture intensified and accused applicant stopped giving her money for house-hold expenditure. Thereafter O.P. no. 2 gave an application in police station against her husband/applicant whereon on 18.04.2016, a panchayat was called, in which he had apologized and had agreed to pay Rs. 20,000/- per month to O.P. No.2 and such compromise was signed by both the sides at the P.S. and accordingly, no further proceedings were done at the P.S. but the applicant again started repeating his activity of cruelty towards O.P. No. 2 and started indulging in having unnatural sex/sodomy and was putting pressure upon her to vacate the house and with that aim in mind, he had executed fake sale-deed in favour of his friend, Salimuddin and after having executed that sale-deed, accused applicant told O.P. No. 2 to vacate the house but she refused to do so stating that the same was given to her as mehar. Again panchayat was held and on 17.07.2014, sale-deed was again got executed by him in his (applicant’s) name from Salimuddin. When applicant could not get an opportunity to get the house vacated by her, he was on the look out of an opportunity to divorce her. He continued to ill-treat her which was borne by O.P. No. 2 quietly but the torture increased beyond limit, thereafter on 3.03.2019, the applicant along with one another person who had his face covered, came with pistol at night about 11:30 P.M. and after dragging the O.P. No. 2 inside her room, committed unnatural sex with her (sodomy) after having stuffed cloth in her mouth and also exhorted his friend that “saali ka tu muh kala kar de tabhi saali makaan khaali karegi.” At this exhortation, the said other person also committed rape upon her and she turned half unconscious and was in pain and when they saw that she would die, they closed the door from outside and fled from there. When the child Ilman had woken up, he took out the clothes stuffed in her mouth and gave water to the victim. They did not go to the P.S. at night but on the next date, they gave an application at the P.S. regarding the incident.

10. I.O. after having conducted investigation submitted charge-sheet after having recorded as many as four witnesses under the above-mentioned sections.

11. As regards offence under Section 376 I.P.C., it would be pertinent to mention here that the same is not made out against the applicant he being husband of victim, because under Section 375 I.P.C., the rape is defined as follows:-

“375. Rape.- A man is said to commit “rape” if he—

(a)     penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b)   inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c)     manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or

(d)    applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:–

First.–Against her will.

Secondly.–Without her consent.

Thirdly.–With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.–With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.–With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.–With or without her consent, when she is under eighteen years of age.

Seventhly.–When she is unable to communicate consent.

Explanation I.–For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.–Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception I.–A medical procedure or intervention shall not constitute rape.

Exception 2.–Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

12. In view of the above provision, it is apparent that in the case at hand, the O.P. No. 2 who is wife of applicant and is above 18 years of age and her marriage with the applicant is not disputed, therefore, offence under Section 376 I.P.C. would not be treated to be made out, hence charge-sheet under Section 376 Cr.P.C. would be required to be quashed against the accused applicant.

13. Now I would like to take up the point as to whether Section 377 I.P.C. against the applicant would be made out or not?

14. For the sake of convenience, Section 377 I.P.C. reads as follows:-

“377. Unnatural offences.–Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.–Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

15. Reliance has been placed upon the judgment passed by Hon’ble Apex Court in Navtez Singh Johar and others Vs. Union of India through Secretary, Ministry of Law and Justice with connected writ petitions (Crl.) (2018) 10 SCC 1 para 645.3 of which is as follows:-

“645.3. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.”

16. I would also like to rely upon the judgment of Nimeshhai Bharatbhai Desai Vs. State of Gujarat 2018 SCC OnLine Guj 732 delivered in R/Criminal Misc. Application No. 26957 of 2017 with R/Criminal Misc. Application No. 24342 of 2017 with R/Special Criminal Application No. 7083 of 2017 on 02.04.2018 that in para 162 of which, the following is held:

“162. A wife can initiate proceedings against her husband for unnatural sex under Sectionsection 377 of the IPC. Section 377 IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Sectionsection 377 of the IPC.”

17. In view of the above position of law, it is apparent that in the case at hand, O.P. No. 2 had made allegation against the applicant that the applicant had married O.P. No. 2 misrepresenting that he was earlier married to four ladies and has children also from some of them. It is further case of O.P. No. 2 that at the time of nikah, in mehar, house no. 111/12 was given to her by the applicant which is being disputed by the applicant saying that the mehar was fixed to be Rs. 50,000/- as cash at the time of marriage which was given to her. But that is subject matter of evidence. It is further alleged by O.P. No. 2 that after some-time of marriage of applicant with O.P. No. 2, the applicant started ill treating O.P. No. 2, thereafter he tried to drive her away from the said house by torturing her and with this aim in mind, he also executed a sham sale-deed in favour of his one friend and on that pre-text, he told her to vacate the house as the same was sold, but when the panchayat was held, the compromise had been arrived at, between the parties and the sale-deed of the said house was again got executed by his friend in the name of the applicant. It is further alleged by O.P. No. 2 that during the life time of earlier wife, he has contracted marriage with O.P. No. 2, therefore he has also committed an offence under Section 494 I.P.C., although the same is being disputed by the learned counsel for the applicant saying that he had given divorce to his earlier wives but agreed that this is also a matter of evidence. As regards abusing and threatening the victim to kill, these are all the matter of evidence as it cannot be said at this stage as to whether the offence under other sections would be made out against the applicant or not. The main thrust of the learned counsel for the applicant appears to be that the present criminal proceeding has been launched against the applicant in order to take vengeance, hence the same is covered under one of the guidelines of the Apex Court laid down in State of Haryana and others Vs. Bhajan Lal and others 1992 Supp (1) SCC 335 but I find that allegations are too many against the applicant but as far as allegation under Section 376 I.P.C. is concerned, a discharge application with respect to said offence may be moved at an appropriate stage, the offence with respect to other sections need to be decided after full trial. I do not find this case covered under any of the guidelines by the Apex Court in State of Haryana and others Vs. Bhajan Lal (Supra), hence quashing of the proceedings is accordingly refused.

18. Learned counsel for the applicant has also relied upon the judgment delivered in State of Bihar Vs. Rajendra Agrawalla 1996 LawSuit (SC) 143, Mushtaq Ahmad Vs. Mohd. Habibur Rehman Faizi, 1996 LawSuit (SC) 230, State of Uttar Pradesh Vs. O.P. Sharma, 1996 LawSuit (SC) 276, State of Tamil Nadu Vs. Thirukkural Perumal, 1995 LawSuit (SC) 160, Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajirao Chadrojirao Anfre and others, AIR 1988 Supreme Court 709, Radhey Shyam Khemka; Nand Kishore Tulsian Vs. State of Bihar, 1993 LawSuit (SC) 273, K Srinivas Rao Vs. D.A. Deepa, 2013 LawSuit (SC) 158, Ravi Kumar Vs. Julmi Devi, 2010, LawSuit (SC) 153, Smt. Mayadevi Vs. Jagdish Prasad, AIR 2007 Supreme Court 1426, Grace Jayamani Vs. E.P. Peter, AIR 1982 Karnataka 46, Bini T John Vs. Saji Kuruvilla, 1997 LawSuit (Ker) 31.

19. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:

“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”                                                    (Emphasis added)

20. The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.

21. From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 SectionCr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of SectionR. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

22. The prayer for quashing the proceedings is refused.

23. It is mentioned by learned counsel for the applicant that accused applicant is already on bail.

24. However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.

25. With this direction, this Application under Section 482 Cr.P.C. is disposed of.

Order Date :- 25.11.2019

A. Mandhani

 

 

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