Jamal Amir vs The State Of Jharkhand
2023 Latest Caselaw 79 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       Cr.M.P. No. 491 of 2022
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1. Jamal Amir

2. Dr. Farrukh Azam

3. Shagufta Yasmeen

4. Anam Fatema .... .... .... Petitioners Versus

1. The State of Jharkhand

2. Yasmin Tarannum .... .... .... Opposite Parties

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Petitioner : Mr. Amit Kumar, Advocate For the State : Ms. Kumari Rashmi, A.P.P.

For the Informant       : Mr. J.J. Sanga, Advocate
                          Mr. Anand Prakash, Advocate
Order No.06/ Dated : 04.01.2023

Instant criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding against the petitioners in connection with Doranda P.S. Case No.25 of 2022 for the offence registered under Sections 498A of the I.P.C. and Sections 3 & 4 of the D.P. Act pending in the Court of J.M. 1st Class, Ranchi.

2. It is argued on behalf of the petitioners that when the prosecutrix had no occasion to stay in the matrimonial home for even a brief span of time, a case cannot be said to be made out for subjecting to cruelty in reference to the said alleged demand. Petitioner No.4- Anam Fatema is unmarried sister of petitioner No.1 living at Bangalore and has been roped in the case on the general allegation. It has also been submitted that the present case is counter blast to the legal notice sent by the petitioner No.1 to the informant which was delivered on 21.01.2022. In the legal notice an offer for settlement had been made. Instead of replying to the legal notice, the present F.I.R. has been registered. The opposite party No.2 has herself admitted in para 18 of the counter affidavit at para 12 that she returned to India only on 15.01.2022.

3. Reliance has been placed in the case of Veena Mittal Versus State of Uttar Pradesh & Others; (2022) 1 RCR (Criminal) 818 wherein it has been held that at the stage when the High Court considers a petition for quashing criminal proceedings under Section 482 of the Cr.P.C., the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no offence, as alleged, has been made out, that the Court may be justified in exercising its jurisdiction to quash. He further relied in the case of Preeti Gupta & Another Versus State of Jharkhand & Another; (2010) 7 SCC 667 wherein it has been observed that the tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in

dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. In Ramesh & Others Versus State of Tamil Nadu; (2005) 3 SCC 507 para 6 of the judgment is quoted hereinbelow:-

"Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant-Gowri Ramaswamy. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offence, viz., Sections 498-A, 406 of the I.P.C. and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of informant by her sister-in- law (appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant to wash W.C. and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are our slave." It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed."

4. It is submitted that there is direct and specific allegation in the FIR that the informant had been harassed in reference to dowry demand and was not allowed in the matrimonial home necessitating the institution of the present case. Unless the investigation is carried out the probative value of allegation cannot be tested. Learned counsel on behalf of the informant relied in on Mustt. Rehana Begum Versus State of Assam & Another; 2022 SCC OnLine SC 82 para 14 (XII) wherein the following principles have been laid down under Section 482 of the Cr.P.C:

14. In Neeharika Infrastructure v. State of Maharashtra, a three-judge Bench of this Court analysed the precedent of this Court and culled out the relevant principles that govern the law on quashing of a first information report under Section 482 of the CrPC. The Court held:

"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

6. In the light of the above stated position of law, the matter for consideration is whether in the present case the extraordinary jurisdiction of quashing the criminal proceeding can be exercised or not? It is to be seen on the basis of the allegations made in the FIR, if the offence alleged as made out on the basis of the materials on record without considering its probative value. The power under this Section is to be exercised to prevent the abuse of process of court, where the imputation is made do not make out offence alleged.

7. The principal alleged offence is Section 498A of the IPC and Section ¾ Dowry Prohibition Act.

In order to make out an offence under Section 498A, there should be materials to show that the informant was subjected to cruelty. The cruelty has been meant to be any wilful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health

(mental or physical) of the woman or she was harassed in reference to an unlawful demand.

8. A plain reading of the FIR will disclose that the allegations made in the F.I.R. does not disclose materials to make out the offence alleged. As per the F.I.R., the following undisputed facts emerge that the informant is working in Singapore whereas her husband/petitioner No.1-Jamal Amir is working at Gurgaon and is resident of Dhanbad. Petitioners Nos.2 and 3 are the father and mother-in-law who live at Dhanbad, and Petitioner No.4 is the unmarried sister-in-law lives at Bangalore. The marriage was solemnized on 13.10.2019 and both sides came in contact on the basis of matrimonial site-Jeevansaathi.com. There is no allegation that any demand of dowry was made before the marriage or any dowry was demanded or given before the marriage took place. The allegation of dowry demand has come-up after the said marriage. The couple spent their honeymoon at Maldives on 24.10.2019, but honeymoon was short-lived and trouble arose soon thereafter. As per the case of the informant, from the entire F.I.R., it appears that informant did not ever live in her matrimonial home at Dhanbad. On 26.11.2019, she had to leave for Singapore in connection with her work and returned on 15.01.2022.

9. The power of quashing of criminal proceeding is an extraordinary power but nevertheless it has to be exercised in cases of abuse of process of court are where there are palpable reasons for the criminal cases being instituted to wreck vendetta and persecute the family.

Under the circumstance, the criminal proceeding arising out of Doranda P.S. Case No.25 of 2022 against the petitioners/accused persons, is hereby quashed.

The Criminal Miscellaneous Petition is allowed.

(Gautam Kumar Choudhary, J.) Anit