Jharkhand High Court
Shamsher Khan vs The State Of Jharkhand on 30 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 1669 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1669 of 2019
1. Shamsher Khan
2. Fahmida Bibi @ Famida Bibi
3. Shamshad Khan
4. Roksana Bibi @ Ruksana Bibi
5. Naujad Khan @ Norjad Khan
6. Ejaj Khan
7. Faiyaj Khan ... Petitioners
-Versus-
1. The State of Jharkhand
2. Mafruja Parveen ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Soumitra Baroi, Advocate
For the State : Ms. Nehala Sharmin, Spl.P.P.
For O.P. No.2 : Mr. Samavesh Bhanj Deo, Advocate
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03/30.01.2024 Heard Mr. Soumitra Baroi, learned counsel for the petitioners,
Ms. Nehala Sharmin, learned counsel for the State and Mr. Samavesh Bhanj
Deo, learned counsel for opposite party no.2.
2. This petition has been filed for quashing of the entire criminal
proceeding including the order taking cognizance dated 23.02.2019 in
connection with Rehla P.S. Case No.30/2018, corresponding to G.R.
No.1368/2018, pending in the Court of the learned Judicial Magistrate,
Palamau.
3. Complaint Case No.484/2018 was instituted against one Irshad Khan
and the petitioners alleging therein that opposite party no.2 had married
with Irshad Khan on 05.05.2016 as per Muslim rites and customs and cash,
jewellery and other articles were given at the time of marriage and they
started living as wife and husband. After two months of marriage, opposite
party no.2 was pressurized by the in-laws to bring Rs.2 Lakh and when she
was unable to bring the same she was being tortured by the accused. On
12.06.2017, the accused persons kept all the belongings of opposite party
no.2 and went to the parental house of the opposite party no.2 and started
demanding Rs.2 Lakh from them and on showing their inability, the opposite
party no.2 was assaulted by her husband and she was also treated for that.
On 10.10.2017, the husband of opposite party no.2 and accused Shamshad
Khan on pretext of buying a new car asked for Rs.5 Lakh from opposite
party no.2 and on her refusal, she was again assaulted by them. Again on
05.12.2017, the husband demanded Rs.5 Lakh on phone and threatened
that if opposite party no.2 is unable to pay, he will perform second
marriage. On 08.01.2018, opposite party no.2 gave birth to a girl child and
when the accused were informed they did not come. On 24.03.2018, the
husband came and when he was requested by the mother of opposite party
no.2 to take her back and keep her nicely then the husband informed that
he has performed second marriage and further said that unless Rs.5 Lakh is
given, she will not be taken back. The said complaint case was forwarded to
the Office-in-Charge, Rehla Police Station for lodging FIR under Section
156(3) Cr.P.C. and investigate the case and thus, the present FIR was
registered against the petitioners and Irshad Khan.
4. Mr. Baroi, learned counsel for the petitioners submits that the
complaint case was sent by the learned Court under Section 156(3) Cr.P.C.
for investigation of the case and pursuant to that, Rehla P.S. Case
No.30/2018, corresponding to G.R. No.1368/2018 was registered against
the petitioners and Irshad Khan. He further submits that in that case, final
form was submitted against the husband of opposite party no.2, namely,
Irshad Khan, however, these petitioners were not sent up for trial. He
submits that no protest petition was filed. He also submits that the learned
Court has been pleased to take cognizance against these petitioners. He
submits that petitioner no.1 is the father-in-law, petitioner no.2 is mother-
in-law, petitioner no.3 is elder brother-in-law, petitioner no.4 is the sister-in
law and petitioner nos. 5, 6 and 7 are brothers-in-law of opposite party
no.2. He submits that only general and omnibus allegations are there
against the petitioners. He submits that the police has rightly submitted
final form in favour of the petitioners, however, the learned Court, without
assigning any reason of differing with the final form, has taken cognizance
against the petitioners.
5. Mr. Deo, learned counsel for opposite party no.2 submits that the
learned Court has rightly taken cognizance against the petitioners. He
submits that once final form is submitted, the learned Court is having three
options. Firstly, he may decide that there is no sufficient ground for
proceeding further and drop action. Secondly, he may take cognizance of
the offence under Section 190(1)(b) on the basis of the police report and
issue process; and thirdly, he may take cognizance of the offence under
Section 190(1)(a) on the basis of the original complaint and proceed to
examine upon oath the complainant and his witnesses under Section 200.
He submits that even in a case where the final report of the police under
Section 173 is accepted and the accused persons are discharged, the
Magistrate has the power to take cognizance of the offence on a complaint
or a Protest Petition on the same or similar allegations even after the
acceptance of the final report. To buttress this argument, he relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Zunaid v.
State of U.P. & others, reported in 2023 SCC OnLine SC 1082. He
submits that the learned Court has rightly taken cognizance and this Court
may not interfere at this stage.
6. Ms. Sharmin, learned counsel for the State submits that the final form
was submitted, however, the learned Court has taken cognizance against
the petitioners.
7. It is an admitted position that opposite party no.2 was married with
Irshad Khan on 05.05.2016. The complaint case was filed by opposite party
no.2, which was sent for investigation under Section 156(3) Cr.P.C. The
police has investigated the matter and submitted final form and these
petitioners were not sent up for trial and only the husband of opposite party
no.2 has been sent up for trial, however, the learned Court has been
pleased to take cognizance against these petitioners.
8. There is no doubt that the learned Court can take cognizance against
other persons also if the materials are available and the judgment relied by
the learned counsel for opposite party no.2 on this aspect is not in dispute,
however, if such a situation was there, whereby, final form was submitted in
favour of the petitioners, at least prima facie materials are required to be
disclosed in the order taking cognizance, which is lacking in the case in
hand.
9. Coming to the allegations made in the complaint petition in the
present case, the Court finds that only general and omnibus allegations are
there against the petitioners and if such a situation was there, prima facie
case was required to be given in the order taking cognizance. There is no
reason assigned of differing with the final form in the order taking
cognizance.
10. In view of the above facts, reasons and analysis, to allow to continue
the proceeding against the present petitioners, will amount to abuse of
process of law. Accordingly, so far as the present petitioners are concerned,
the entire criminal proceeding including the order taking cognizance dated
23.02.2019 in connection with Rehla P.S. Case No.30/2018, corresponding
to G.R. No.1368/2018, pending in the Court of the learned Judicial
Magistrate, Palamau are quashed.
11. It is made clear that this Court has not interfered with the order
taking cognizance, so far as husband of opposite party no.2, namely,
Irshad Khan is concerned and the learned Court will proceed in accordance
with law.
12. Accordingly, this petition is allowed in above terms and disposed of.
13. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
