Md. Abdul Aleem Farooqi vs The State Of Telangana
2021 Latest Caselaw 2121 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.1652 OF 2021
ORDER:

The present Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973, to quash the proceedings against

the petitioners in Crime No.24 of 2021 of Sujathanagar Police Station,

Bhadradri - Kothagudem District.

2. The petitioners herein are accused Nos.1 to 5 in the said

crime. The offences alleged against them are under Sections - 143,

148, 323 and 326 read with 149 of IPC.

3. Heard Mr. Shaik Madar, learned counsel for the petitioners

and learned Assistant Public Prosecutor appearing on behalf of

respondent No.1 - State. Despite service of notice, none appears on

behalf of respondent No.2.

4. Originally respondent No.2 filed a complaint under Section -

200 of Cr.P.C. before the learned III Additional Judicial Magistrate of

First Class, Kothagudem, against the petitioners herein, and the

learned Magistrate has referred it to the police under Section - 156 (3)

of Cr.P.C. for investigation. Accordingly, the police registered the

aforesaid crime.

5. As per the complaint lodged with the Magistrate, the case of

respondent No.2, brother of LW.2, is as under:

KL,J Crl.P. No.1652 of 2021

i) Petitioner No.1 is the legally wedded husband of her sister,

LW.2. Petitioner Nos.2 and 3 are her in-laws, petitioner No.4 is her

sister-in-law and petitioner No.5 is relative of the petitioners.

ii) The marriage of petitioner No.1 with LW.2 was solemnized

as per their caste customers. At the time of marriage, petitioner Nos.1

to 4 and their family members, parents of respondent No.1 gave cash

of Rs.8,80,000/-, 25 tulas of gold and house-hold articles worth of

Rs.5,00,000/- as dowry. They blessed with three children.

iii) After marriage, the petitioners started harassing LW.2 for

want of additional dowry of Rs.20,00,000/-, and her parents used to

adjust the amount to the petitioners, and thereafter they started to

harass her, both physically and mentally demanding additional dowry.

iv) On coming to know that the petitioner No.1 contracted

second marriage with one S.K. Fathima, LW.2 questioned him, for

which also petitioners started harassing her and finally necked her out

of their house. Then, LW.2 gave a report which was registered as

Crime No.7 of 2019 by the Women Police Station, Khammam, for the

offences under Sections - 498A and 506 of IPC and Sections - 3 and 4

of the Dowry Prohibition Act, 1961, and was residing at her parents'

house.

v) At that time, petitioner No.1 convinced her that he would

settle the matter if she sends their children with him to Hyderabad.

Believing the same, she sent the children with petitioner No.1, who

went to Vizag along with children without any intimation to LW.2.

KL,J Crl.P. No.1652 of 2021

vi) On 11.08.2019 at 4.00 p.m., LW.2 along with respondent

No.2 and their relatives went to Sujathanagar and requested petitioner

No.1 to send the children. In the said context, all the petitioners

formed themselves into an unlawful assembly and quarreled with

respondent No.2, his sister, LW.2 and their relatives and beat them

with stick etc., for lodging the aforesaid report with police, and even

they threatened them with dire consequences. In the said quarrel,

respondent No.2 and LW.2 received grievous injuries. Though, he

lodged a report with police, Sujathanagar, no action has been taken.

On the other hand, accused No.3 got foisted a case against respondent

No.2 and others. Even respondent No.1 gave a report to the

Superintendent of Police, Bhadradri - Kothagudem through registered

post on 13.02.2020, but there was no response. Hence, he has filed

the complaint with the Magistrate for referring the complaint to the

police for investigation.

6. Mr. Shaik Madar, learned counsel for the petitioners would

submit that the petitioners are innocent of the offences alleged against

them. They never committed any offence, much less the alleged

offences, and on the other hand, they were implicated in the above

crime.

i) Learned counsel would further submit that LW.2 was non-

cooperative and adamant. Due to her adamant attitude, disputes arose

between LW.2 and petitioner No.1. In fact, LW.2 herself deserted

petitioner No.1 voluntarily by leaving the minor children with him.

KL,J Crl.P. No.1652 of 2021

As the mediation efforts to reconcile were failed, petitioner No.1

married one Shaik Fathima Begum on 05.06.2017.

ii) Learned counsel would further submit that on 08.01.2019,

when petitioner Nos.1 to 3 were in Hyderabad, LW.2 and her family

members and others came to the native place of petitioner No.1 at

Sujathanagar and conducted a 'dharna' illegally in front of their

locked house attracting the print and electronic media by making false

allegations. Then, petitioner No.2 gave a report with police on

09.01.2019 against respondent No.2 and others. As the police did not

take any action, he filed a private complaint before the learned III

Additional Judicial Magistrate of First Class, Kothagudem and the

same is pending. As a counter blast, LW.2 gave report with police

which was registered as Crime No.7 of 2019.

iii) He would further submit that again on 11.08.2019 at 4.00

p.m., when respondent No.2 and his family members created a big

galatta, petitioner No.1 lodged a complaint with Sujathanagar Police

Station which was registered as Crime No.71 of 2019 for the offences

under Sections - 143, 448, 294 (b) and 323 read with 149 of IPC and

thereafter, the police filed charge sheet. Dissatisfying with the

harassment meted out by LW.2, she also gave complaint for giving

triple talaq which was registered as Crime No.319 of 2019 by the

Khanapuram Haveli Police Station for the offences under Section 494

of IPC and Section 4 of the Muslim Women (Protection of Rights on

Marriage) Act, 2019. She also filed DVR No.70 of 2019 on the file of KL,J Crl.P. No.1652 of 2021

II Additional Judicial Magistrate of First Class, Khammam, against

petitioner Nos.1 to 3 with all false allegations.

iv) He would further submit that petitioner No.4 was in Saudi

Arabia for performing Holy Haj on the date of alleged incident i.e.,

11.08.2019 as he went to Saudi Arabia on 04.08.2019 and returned on

07.09.2019, but respondent No.2 implicated him in the present case.

But, without considering all the said aspects and also the aspect that

there are several criminal cases and counter cases filed against each

other, the learned Magistrate referred the complaint to the police for

investigation mechanically. There are no allegations to register a case

against the petitioners. The learned Magistrate ought not to have

referred the complaint and on the other hand ought to have dismissed

the same.

v) In support of his submissions, learned counsel for the

petitioners has relied on the decision rendered by the Hon'ble

Supreme Court in Neelu Chopra v. Bharti1, and another decision

rendered by the High Court of Andhra Pradesh in D.K. Pattanaik v.

The Station House Officer, Nallabelly Police Station2.

vi) With the aforesaid submissions, learned counsel sought to

quash the proceedings against the petitioners in the above crime.

7. On the other hand, learned Assistant Public Prosecutor, on

instructions, would submit that there are specific allegations against

. (2009) 10 SCC 184

. 2008 Crl.L.J. 2287 KL,J Crl.P. No.1652 of 2021

the petitioners which are serious in nature. He would further submit

that the Investigating Officer has examined some witnesses and

recorded their statements under Section - 161 of Cr.P.C., and yet to

examine some more witnesses. He would further submit that

respondent No.2 was treated in the Hospital for the injuries received

by him in the hands of petitioners.

i) He would further submit that the learned Magistrate having

considered the entire material on record came to the conclusion that it

was a fit case to refer the complaint to police for investigation and,

therefore, there was no error committed by the learned Magistrate in

referring the complaint to the police. However, the petitioners have

not challenged the said order of the Magistrate referring the complaint

to the police. The investigation is in progress and, therefore, at this

stage, it is not desirable to quash the proceedings. If at all the

petitioners are innocent and did not commit any offence, much less the

offences alleged against them etc., will be considered by the police

during the course of investigation.

ii) With the aforesaid submissions, the learned Assistant Public

Prosecutor sought to dismiss the present petition.

8. Having regard to the rival submissions, it is relevant to note

that this Court, in the exercise of its jurisdiction under Section 482 of

the Code of Criminal Procedure, is required to examine whether the

averments in the complaint constitute the ingredients necessary for an KL,J Crl.P. No.1652 of 2021

offence alleged under IPC. Thus, it may be apposite to refer to the

relevant provisions under IPC, which are as under:

"Sec.143. Punishment.--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

"Sec.148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

"Sec.323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

"Sec.326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means KL,J Crl.P. No.1652 of 2021

of any 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."

"Sec.149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

9. Having regard to the aforesaid provisions of IPC, now

coming to the case on hand, it is contended by the learned counsel for

the petitioner that the learned Magistrate without considering the

factual aspects and also the fact that petitioner No.4 was in abroad

when the alleged incident occurred, referred the complaint to the

police for investigation and, therefore, he sought to quash the

proceedings against the petitioners herein. In support of his

contention, learned counsel for the petitioner has relied on the

decision in Neelu Chopra1, wherein the Apex Court held as under:

"5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When KL,J Crl.P. No.1652 of 2021

we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants."

10. In the above said judgment, the complaint was bereft of

requisite details, where in the case on hand, respondent No.2 has

mentioned all the details, such as date of occurrence, place of

occurrence and the role of each accused in the commission of offences

alleged against the accused including the usage of stick. The learned

Magistrate having gone through the entire material on record must

have arrived at the conclusion that, prima facie, the contents of

complaint attract the ingredients of offences alleged against the

accused and accordingly referred to the police for investigation. Thus,

the aforesaid decision is inapplicable to the petitioners' case. The

decision in D.K. Pattanaik2 relied on by the learned counsel for the

petitioners, is also on the very same lines and, therefore, the said

decision is also not helpful to the petitioners. However, as rightly

contended by the learned Assistant Public Prosecutor, there is no

challenge to the order of the learned Magistrate referring the KL,J Crl.P. No.1652 of 2021

complaint to the police for investigation. Therefore, viewed from any

angle, the said contention of the petitioner is not sustainable.

11. The Apex Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra3 has categorically held that quashing criminal

proceedings was called for only in a case where complaint did not

disclose any offence, or was frivolous, vexatious, or oppressive. If

allegations set out in complaint did not constitute offence of which

cognizance had been taken by Magistrate, it was open to High Court

to quash same. It was not necessary that, a meticulous analysis of case

should be done before trial to find out whether case would end in

conviction or acquittal. If it appeared on a reading of complaint and

consideration of allegations therein, in light of the statement made on

oath that the ingredients of the offence are disclosed, there would be

no justification for High Court to interfere. The defences that might be

available, or facts/aspects which when established during trial, might

lead to acquittal, were not grounds for quashing complaint at

threshold. At that stage, only question relevant was whether

averments in complaint spell out ingredients of a criminal offence or

not. The Court has to consider whether complaint discloses that prima

facie, offences that were alleged against Respondents. Correctness or

otherwise of said allegations had to be decided only in trial. At initial

stage of issuance of process, it was not open to Courts to stifle

proceedings by entering into merits of the contentions made on behalf

. AIR 2019 SC 847 KL,J Crl.P. No.1652 of 2021

of Accused. Criminal complaints could not be quashed only on

ground that, allegations made therein appear to be of a civil nature. If

ingredients of offence alleged against Accused were prima facie made

out in complaint, criminal proceeding shall not be interdicted.

12. In Skoda Auto Volkswagen India Private Limited v. The

State of Uttar Pradesh4, the Apex Court referring to the earlier

judgments rendered by it has categorically held that the High Courts

in exercise of its inherent powers under Section - 482 of Cr.P.C has to

quash the proceedings in criminal cases in rarest of rare cases with

extreme caution.

13. In State of Haryana v. Bhajan Lal5, the Apex Court

cautioned that power of quashing should be exercised very sparingly

and circumspection and that too in the rarest of rear cases. While

examining a complaint, quashing of which is sought, Court cannot

embark upon an enquiry as to the reliability or genuineness or

otherwise of the allegations made in the FIR or in the complaint.

The Apex Court in the said judgment laid down certain

guidelines/parameters for exercise of powers under Section - 482 of

Cr.P.C., which are 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.

. AIR 2021 SC 931

. (1992) Supp. 1 SCC 335 KL,J Crl.P. No.1652 of 2021

(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

KL,J Crl.P. No.1652 of 2021

(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."

14. In M/s. Neeharika Infrastructure Private Limited v.

State of Maharashtra6, a Three-judge Bench of the Apex Court laid

certain conclusions, for the purpose of exercising powers by High

Courts under Section - 482 of Cr.P.C and also Article - 226 of the

Constitution of India, which are as under:

"....

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;

. AIR 2021 SC 1918 KL,J Crl.P. No.1652 of 2021

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 encyclopedia 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;

KL,J Crl.P. No.1652 of 2021

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."

15. Coming to the case on hand, prima facie, there are specific

allegations levelled against the petitioners herein by respondent No.2

in the complaint filed before the learned Magistrate. It is also

mentioned in the complaint that petitioner No.1 picked up a stick and

beat respondent No.2 on left hand due to which, he received injury on

his left hand ring finger and that petitioner Nos.3 and 5 also beat him

with hands and legs on his back, while petitioner No.5 kicked him on

his stomach etc. Learned Assistant Public Prosecutor also filed copies

of medical certificates, which show that respondent No.2 has taken KL,J Crl.P. No.1652 of 2021

treatment for the injuries received. Learned Magistrate upon

considering the same and also sworn statement of respondent No.2,

referred the complaint to the police for investigation. Pursuant to the

same, the police registered the aforesaid crime for the aforesaid

offences against the petitioners for investigation. Investigation is

pending in the above crime. There are complaint and counter

complaint against each other. Whether the allegations against the

petitioners herein are genuine or not have to be investigated by the

Investigating Officer during inquiry including the allegation that

petitioner No.4 was in abroad and not in India on the alleged date of

incident etc. Therefore, when the investigation by the police is in

progress, it is not proper for this Court to go into the merits of the

allegations in the FIR. Police must be permitted to complete the

investigation. It would be premature to come to a 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 by invoking the powers

of this Court under Section - 482 of Cr.P.C. Even the contention of

the learned counsel for the petitioners that the complaint lacks the

ingredients of the offences alleged against the petitioners cannot be

decided at this stage for quashing the proceedings.

16. It is relevant to note that the learned counsel for the

petitioners contended that despite receipt of notice, respondent No.2

did not appear before this Court and, therefore, the proceedings in

Crime No.24 of 2021 are liable to be quashed on that ground only. In KL,J Crl.P. No.1652 of 2021

Neelu Chopra1, it was held that from the fact that despite service of

notice, the complainant neither appeared before the Court engaging

any counsel to represent her and, therefore, on the said grounds, the

order of the learned Magistrate taking cognizance was quashed.

Whereas, as discussed supra, prima facie, there are specific allegations

against the petitioners herein and there are several factual aspects to

be investigated into by the Investigating Officer. Therefore, according

to this Court, interdicting investigation in the present crime on the

ground of non-appearance of respondent No.2 is not proper.

17. In view of the above authoritative pronouncement of law,

according to this Court, the petitioners failed to make out any ground

to quash the proceedings in Crime No.24 of 2021 and, therefore, the

petition is liable to be dismissed.

18. The present Criminal Petition is, accordingly, dismissed.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 18th July, 2021 Mgr