Court: JHARKHAND HIGH COURT
Bench: JUSTICE Hari Shankar Prasad
HAMIDAN KHATOON & ORS. Vs. STATE OF JHARKHAND & ANR. On 28 April 2004
FIR lodged with ulterior motive by way of causing harassment : Its continuance will be abuse of process of Court : Criminal proceedings quashed.
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceeding initiated under Jagarnathpur P.S. Case No. 111 of 2002 corresponding to G.R. No. 2875 of 2002.
2. Facts giving rise to the prosecution case are that Zohra Khatoon, informant-O.P. No. 2 filed a written complaint before officer-in-charge, Jagarnathpur P.S. stating therein that she was married with Jamil Akhtar according to Mohammedan Law on 5.5.1992 and at that time, Mehar amount of Rs. 5,101/- besides maintenance was fixed and at the time of her departure to her sasural, her father had given articles worth rupees one lakh including jewellery, furniture and utensils, etc. Soon after marriage she was being pressurized and tortured for illegal demand. She has further stated that out of wedlock two children were born, namely, Khalid Akhtar aged eight years and Mujahid Akhtar four years respectively. Her father had given rupees fifty thousand in cash before Nikah. Thereafter her mother-in-law Hamidan Khatoon, her Nanad Nasira Khatoon and her (Nanad’s) husband Nazmul Ansari and her elder Nandosi Hakim Ansari started torturing in various ways. They have sprinkled k. oil on her but due to shame she did not disclose it to anybody. Thereafter she informed her relation who persuaded them not to do so, but thereafter also torture continued on her. She was not provided food and was kept locked in a room so that she may not meet anybody. Further, her husband for the last four or five years had developed illicit relationship with one Olga Pentoni who was nurse in C.I.P., Mental Hospital, Kanke as her husband was clerk in that very hospital. She had seen several times both of them indulged in illegal activities and when she persuaded them not to do so, her husband assaulted her and even threatened to divorce her. According to the Rule, a Government Servant cannot keep more than one wife and her father had once given in writting on 18.7.2002 to the Director, C.I.P. She had one house at Kanke standing in her name which her husband (petitioner No. 1) got it sold and kept the money with him and when she demanded money, he got her signature on a blank paper and kept the paper with him. Further, when he came to know that her father has taken VRS from HEC, then he pressed her to demand rupees one lakh and one Yamaha motorcycle from her father but her father is unable to meet this illegal demand because he had got other children also. She has been living for the last six-seven months in her naihar to avoid torture on her by her sasural people. She even went to her sasural but she was always assaulted. On 8.8.2002 accused persons came to her naihar and demanded one lakh of rupees and one motorcycle but that demand was refused by her father, then they snatched her younger son Mujahid Akhtar and went away with him. Thereafter on 8.10.2002 she went with her father and other to her sasural so that she may live with her husband but they refused to keep her and threatened that if demand of money and motorcycle is not fulfilled, in that case he will divorce her. Then her father requested them to return the articles given in dowry but that prayer was refused. Then she is lodging this case. On this piece of information stated in the written statement, Jagarnathpur PS Case No. 111 of 2002, under Sections 498-A/323/420 of the Indian Penal Code.
3. In pursuance of the notice, O.P. No. 2 appeared through Vakalatnama.
4. Heard learned Counsel for the parties.
5. Learned Counsel appearing for the petitioners submitted that O.P. No. 2 besides the instant case, had brought a complaint case against her husband and others being Complaint Case No. 664 of 2002 on 11.10.2002 in the Court of Chief Judicial Magistrate, Ranchi under Sections 420, 406, 498-A, 307, 341, 467, 468, 342, 323 and 34 of the Indian Penal Code besides under Sections 3 and 4 of the Dowry Act. It was further pointed out that this complaint case was filed with similar allegation as contained in the FIR on the basis of which, Jagarnathpur P.S. Case No. 111, of 2002 has been registered. It is submitted that O.P. No. 2 while lodging an FIR being Jagarnathpur P.S. Case No. 111 of 2002 has suppressed the filing of this complaint case. It was further pointed out that this is not the end of the matter but on 23.11.2002 O.P. No. 2 as informant filed a complaint case being Complaint Case No. 715 of 2002 against Jamil Akhtar and Olga Pentoni under Section 497 of the Indian Penal Code in the Court of Chief Judicial Magistrate, Ranchi alleging therein that they have entered into illegal relationship with each other. In the said complaint case, the informant O.P. No. 2 in para 10 stated that her father met the petitioners on 8.10.2002 but due to illegal relationship between the accused persons of Complaint Case No. 715 of 2002, they were not ready to keep her. In the complaint case being Complaint Case No. 715 of 2002 she suppressed the fact that she has already lodged an FIR and a complaint case being Complaint Case No. C-664 of 2002 against the petitioners for demand of dowry and illegal relationship with a lady and categorically stated in para 11 of the complaint case that during the period from 8.10.2002 to 23.11.2002 i.e., filing of the Complaint Case No. 715 of 2002, she and others were trying to settle the complaint case. It was also pointed out that the learned Chief Judicial Magistrate, Ranchi dismissed the Complaint Case No. C-664 of 2002 by a reasoned order (Annexure 4). Thereafter, another Complaint Case No. 715 of 2002 was also dismissed on 23.12.2002 holding that there is no merit in the case (Annexure 5). It was also pointed out that Jamil Akhtar, petitioner No. 3 divorced her wife O.P. No. 2 on 8.10.2002 according to Mohammedan Law by pronouncing Talak thrice irrevocably duly informing the Anjuman Islamia, Pundag and the persons of the complaint through a legal notice sent to the informant-O.P. No. 2 about the said divorce on 8.12.2002 and the same was duly received by the informant on 10.10.2002 (Annexures 6 and 6A). It was also pointed out that a report from the postal authority has been obtained, from perusal of which it will appear that Talaq notice has been received by the informant O.P. No. 2 on 10.10.2002. It was also pointed out that criminal proceeding in G.R. No. 2875 of 2002 is based upon suppression of material facts by the O.P. No. 2 and the present petitioners are being harassed and it will not be out of place to say that upon fact, alleged case will not end in conviction of the petitioners and it will be an abuse of the process of the Court if proceeding continues and it will also be in violation of the principle as laid down under Article 20 of the Constitution of India. It was also pointed out that after receipt of notice of divorce pronouncement by Jamil Akhtar, petitioner No. 3, O.P. No. 2 lodged this FIR on 17.10.2002, by manufacturing allegation against him and other petitioners and, therefore, this criminal proceeding is fit to be quashed in the facts and circumstances of the case.
6. On the other hand, learned Counsel for the O.P. No. 2 submitted that this criminal proceeding initiated on the basis of Jagarnathpur P.S. Case No. 111 of 2002 contains allegations levelled against the petitioners is of serious nature and Complaint Case No. C-664 of 2002 was not decided after full trial and, therefore, on the same facts and allegation, another case can be lodged. Learned Counsel further pointed out that so far as Complaint Case No. 715 of 2002 is concerned, that case was brought against the petitioner No. 3 Jamil Akhtar and one Olga Pentoni but that case was brought under different sections and that has no connection with this Jagarnathpur P.S. Case No. 111 of 2002 because this case has been brought under Section 498-A and other sections and allegations are from the period 8.8.2002 to 8.10.2002. It was also pointed out that documents like legal notice, etc. cannot be considered at this stage and that can be considered at the time of trial only.
7. On perusal of records and after hearing submissions of parties, it is clear that prior to lodging of written complaint before officer-in-charge, Jagarnathpur P.S., on the basis of which Jagarnathpur P.S. Case No. 111 of 2002 registered under different sections against the petitioners O.P. No. 2 had filed Complaint Case No. C-664 of 2002, under different sections besides 498-A of the Indian Penal Code against the petitioners and that case was dismissed. Further, that complaint case was virtually lodged under the same sections under which this FIR has been lodged and this complaint case was lodged on 11.10.2002 and the Complaint Case No. C-664 of 2002 was dismissed vide Annexure 4, on the ground that since date of filing of the complaint case, no steps on behalf of the complainant were taken and, therefore, complaint case was dismissed without full-fledged trial. Further, Complaint Case No. 715 of 2002 was also dismissed after holding inquiry under Section 202 of the Code of Criminal Procedure and was dismissed under Section 203 of the Code of Criminal Procedure by the learned Magistrate as the learned Magistrate found no prima facie case for proceeding in the matter. The instant FIR has been lodged on 17.10.2002 and prior to that as alleged, O.P. No. 2 had already received notice of divorce was received by O.P. No. 2 on 10.10.2002 and thereafter on 11.10.2002 she filed a complaint case bearing No. 664 of 2002 under the same sections and same Acts, under which this Jagarnathpur P.S. Case No. 111 of 2002, on basis of the written complaint, has been registered and that Complaint Case No. C-664 of 2002 was dismissed. Similarly, this FIR has also been lodged on 17.10.2002 after receipt of the notice of divorce. The allegation is alleged from 8.8.2002 to 8.10.2002 and prior to the receipt of notice of divorce, no case was filed by the O.P. No. 2 against the petitioners. The FIR has been lodged with ulterior motive by way of causing harassment and its continuance will be an abuse of the process of the Court.
8. In that view of the matter, this application is allowed and the entire criminal proceeding under Jagarnathpur P.S. Case No. 111 of 2002 corresponding to G.R. No. 2875 of 2002, is hereby quashed.
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