MIRZA IQBAL @ GOLU & ANR. versus STATE OF UTTAR PRADESH & ANR. on 14 December 2021

1. Leave granted.F2. This Criminal Appeal is filed aggrieved by the order dated10.12.2018 passed by the High Court of Judicature at Allahabad inApplication No.44475 of 2018.

3. The aforesaid application was filed before the High Court underSection 482 of Cr.P.C. for quashing the Chargesheet No.01 of 2018Gdated 12.10.2018 and order of Chief Judicial Magistrate, taking cognizanceof the case vide order dated 22.10.2018 for the offences punishableunder Sections 498-A, 323, 504, 506, 304-B of IPC and Sections 3 & 4of the Dowry Prohibition Act, 1961 (D.P. Act) in Case Crime No.0136of 2018 registered on the file of PS-Kotwali, District Gorakhpur.

H

4. The 2[nd] respondent – complainant Shri Nisar Ullah father ofthe deceased, Rushda Nisar has lodged a complaint on 25.07.2018 at09:31 p.m. at PS-Kotwali, District Gorakhpur to the effect that his youngerdaughter namely Rushda Nisar was married to Mirza Ismail Beg aliasAmir s/o Zaki Ullah r/o Mohalla-Muftipur of Gorakhpur District on25.12.2015. After the solemnization of marriage, the accused personsMirza Ismail Beg alias Amir (husband), brother-in-law (devar) MirzaIqbal alias Golu (1[st] Appellant herein), sister-in-law (nanad) Hifza aliasChinki and mother-in-law (saas) Sammi (2[nd] Appellant) continuously usedto demand a four-wheeler vehicle and Rs.10,00,000/- in cash as dowry.It is alleged that as the said demands were not met, they used to beat hisdaughter and threatened to kill her. It is, further, alleged that ten daysprior to the date of incident, all the accused persons with a commonintention had severely beaten up his daughter and threatened to kill, ifthe demands of dowry of cash and car were not met. On being compelled,he had also given an amount of Rs.2,70,000/- cash from his businessearning, in spite of the same, accused was adamant in demanding thecar. On 24.07.2018 at about 8 p.m., the accused persons with a commonintention beat his daughter, killed her by putting a noose around her neckand hanged her. On coming to know of the incident, he went along withhis son from Surat and he was shocked to see his daughter in such astate. When the situation has become slightly normal, he has lodged areport to take necessary action and to initiate legal proceedings againstthe accused. Based on the aforesaid complaint, a case was registeredagainst all the named accused including the appellants herein, who arebrother-in-law and mother-in-law of the deceased for the alleged offencesunder Sections 498-A, 323, 504, 506, 304-B of IPC and Sections 3 & 4of the D.P. Act.

5. When the appellants have filed quash petition before the HighCourt, it was disposed of by impugned order directing the appellants tosurrender before the Court below and apply for grant of bail and thesame was directed to be considered in accordance with law.

6. Pursuant to the complaint, crime was registered and afterregistration, investigation was taken up and after completing theinvestigation, final report was filed on 12.10.2018 and the same wastaken cognizance by learned Chief Judicial Magistrate by order dated22.10.2018.

AB

C

DE

F

G

H

A7. We have heard Ms. Vibha Datta Makhija, learned SeniorCounsel appearing on behalf of the appellants and Mr. Sahdev Singh,learned counsel for State of Uttar Pradesh and Mohd. Asad Khan,learned counsel for the respondent no.2/Complainant.

8. Learned senior counsel appearing for the appellants hasBcontended that the 1[st] Appellant herein, is brother-in-law of the deceasedis working as a Cashier in ICICI Bank, Khalilabad. On the date of incidenti.e. on 24.07.2018, he was on duty. It is submitted that he resides atKhalilabad in view of his employment in ICICI Bank and his mother–2[nd]Appellant Shamima Bano alias Sammi is also living with him at Khalilabadsince 2017. It is submitted that even as per the case of the prosecution,Cthe incident has taken place at about 8 p.m. at Gorakhpur, which is 40kms away from Khalilabad. On the date of incident, he was on duty atICICI Bank and entered the branch at 09:49 a.m. and came out at 06:25p.m. In spite of the same, on vague and bald allegations, appellants aresought to be prosecuted, without any specific allegations either inDcomplaint or in the chargesheet. It is submitted that during the pendencyof investigation, the appellant has filed affidavit before the SeniorSuperintendent of Police, District Gorakhpur, stating that he was in theBank on the date of incident and requested to investigate by looking intothe call details of his mobile number and also CCTV footage of thebank. It is submitted that his sister-in-law i.e. the deceased was underEmental depression and was undergoing treatment for the same. It issubmitted that in spite of such an affidavit filed by the appellants withoutany investigation, in a casual and routine manner, final report was filedwith vague and omnibus allegation against the appellants. It is submittedthat in absence of any specific allegations against the appellants disclosing Ftheir active involvement, the learned Chief Judicial Magistrate has takencognizance in a routine and mechanical manner. It is submitted that asthere is no material or any specific allegations against the appellants/accused and if they are allowed to face the trial, it is nothing but abuseof the process of law. Learned counsel has submitted that it is evidentlya fit case to quash the proceedings, by allowing the appeal.G

9. On the other hand, learned counsel appearing for 1[st] respondent-State and 2[nd] respondent-Complainant, have submitted that in view ofspecific mention of the names in the complaint as well as in thechargesheet, it is not a case to quash the proceedings at this stage. It issubmitted that the appellants have to prove their innocence in the trial. ItH

is submitted that all the accused were demanding dowry of Rs.10,00,000/- and a car from the deceased and on 24.07.2018 with a commonintention, all of them caused injuries to the deceased and ultimately killedher. It is submitted that as the postmortem report clearly reveals causeof death as asphyxia, there are no grounds to quash the proceedings.Further, it is submitted that the quash petition filed by the sister-in-law ofthe deceased was dismissed by this Court vide order dated 15.04.2019.

10. Having heard the learned counsels on both the sides, We havecarefully perused impugned order, other material placed on record andcounter affidavits filed on behalf of 1[st] Respondent–State as well as onbehalf of 2[nd] Respondent–complainant.

11. The appellants are brother-in-law and mother-in-lawrespectively of the deceased. A perusal of the complaint filed by the 2[nd]respondent, pursuant to which a crime was registered, does not indicateany specific allegations by disclosing the involvement of the appellants.It is the specific case of the 1[st] appellant that he was working as acashier in ICICI Bank at Khalilabad branch, which is at about 40 kmsfrom Gorakhpur. The alleged incident was on 24.07.2018 at about 8p.m. When the investigation was pending, the 1[st] appellant has filedaffidavit before Senior Superintendent of Police on 08.08.2018, givinghis employment details and stated that he was falsely implicated. It washis specific case that during the relevant time, he was working at ICICIBank, Khalilabad branch, Gorakhpur and his mother was also stayingwith him. The Branch Manager has endorsed his presence in the branch,showing in-time at 09:49 a.m. and out-time at 06:25 p.m. Even in thestatement of 2[nd] respondent recorded by the police and also in the finalreport filed under Section 173(2) of Cr.P.C., except omnibus and vagueallegations, there is no specific allegation against the appellants to showtheir involvement for the offences alleged. This Court, time and again,has noticed making the family members of husband as accused by makingcasual reference to them in matrimonial disputes. Learned senior counselfor the appellants, in support of her case, placed reliance on the judgmentof this Court in the case of Geeta Mehrotra and Anr. v. State of UttarPradesh and Anr.[1]. In the aforesaid case, this Court in identicalcircumstances, has quashed the proceedings by observing that familymembers of husband were shown as accused by making casual referenceto them. In the very same judgment, it is held that a large number of AB

C

D

E

F

G

Afamily members are shown in the FIR by casually mentioning their namesand the contents do not disclose their active involvement, as such, takingcognizance of the matter against them was not justified. It is further heldthat taking cognizance in such type of cases results in abuse of judicialprocess. Paras 18 and 25 of the said judgment, which are relevant forthe purpose of this case, read as under:B

“18. Their Lordships of the Supreme Court in Ramesh case[(2005)3 SCC 507 : 2005 SCC (Cri) 735] had been pleased tohold that the bald allegations made against the sister-in-law by thecomplainant appeared to suggest the anxiety of the informant torope in as many of the husband’s relatives as possible. It was heldCthat neither the FIR nor the charge-sheet furnished the legal basisfor the Magistrate to take cognizance of the offences allegedagainst the appellants. The learned Judges were pleased to holdthat looking to the allegations in the FIR and the contents of thecharge-sheet, none of the alleged offences under Sections 498-DA, 406 IPC and Section 4 of the Dowry Prohibition Act weremade against the married sister of the complainant’s husband whowas undisputedly not living with the family of the complainant’shusband. Their Lordships of the Supreme Court were pleased tohold that the High Court ought not to have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings against theEappellants were quashed and the appeal was allowed.

D

D

25. However, we deem it appropriate to add by way of cautionthat we may not be misunderstood so as to infer that even if thereare allegations of overt act indicating the complicity of the membersof the family named in the FIR in a given case, cognizance wouldbe unjustified but what we wish to emphasise by highlighting isthat, if the FIR as it stands does not disclose specific allegationagainst the accused more so against the co-accused specially in amatter arising out of matrimonial bickering, it would be clear abuseof the legal and judicial process to mechanically send the namedaccused in the FIR to undergo the trial unless of course the FIRdiscloses specific allegations which would persuade the court totake cognizance of the offence alleged against the relatives of themain accused who are prima facie not found to have indulged inphysical and mental torture of the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that F

G

H

if the FIR did not disclose the commission of an offence, the courtwould be justified in quashing the proceedings preventing the abuseof process of law. Simultaneously, the courts are expected to adopta cautious approach in matters of quashing, especially in cases ofmatrimonial disputes whether the FIR in fact discloses commissionof an offence by the relatives of the principal accused or the FIRprima facie discloses a case of overimplication by involving theentire family of the accused at the instance of the complainant,who is out to settle her scores arising out of the teething problemor skirmish of domestic bickering while settling down in her newmatrimonial surrounding.”

12. From a perusal of the complaint filed by the 2[nd] respondentand the final report filed by the police under Section 173(2) of Cr.P.C.,We are of the view that the aforesaid judgment fully supports the caseof the appellants. Even in the counter affidavits filed on behalf ofrespondent nos.1 and 2, it is not disputed that the 1[st] appellant was workingin ICICI Bank at Khalilabad branch, but merely stated that there was apossibility to reach Gorakhpur by 8 p.m. Though there is an allegation ofcausing injuries, there are no other external injuries noticed in thepostmortem certificate, except the single ante-mortem injury i.e. ligaturemark around the neck, and the cause of death is shown as asphyxia.Having regard to the case of the appellants and the material placed onrecord, we are of the considered view that except vague and baldallegations against the appellants, there are no specific allegationsdisclosing the involvement of the appellants to prosecute them for theoffences alleged. In view of the judgment of this Court in the case ofGeeta Mehrotra and Anr.[1], which squarely applies to the case of theappellants, we are of the view that it is a fit case to quash the proceedings.

13. For the aforesaid reasons, this appeal is allowed and theimpugned order dated 10.12.2018 passed in Application No.44475 of2018 by the High Court, is set aside. Consequently, the chargesheetno.01 dated 12.10.2018 filed in FIR No.136 of 2018 on the file of PS-Kotwali, District Gorakhpur for the offences under Sections 498-A, 323,504, 506, 304-B of IPC and Sections 3 & 4 of the D.P. Act and theconsequential order dated 22.10.2018, passed by the Chief JudicialMagistrate, Gorakhpur, is hereby quashed.

AB

C

D

E

F

G

H