"8. Shri Amarendra Sharan, learned senior counsel for the appellants has urged that the statements/averments made in the complaint petition, even if taken to be correct, do not make out any offence against any of the accused appellants either under Sections 498A or 406 of the Penal Code, as alleged. Shri Sharan has laid stress on the fact that there is no averment in the complaint petition with regard to any demand for dowry by the appellants; or of any ill-treatment of the respondent by the appellants or commission of any act in connection with any such demand which could amount to 'Cruelty' within the meaning of Section 498A, Indian Penal Code. Shri Sharan has also urged that no where in the complaint petition entrustment within the meaning of Section 405 of the Penal Code has been alleged against the appellants so as to even prima facie make the appellants liable for the offence under Section 406 of the Penal Code.
9. We disagree. 'Cruelty' as defined in the Explanation to Section 498A of the Penal Code has a twofold meaning. The contentions of Shri Sharan do not deal with the Explanation (a) and is exclusively confined to the meaning dealt with by Explanation (b). Under Explanation (a) conduct which is likely to cause injury or danger to life, limb or health (mental or physical) would come within the meaning of the expression 'Cruelty'. While instances of physical torture would be plainly evident from the pleadings, conduct which has caused or is likely to cause mental injury would be far more subtle. Having given our anxious consideration to the averments made in the complaint petition, we are of the view that the statements made in the relevant paragraphs of the complaint can be understood as containing allegations of mental cruelty to the complainant. The complaint, therefore, cannot be rejected at the threshold.
10. The facts, as alleged, therefore will have to be proved which only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. Appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.
Equivalent Citation: 2015(4)BomCR(Cri)558,2016 ALLMR(cri)980
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Application No. 1684 of 2014
Decided On: 20.07.2015
Appellants: Muzhir Ahmed Itbar Khan and Ors.
Vs.
Respondent: The State of Maharashtra and Ors.
Vs.
Respondent: The State of Maharashtra and Ors.
Hon'ble Judges/Coram:S.S. Shinde and A.I.S. Cheema, JJ.
1. Rule, returnable forthwith. By consent of parties, taken up for final hearing.
This Criminal Application, under Section 482 of Criminal Procedure Code, is filed taking exception to the Charge-sheet No. 39/2014 and registration of proceeding in R.C.C. No. 70/2014, pending on the file of learned Judicial Magistrate First Class, Amalner, District Jalgaon. These proceedings are arising out of registration of Crime No. 06/2014 registered with Amalner Police Station, Amalner, District Jalgaon, for the offences punishable under Section 498-A, 323, 504, 506 r/w. 34 of IP Code, by the respondent No. 2 herein.
2. The learned counsel appearing for the applicants submit that, even if the allegations in the FIR are considered in its entirety, no offences are disclosed against the applicants as alleged by the complainant. It is submitted that, the applicant Nos. 1, 3 and 4 are the real brothers. The applicant No. 2 is mother of the other applicants. The applicant No. 2 is bedridden from last 10 years and suffering from serious ailments, and therefore, by no stretch of imagination, the allegations levelled against her in the FIR are probable. It is submitted that, her age is 74 years. The applicant No. 3 is serving as Engineer in Mahindra Company at Mumbai. The applicant No. 3 has permanent residence at Pune and he serves in Mumbai alone. The applicant No. 4 is serving in Company as Engineer. It is submitted that, the applicant No. 1 has given Talaq to complainant and communicated by RPAD. The words of Talaq are communicated thrice i.e. on 28th October, 2013, 7th December, 2013 and 10th January, 2014, and therefore, the FIR lodged by the complainant is an afterthought. It is submitted that, there are general allegations in the complaint. No any specific overt act is attributed to any specific applicants. The learned counsel invited our attention to the averments in the application, annexure thereto, and submits that, the application deserves to be allowed.
3. The learned counsel appearing for the applicants invited our attention to the Judgment of the Supreme Court in the case of M. Mohan Vs. State Represented by The Deputy Superintendent of Police MANU/SC/0161/2011 : 2011 AIR [SC] 1238 and in the case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. MANU/SC/0592/2010 : 2010 [7] SCC 667 and submits that, if the allegations in the FIR are tested in the light of the observations of the Supreme Court in afore-mentioned Judgments, those allegations are too vague and general in nature, and therefore, the proceedings based on such allegations would be exercised in futility and abuse of process of Court.
4. The learned counsel appearing for the Respondent No. 2 invited our attention to the affidavit-in-reply filed by the respondent No. 2 and submits that, the applicant Nos. 3 and 4 are on visiting terms regularly to the Amalner to see their parents and they are not permanent resident of Pune and Mumbai. It is submitted that, the allegations made in the application are totally baseless. The complainant executed security bond for good behaviour on 08.07.2013 at Malegaon, keeping in view interest of two daughters and one son though she was being continuously ill-treated by the applicants. It is submitted that, the applicant No. 4 started construction of his plot at Amalner on 4th February, 2012. He was in need of money. All the applicants, in collusion with each other, demanded Rs. 3 lacs from the father of complainant. When the complainant told that, her father is not having such amount, the husband, mother-in-law and brother-in-law told complainant to ask her father to sell the truck owned by him and bring the money. Upon refusal, all the applicants became angry and beaten the complainant by slaps and fist blows. The complainant informed her father about beating by the applicants. It is submitted that, the father and brother of the respondent No. 2 sold their truck and paid the amount of Rs. 3 lacs to the husband and mother-in-law for maintaining the complainant in proper manner. However, on Miscellaneous count, the husband and mother-in-law used to threaten and insult her. In the year 2013, there was quarrel between the husband and complainant on trifle reason. The husband and mother-in-law and brother-in-law had abused her and they removed three children from her custody and she was driven out from the house and then she was residing with her parents. The applicants have restrained her from residing with her children from the period of three months and after residing at Malegaon, she came to in-laws house for cohabitation, at that time mother-in-law asked the complainant to stay on 1st floor and the husband was staying with mother-in-law. The applicants were ill-treating to the respondent No. 2 and mother-in-law had asked to the respondent No. 2 to stay in a room at ground floor and mother-in-law put on gas at that time the complainant asked her as to why gas is put on by her, at that time mother-in-law said that, inadvertently it was put on.
5. The learned counsel appearing for the respondent No. 2 invited our attention to the specific instance in the complaint on 29.11.2013 and submits that, the husband, mother-in-law, brother-in-law had quarrel with the complainant and abused her and they were saying that, they will give divorce to her. The complainant was again driven out from the house. It is submitted that, for saving educational career of the children, she is residing at Shah Alam Nagar, Amalner in a rented house. On 20th December, 2013 at about7.00 p.m. while respondent No. 2 was residing with children and father at that time the applicants again abused her and gave slaps and fist blows. It is submitted that, the execution of security bond by the complainant was only with a view to protect interest of the children. The learned counsel also invited our attention to the other averments in the affidavit-in-reply and submits that, the prosecution agency has collected sufficient material to prosecute the applicants. The allegations in the FIR will have to be taken as it is and can be tasted only during the course of trial. It is submitted that, one Rafik Shaikh Gamir and Muktar Shaikh Usman, who are independent witnesses, have also supported the prosecution case, and therefore, this Court may not entertain this Criminal Application.
6. The learned APP invited our attention to the investigation papers and the statement of the witnesses and submits that, sufficient material is collected by the prosecution agency and same can be tested only during trial.
7. We have given careful consideration to the submissions of the learned counsel appearing for the applicants, learned APP appearing for the Respondent-State and the learned counsel appearing for the respondent No. 2. With their able assistance, we have carefully perused the averments in the Application, annexure thereto, reply filed by the respondent No. 2 and all other documents, which are placed on record, including the statements of the witnesses.
8. Upon careful perusal of the allegations in the FIR, there are allegations against all the applicants. The specific instances are quoted in the FIR. The complainant has narrated the incident of 29.11.2013 in the complaint. As rightly submitted by the learned APP for the Respondent - State and the learned counsel appearing for the complainant, one Rafik Shaikh Gamir, an independent witness, has stated the incident, which had taken place on 20th December, 2013 at about 6.30 in the evening. The relevant portion from his statement reads thus:
Muktar Shaikh Usman has also stated that, husband of Yasmin i.e. complainant was asking him why he has given his house on rent to her. There is also statement of one Musa Shaikh Gulbar, an independent witness, wherein he has specifically stated the incident of 20.12.2013. His version in the statement reads thus:
There are other witnesses who have given statements. Upon considering the material placed on record, the allegations against all the applicants prima facie appears to be specific and supported by the prosecution witnesses. The prosecution agency has collected sufficient material so as to try the case. Therefore, keeping in view the material collected by the prosecution agency, we do not deem it appropriate to entertain the Application and adjudicate disputed questions of fact. The defence of the applicants that, whether the applicants are residing at other places than the places of the husband or ailments of the respondent No. 2 can be considered by the trial Court and it is not desirable to go into such defences when we are satisfied that the prosecution agency has collected sufficient material for trial. The Supreme Court in the case of Bhaskar Lal Sharma and another V/s. Monica and others MANU/SC/0105/2014 : 2014 (2) Mh.L.J. (Cri.) 442 while explaining the scope of Section 498A and exercise of powers of the High Court under Section 482 of Criminal Procedure Code in paras 8, 9 and 10 held thus:-
"8. Shri Amarendra Sharan, learned senior counsel for the appellants has urged that the statements/averments made in the complaint petition, even if taken to be correct, do not make out any offence against any of the accused appellants either under Sections 498A or 406 of the Penal Code, as alleged. Shri Sharan has laid stress on the fact that there is no averment in the complaint petition with regard to any demand for dowry by the appellants; or of any ill-treatment of the respondent by the appellants or commission of any act in connection with any such demand which could amount to 'Cruelty' within the meaning of Section 498A, Indian Penal Code. Shri Sharan has also urged that no where in the complaint petition entrustment within the meaning of Section 405 of the Penal Code has been alleged against the appellants so as to even prima facie make the appellants liable for the offence under Section 406 of the Penal Code.
9. We disagree. 'Cruelty' as defined in the Explanation to Section 498A of the Penal Code has a twofold meaning. The contentions of Shri Sharan do not deal with the Explanation (a) and is exclusively confined to the meaning dealt with by Explanation (b). Under Explanation (a) conduct which is likely to cause injury or danger to life, limb or health (mental or physical) would come within the meaning of the expression 'Cruelty'. While instances of physical torture would be plainly evident from the pleadings, conduct which has caused or is likely to cause mental injury would be far more subtle. Having given our anxious consideration to the averments made in the complaint petition, we are of the view that the statements made in the relevant paragraphs of the complaint can be understood as containing allegations of mental cruelty to the complainant. The complaint, therefore, cannot be rejected at the threshold.
10. The facts, as alleged, therefore will have to be proved which only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. Appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.
Recently, the Hon'ble Supreme Court in the case of Taramani Parakh Vs. State of M.P. & Ors. MANU/SC/0285/2015 : 2015 [2] Bom. C.R. [Cri.] 453 in para 15 observed that, the question whether the appellant has infact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.
9. Since the applicants will have to face the trial, it is not desirable to make further observations on merits, which would affect the case of the applicants.
10. In the light of discussion in the foregoing paragraphs, Application stands rejected. We make it clear that, the observations made herein above are prima facie, and the trial Court should not get influenced by the said observations, during the course of trial. Rule stands discharged.
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