Abdul Qadir Khan vs Syeda Zarin Saba

S. Ravi Kumar, J.—This Criminal Petition is filed to quash proceedings in C.C. No. 32/2011 on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad for alleged offences punishable u/s 498-A read with 34 IPC and Sections 4 & 6 of Dowry Prohibition Act.

Brief facts leading to filing of this petition are as follows:-

Smt. Syeda Zarin Saba is the wife of Md. Abdul Kabeer Khan, who is first accused in C.C. No. 32/2011 and on the report of said Zarin Saba, Sub-Inspector of Police, Women Police Station, C.C.S., Hyderabad filed charge sheet against four accused and the present petitioner is elder brother of A1. It is the contention of the petitioner that after his marriage in the year 2002, he is living separately at Toli Chowki since 2003 and by the date of marriage between A1 and defacto-complainant, he is living separately and never stayed with defacto-complainant and others. According to petitioner, he was falsely implicated because of his relationship with A1 i.e., husband of defacto-complainant. According to petitioner, as he is not concerned with the allegation of demand of dowry or additional dowry and alleged harassment, the proceedings against him are liable to be quashed.

Heard both sides.

Advocate for petitioner submitted that all the allegations in the complaint are against A1 i.e., husband of defacto-complainant and even the alleged harassment was at New Zealand and the petitioner herein has nothing to do with the matrimonial home. He further submitted that the petitioner was in Canada from 16-09-2006 to 29-11-2008 with his family on account of his job and he had no occasion to live with A1 or defacto-complainant. He further submitted that except a bald allegation of instigation, there is no specific allegation against the petitioner and in view of the law laid down by Hon''ble Supreme Court and this Court, the proceedings against the petitioner have to be quashed. On the other hand, learned Public Prosecutor would submit that police, after full-fledged enquiry, found that petitioner is also responsible for the harassment and therefore, the contentions of the petitioner''s counsel are not tenable. He further submitted that from a reading of charge sheet, it is clear that there are specific allegations against the petitioner also and those have to be decided only during trial and when the allegations prima facie disclose commission of offence, Section 482 Cr.P.C. is not applicable.

Now the point that would arise for my consideration in this petition is whether there are any grounds to exercise powers u/s 482 Cr.P.C. to quash the proceedings against the petitioner.

Point:- Admittedly, A1 is husband of defacto-complainant, A2 & A3 are in-laws and A4 (i.e., petitioner) is elder brother of A1. The main contention of the petitioner is that there are no specific allegations either in the complaint or in the charge sheet against him and he was falsely implicated because of his relationship with husband of defacto-complainant. As per the charge sheet, defacto-complainant lodged a complaint with police on 09-04-2010 making certain allegations against the petitioner and other accused. The said complaint is registered as First Information Report in Crime No. 197/2010 and after investigation, Sub-Inspector of Police, Women Police Station filed charge sheet against the petitioner and three others alleging that they are liable for punishment for the offence u/s 498-A read with 34 IPC and also for the offences under Sections 4 & 6 of Dowry Prohibition Act. According to charge sheet, after the marriage, when the defaco-complainant went to matrimonial house, all the accused started passing remarks against her for not bringing sufficient dowry as per their expectations and started demanding for additional dowry of Rs. 5,00,000/-. It is also alleged in the charge sheet that all the accused used to treat the defacto-complainant as a slave in the matrimonial house and she was not allowed to visit her parents house by putting several restrictions. According to charge sheet allegations, after birth of female child in April 2006, she joined her husband at Singapore and while they were staying at Singapore, A2 to A4 used to instigate A1 over phone, in the result, A1 used to harass her mentally and physically. According to charge sheet allegations, there was demand for additional dowry for securing job for A1 at New Zealand and that the defacto-complainant came back to India and gave birth to a female child in April 2008, and, thereafter, on demand of A2 to A4, parents of defacto-complainant paid one lakh to A2 to A4 in July 2008 for allowing defacto-complainant to join A1 at New Zealand. According to charge sheet allegations, on 15-03-2009, A1 harassed her and caused injuries for which a report was given at New Zealand, and, thereafter, she came back to Hyderabad with her children on 23-03-2009 and after coming over to Hyderabad when she went to her matrimonial house, A2 to A4 put a fresh demand of arranging Rs. 5 lakhs and did not allow her to step into her matrimonial house.

Advocate for petitioner cited some rulings of Supreme Court and this Court for the proposition when the allegations in the charge sheet are vague and not specific, the proceedings against relatives of husband have to be quashed.

In Kans Raj Vs. State of Punjab and Others, , Hon''ble Supreme Court observed that for the fault of husband, the in-laws or other relations cannot, in all cases, be held to be involved in the demand of dowry. It is further held that in cases, where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. In that case, as there was no evidence against the relations of husband, Hon''ble Supreme Court, while setting aside the conviction against the relatives of the husband, made above observations. Here, in this case, the case has not reached that stage and it is only at the stage of framing of charges only.

In Sushil Kumar Sharma Vs. Union of India (UOI) and Others, , Hon''ble Supreme Court clarified the basic distinction between offence of Section 306 IPC & Section 498-A IPC while deciding the constitutional rigidity of the penal provision of Section 498-A IPC. In that case, the Hon''ble Supreme Court clarified the remedial measures that have to be taken to prevent abuse of provisions of Section 498-A IPC as in most of the cases, the complaint given u/s 498-A IPC were found to be not bona fide. The Hon''ble Supreme Court held that it is for the legislature to find out ways how the makers of frivolous complaints or allegations can appropriately dealt with and till then the Courts have to take care of the situation, within the existing frame work. It is further observed that there is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of, that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent.

In N. Suriyakala Vs. A. Mohandoss and Others, , Hon''ble Supreme Court confirmed quashing of proceedings by the High Court, the complaint filed against husband and other family members for an offence u/s 498-A IPC, which was made with a delay of 888 days.

In Atluri Ravindra and others v. State of A.P., and another (CRLP. No. 5702/2005), this Court, while quashing the proceedings against relatives of the husband, observed that without specific overt acts regarding mental and physical harassment roping all the family members into the complaint is not permissible.

In Smt. K. Chandana v. The State of A.P., (CRLP. No. 719/2004) also this Court held that there must be specific overt acts and the alleged instigation over telephone conservation is not accepted in that case.

In Shaik Kusrouddin and others v. State of A.P., and another 2004 (2) ALD (Crl.) 195 (AP), this Court observed on the bald allegations of instigation, complaint against the relatives of the husband cannot be continued.

In Smt. R. Khatun Bee & others v. M. Shasadibi & another (CRLP. No. 3093/2006) and Bodingari Pattabhai Reddy & others v. Veeramreddy Jyothsna & another 2007 (2) ALT (Crl.) 479 (A.P.) also this Court observed in the same lines that on the bald allegations, proceedings against the relatives of the husband cannot be continued.

In Preeti Gupta & Another vs. State of Jharkhand & another (SLP. (Crl.) No. 4684/2009) Hon''ble Supreme Court quashed complaint against unmarried brother and married sister of complainant''s husband on the ground that they neither resided with the complainant in the matrimonial home nor visited it and the allegations of harassment by the husband''s close relatives who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion, such allegations of the complainant are required to be scrutinized with great care and circumspection.

In all the above decisions, the material thereon was very vague and there are no specific overt acts against any of the relatives of the husband in respective cases. But here, in our case, as seen from the charge sheet, there are specific overt acts against the petitioner with regard to demand of additional dowry and harassment and also treatment towards defacto-complainant. Though petitioner contended that he was in Canada from 16-09-2006 to 29-11-2008, it is a defence available to him and the said plea has to be proved by producing appropriate evidence contradicting the statements of prosecution witnesses with regard to the role of the petitioner during that time. Petitioner has not filed any material with this criminal petition to show that he was at Canada from 16-09-2006 to 29-11-2008. Here, the investigating officer, besides examining three relatives of the victim-complainant, also examined two independent witnesses and their 161 Cr.P.C., statements are not before this Court to know what they have stated before the investigating officer in respect of allegations against the petitioner.

In State of Karnataka Vs. M. Devendrappa and Another, , the Hon''ble Supreme Court held as follows:-

"If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the information are of no consequence and cannot by itself be the basis for quashing the proceeding."

So according to the above decisions, the allegations set out in the complaint has to be read as a whole and there should not be meticulous analysis of the case before trial to find out whether the case would end in conviction or acquittal at the stage of 482 Cr.P.C. Here when the complainant made specific allegations against the petitioner with regard to harassment, demand of additional dowry and also instigation that cannot be decided in a quash petition and it can be decided only while appreciating the evidence during trial. On a scrutiny of the material on record and considering the propositions laid down in the above referred decisions, particularly, in State of Karnataka Vs. M. Devendrappa and Another, , I am of the view that there is no material to show that the complaint is mala fide, frivolous or vexatious to exercise the powers u/s 482 Cr.P.C.

For these reasons, it is held that there are no grounds to quash the proceedings in C.C. No. 32/2011 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad. However, since the petitioner is only a relative of husband of the complainant and according to submissions of advocate for petitioner, he has to travel different places on account of his job, his presence for each and every adjournment during trial is dispensed with, but he should attend before the trial Court as and when directed when the trial Court feels that his physical presence is necessary for adjudication of C.C. No. 32/2011 on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad.

With the above observation, the Criminal Petition is dismissed.