In Crl.O.P.(MD) No.12120 of 2016, the petitioner seeks to withdraw the case in C.C.No.81 of 2015 on the file of the learned District Munsif-cum- Judicial Magistrate, Bodiynayakanur and transfer the same to any other Court situated in some other District. Crl.O.P.(MD) No.1401 of 2017 has been filed, seeking to quash the case in C.C.No.81 of 2015 on the file of the learned District Munsif-cum-Judicial Magistrate, Bodinayakkanur, Theni District.
2. Heard Mr.Haja Mohideen, learned counsel for the petitioners and Mr.M.A.M.Raja, learned counsel appearing for the respondent. For the sake of convenience, the parties will be referred to by their name.
3. The factual matrix of the case is as follows:
i) The Nikkah of Mydeen Batcha (A1) with Naseema (complainant) was solemnized on 28.10.2007 in accordance with the Muslim customs and rituals. Their marriage ran into rough weather, resulting in Naseema, lodging a complaint against Mydeen Batcha and his family members, based on which, a case in All Women Police Station, Bodi Crime No.3 of 2009 was registered on 25.06.2009 for offences under
Sections 498(A),406 and
506(i) IPC r/w Section 4 of Tamil Nadu Women Harassment Act against Mydeen Batcha and his family members. After registration of the FIR, it appears that Mydeen Batcha and Naseema buried their hatchet and resolved to reunite, pursuant to the intervention of elders and well-wishers of the local Jamaath. Therefore, Naseema filed a petition in Cr.M.P.No.7803 of 2009 before the District Munsif-cum-Judicial Magistrate, Utthamapalayam, where the case in Crime No.3 of 2009 was pending and gave a statement that she is willing to bury her differences with Mydeen Batcha and withdraw the complaint in the interest of her one month old child.
ii) On the strength of her statement to the Magistrate, the Police closed the investigation in Crime No.3 of 2009 on 31.07.2009. After getting extricated from the criminal prosecution, Mydeen Batcha went back on his words of taking back Naseema and pronounced Triple Talaq on 04.03.2010, which was communicated through an Advocate's notice dated 08.04.2010 to Naseema. Naseema became upset with the conduct of Mydeen Batcha and therefore, she filed a suit in O.S.No.147 of 2010 before the Sub Court, Theni for declaring the Triple Talaq as null and void. The said suit was decreed on 16.12.2014, challenging which Mydeen Batcha filed A.S.No.5 of 2015 before the District Court, Theni, which was allowed on 30.11.2015.
iii) While so, challenging the Appellate Court order, Naseema preferred S.A.(MD) No.158 of 2016 before this Court and this Court had granted stay of the judgment and decree of the 1st Appellate Court in A.S.No.5 of 2015. During the pendency of this civil litigation, Naseema filed a private complaint before the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur against Mydeen Batcha, his parents, his sisters and their husbands for offences under
Sections 120-B and
420 IPC, on the ground that after having agreed to take her back, the accused had gone back on their words after the investigation in Crime No.3 of 2009 was closed. The private complaint was initially numbered as Cr.M.P.No.156 of 2015 and the sworn statement of Naseema and her father were recorded on 06.03.2015 and 30.04.2015. On 21.05.2015, learned District Munsif-cum-Judicial Magistrate, Bodinayakanur took cognizance of the offences under
Sections 120-B and
420 IPC and directed the complaint to be numbered as a regular case, pursuant to which, the complaint was numbered as C.C.No.81 of 2015.
iv) Learned District Munsif-cum-Judicial Magistrate, Bodinayakanur issued process to the accused returnable by 31.07.2015 and subsequently, passed the following order:
"31.07.2015 Complainant present summons for A1 to A4, A6, A7, A9 intimation given, service held sufficient, called absent. I/NBW to A1 to A4, A6, A7, A9 and A5 summon returned an insufficient address. Service held not sufficient. A8 summon not yet returned. I/Fs to A5, A8 on process by 28.08.2015."
The postman had gone to serve the envelope to Mydeen Batcha and since Mydeen Batcha was not in his house, an intimation was left, directing him to come to the Post Office and collect the envelope sent by the Court, despite which, Mydeen Batcha did not care to collect the same. Therefore, the envelope was returned un-served.
v) Under such circumstances, learned Magistrate issued a Non Bailable Warrant against Mydeen Batcha (A1) to be executed by the Inspector of Police, Bodi Town Police Station and since the Police were dragging their feet and not executed the warrant, Naseema filed Crl.O.P.(MD) No.17000 of 2015 under
Section 482 Cr.P.C. for a direction to the Police to execute the Non Bailable Warrant issued by the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur against the accused in C.C.No.81 of 2015, in which, this Court, on 02.08.2015, issued the following direction:
"4.Considering the said submission, the third respondent is directed to take effective steps to execute the Non Bailable Warrant issued in C.C.No.81 of 2015 against the accused above mentioned, as expeditiously as possible."
vi) Naseema issued a legal notice on 21.12.2015 to the Superintendent of Police, Theni District, Deputy Superintendent of Police, Bodinayakanur, Theni District and the Inspector of Police, Bodi Town Police Station, Bodinayakanur, Theni District, threatening to take contempt action against them if they do not comply with the order dated 02.08.2015 passed by this Court in Crl.O.P.(MD) No.17000 of 2015 for not executing the warrant.
vii) In the meanwhile, apprehending arrest pursuant to the warrant issued by the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur, Mydeen Batcha (A1) and his family members filed Crl.O.P.(MD) No.715 of 2016 for anticipatory bail, in which this Court passed the following order on 18.01.2016:
"4. Considering the fact that non bailable warrant was issued against the petitioners for their absence, there shall be a direction to the petitioners to surrender before the learned District Munsif-cum-Judicial Magistrate, Bodinayakanoor, and to file a petition for recalling the warrant and the learned District Munsif-cum-Judicial Magistrate, Bodinayakanoor is directed to consider the same on the same day and pass orders on merits in accordance with law."
viii) On 14.02.2016, the Police executed the warrant by arresting Mydeen Batcha (A1) and produced him before the learned District Munsif-cum- Judicial Magistrate, Bodinayakanur and remanded him to custody till 26.02.2016. Thereafter, he was released on bail within three days, i.e. on 16.02.2016 and even after his release on bail, he was not properly attending the Court and therefore, a fresh NBW was issued against him, in which he was arrested and was ultimately released on bail on 05.10.2016.
ix) Aggrieved by the repeated arrest and remand, Mydeen Batcha (A1) made a complaint to the Registrar General of the Madras High Court against M.Amirthavel, learned District Munsif-cum-Judicial Magistrate, Bodinayakanur, alleging that he was arrested and remanded illegally by the said Magistrate. On the complaint given by Mydeen Batcha, a proceeding in R.O.C.No.1153/2016/B3/MB dated 04.03.2016 was registered by the High Court for enquiry. Mydeen Batcha filed W.P.(MD) No.22414 of 2016 against the Registrar (Administration) of the High Court for a direction to complete the enquiry within a time bound manner.
x) When W.P.(MD) No.22414 of 2016 came before the Division Bench of this Court on 21.12.2016, it was represented on behalf of the Registrar (Administration) of the High Court that they will complete the enquiry within a period of twelve weeks from the date of receipt of a copy of the order. Recording the submission of the counsel representing the Registrar (Administration), W.P.(MD) No.22414 of 2016 was closed on 21.12.2016. Not satisfied with that, Mydeen Batcha approached the Tamil Nadu Jamathul Ulama Sabha, a Jamaath in Theni District and represented that he had already pronounced Triple Talaq against Naseema; that the learned Sub-Court, Theni has declared the Triple Talaq as null and void; that the District Judge has reversed the judgment of the said Court in A.S.No.5 of 2015 and that the High Court has granted interim stay of the Appellate order. The Jamaath has issued a Fathwa by a written communication dated 02.09.2016 to the father of the Naseema stating that they ought not to have gone to the High Court where Kafir Judges are passing orders against Islamic and Quranic injunctions and that the Jamaath will not permit the High Court to pass any such wrong orders. The Jamaath summoned Naseema's father to appear before them on 11.09.2016 and explain the situation.
xi) In the meantime, Mydeen Batcha issued a legal notice to Amirthavel, learned District Munsif-cum-Judicial Magistrate, Bodinayakanur, making reckless allegations against him and demanding a compensation of Rs.5,00,000/-.
xii) While so, Mydeen Batcha has filed two petitions, namely, Crl.O.P.(MD) No.12120 of 2016 for transfer of the case in C.C. No. 81 of 2015 on the file of the learned District Munsif-cum-Judicial Magistrate Court, Bodiynayakanur to any other Court and Crl.O.P.(MD) No.1401 of 2017 for quashing of proceedings in C.C No. 81of 2015 on the file of the District Munsif-cum-Judicial Magistrate, Bodinayakkanur, Theni District.
4. Learned counsel for Mydeen Batcha and other accused in C.C.No.81 of 2015 submitted that the entire proceedings are an abuse of process of law inasmuch as there are no allegations against the accused to even prime facie make out a case for offences under
Sections 120-B and
420 IPC. He further submitted that the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur ought not to have issued a Non Bailable Warrant at the first instance and he should have issued summons. He also submitted that the summon was not served on the accused as required under
Section 61 Cr.P.C. and on the basis of notional service of summons, the Non Bailable Warrant has been issued. He also submitted that since Mydeen Batcha obtained anticipatory bail, he should not have been arrested and remanded to custody. He placed strong reliance on the judgment of the Supreme Court in the case of Inder Mohan Goswami and another vs. State of Uttaranchal and others, reported in 2007 (5) CTC 614, wherein the Supreme Court has given guidelines to all the Courts that are required to be followed before issuance of Non Bailable Warrant. He also placed strong reliance on the judgment of the Hon'ble Supreme Court in the case of Arnesh Kumar vs. State of Bihar and another, reported in (2014) 3 MLJ (Crl) 353 (SC), wherein the Hon'ble Supreme Court has deprecated the practice of estranged wives implicating all the family members of the family of the husbands for cruelty and dowry harassment.
5. This Court gave its anxious consideration to the rival submissions.
6. It is seen from the narration of the facts above that on the complaint of Naseema, the Police registered a case in Crime No.3 of 2009 against Mydeen Batcha and during investigation, Mydeen Batcha and his family members stated that the matter could be resolved amicably in the Jamaath, but the Jamaath will be able to take a decision only after the criminal complaint is withdrawn. Believing the representation of Mydeen Batcha and his family members, Naseema filed a petition before the learned District Munsif-cum- Judicial Magistrate, Utthamapalayam and gave a statement that she is willing to withdraw the complaint and Naseema's father also gave a statement before the Magistrate, in which he has stated that the bridegroom's family have approached the local Jamaath for amicable settlement of the dispute and that on account of the pendency of the investigation in Crime No.3 of 2009, they are reluctant to take up the matter. In view of the statements given before the Magistrate by Naseema and her father, the Police closed the case in Crime No.3 of 2009. Immediately thereafter, Mydeen Batcha pronounced Triple Talaq, which came as a rude shock to Naseema. Naseema did not file any private complaint and instead, she filed a suit to declare the Talaq as null and void and after getting the Talaq from Mydeen Batcha, she has filed the present complaint alleging that she was cheated by Mydeen Batcha and his family members by inducing her to withdraw the case in Crime No.3 of 2009.
7. It is seen from the Docket Orders that the learned District Munsif- cum-Judicial Magistrate, Bodinayakanur did not take the complaint on file in haste. Instead after several clarifications and recording sworn statements of the witnesses, took cognizance of the offence and has issued summons to the accused. Only when the accused did not care to respond to the summons, a Non Bailable Warrant was issued. This, in the considered opinion of this Court cannot be said to be in violation of the law laid down in Inder Mohan Goswami and another vs. State of Uttaranchal and others (cited supra). The fact that Mydeen Batcha knew about the pendency of the warrant, is clear from the fact that he filed Crl.O.P.(MD) No.715 of 2016 for anticipatory bail. He could have easily surrendered before the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur and could have had the warrant recalled under
Section 70(ii) Cr.P.C.
8. At this juncture, it may be necessary to state that Naseema was forced to file Crl.O.P.(MD) No.17000 of 2015 for a direction to execute the warrant, because Police were dragging their feet for no good reasons. After the order in Crl.O.P.(MD) No.17000 of 2015 passed also, the Police did not take any action to execute the warrant and so, Naseema issued a contempt notice against Police for not executing the warrant. As regards the contention of Mydeen Batcha that he obtained anticipatory bail, this Court is of the view that anticipatory bail was not granted to Mydeen Batcha by this Court, but whereas this Court had directed him to surrender before the Magistrate for recalling the warrant. The order in Crl.O.P.(MD) No.715 of 2016 was made ready by the Registry only on 15.02.2016 and therefore, the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur would not have been aware of the said order, when he remanded Mydeen Batcha on 14.02.2016. Moreover, the order in Crl.O.P.(MD) No.715 of 2016 was passed by this Court on 18.01.2016 and till his arrest by the Police on 14.02.2016, Mydeen Batcha did not choose to comply with the order and surrender before the learned District Munsif-cum-Judicial Magistrate, Bodinayakanur for the purpose of recalling the warrant. It was only after his arrest and remand before the Magistrate, Mydeen Batcha filed an application for recalling the Non Bailable Warrant.
9. Notwithstanding all these, Mydeen Batcha sent a legal notice dated 23.06.2016 to M.Amirthavel, learned District Munsif-cum-Judicial Magistrate, Bodinayakanur, claiming a compensation of Rs.5,00,000/-. In the considered opinion of this Court, this is nothing short of an attempt to terrorise a Judicial Officer, for which, contempt action can be initiated against Mydeen Batcha. The learned District Munsif-cum-Judicial Magistrate, Bodinayakanur was right in refusing to accept the surrender petition on 14.02.2016 after the Police had arrested Mydeen Batcha, pursuant to the Non Bailable Warrant issued by the Court.
10. Learned counsel for Mydeen Batcha submitted that there is infraction of
Section 204 Cr.P.C., inasmuch as the complaint should be accompanied by a list of witnesses. In this case, before taking cognizance, the Magistrate has recorded the sworn statement of two witnesses, namely, Naseema and her father and only thereafter, he has issued the process. Therefore, there is no scope of saying that the witness list is absent.
11. During the pendency of the transfer petition in Crl.O.P.(MD) No.12120 of 2016, Mr.M.Amirthavel, learned District Munsif-cum-Judicial Magistrate, Bodinayakanur, against whom, Mydeen Batcha has made allegations, has been promoted as Sub-Judge and has been posted at Nagercoil on 05.05.2017. Therefore, there is no necessity to transfer this case to any other Court.
12. Insofar as Crl.O.P.(MD) No.1401 of 2017 is concerned, on a complete reading of the complaint lodged by Naseema, it is seen that there are prima facie allegations against Mydeen Batcha and his parents inasmuch as they had induced Naseema to withdraw the case in Crime No.3 of 2009 and after she had withdrawn the case, the Triple Talaq was pronounced and therefore, she had no other option, but to file the present complaint.
13. As regards the accused A4 to A9, who are sisters and brothers-in- law of Mydeen Batcha, this Court finds that there are no prima facie materials against them for the prosecution to proceed. Therefore, Crl.O.P.(MD) No.1401 of 2017 is partly allowed. The prosecution against A4 to A9 in C.C.No.81 of 2015 is hereby quashed and Crl.O.P.(MD) No.1401 of 2017 is dismissed as regards A1 to A3.
14. Before parting, this Court places on record its strong disapproval of the Fathwa issued by the Jamaath denigrating the judiciary and chastising Naseema's father for having approached the secular Courts established by law for redressal of their grievances. This is indeed disturbing. Albeit boycott of Courts by Lawyers, the present Court system only gives identity and respect to the Advocates in our society. Judges are only passing features, as they have to move out of the portals of the Court on superannuation. If Jamaaths are going to replace the existing Courts, the first casualty will be the Bar. One of the blackest days in the annals of the judiciary was on the 8th of August, 2016, when Fundamentalists killed 54 Lawyers in Quetta District of Pakistan. The Bar cannot afford to be in slumber.
For the sake of brevity, it is reiterated that Crl.O.P.(MD) No.12120 of 2016 is closed and Crl.O.P.(MD) No.1401 of 2017 is partly allowed. Consequently, connected miscellaneous petitions are closed.
To:
1. The District Munsif-cum-Judicial Magistrate, Bodinayakanur.
2. The District Munsif-cum-Judicial Magistrate, Utthamapalayam..