Court No. - 48
Case :- APPLICATION U/S 482 No. - 16110 of 2006 Applicant :- Smt. Shahana Khan And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- M.F. Ansari Counsel for Opposite Party :- Govt. Advocate,D. Dahma
Hon'ble Karuna Nand Bajpayee,J.
Rejoinder affidavit filed on behalf of applicants is taken on record.
This application u/s 482 Cr.P.C. has been moved on behalf of applicants seeking the quashing of complaint case no.430 of 2004 (Qamar Jahan vs. Shahana Khan and others), under sections 323, 504, 506 I.P.C., P.S. Gandhi Park, District Aligarh, pending in the Court of Additional Civil Judge (J.D.)/Judicial Magistrate, Court No.3, Aligarh.
Heard learned counsel for the applicants, learned counsel for the opposite party no.2 and learned A.G.A.
Submission of learned counsel for the applicants is that husband of applicant no.1 had died and the applicant no.1 was issueless. After death of the husband the in-laws started ill-treating her and refused to give her rights which she had in the property belonging to her husband as well as her Stridhan which belonged to her. Ultimately, at some stage of her disgruntled life she was actually ousted from the house. When the applicant no.1 and her well-wishers tried to persuade the opposite party no.2 who is the mother-in-law of applicant no.1, she and the other members of family have contrived to lodge this entirely frivolous and false complaint against applicant no.1, her other family members and well-wishers in order to exert coercive pressure so that applicant no.1 may not pursue her vested rights in the property. Submission is that it is an admitted fact that applicant no.1 is not living in her husband's house which shows that if she was treated well and was given her due rights, there was no question for her to leave her husband's house. That fact by itself is a proof of ill-treatment which forced her ouster from her matrimonial home. Submission is that allegations as have been made are bristling with elements of high improbability which no prudent man would feel inclined to believe. Contention is that applicant no.1 herself has been a great sufferer after the death of her husband and now over and above everything else she has been facing prosecution in the present malicious complaint. Argument is that the malice behind prosecution is apparent from the face of record and the allegations are too absurd to be believed and thereafter the continuation of the proceedings will result in abuse of court's process and therefore deserves to be quashed.
Learned counsel appearing for opposite party no.2 has opposed the application and has tried to submit that the allegations as have been made in the complaint are constituting offences and therefore, there is no need to interfere in the same.
Perused the record in the light of submissions made at the bar.
After having perused the record it appears undisputed that the applicant no.1 has lost her husband. It also does not appear to be in dispute as has been admitted by the counsel appearing for the opposite party also that applicant no.1 is no more living in her matrimonial home. This Court finds substance in the submission made by the counsel for the applicants that if the wife would be given her due rights in the property of her husband and if she was not ill-treated, there was no question for her to have left the matrimonial house. The allegations, as have been made in the complaint, appear to be highly improbable and the malice behind lodging complaint appears to be apparently writ large. In this regard we may usefully keep in perspective the law laid down by Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426, in which certain categories have been recognized on the basis of which the criminal proceeding against a certain party or the accused may be quashed. It was observed by the Hon'ble Apex Court in Bhajan Lal's case as follows:-
"The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In the considered view of this Court this matter falls in category nos.(5) and (7) mentioned hereinabove. This Court finds reason to hold that the complaint in question is inspired by malice and the version contained therein is full of high improbabilities and the continuation of the proceedings on that basis is likely to result in abuse of court's process, and therefore, the entire proceeding of complaint in question is liable to be quashed.
In this view of the matter this application is allowed and the entire proceeding of complaint in question against the accused- applicants stand quashed.
A copy of this order be certified to the lower court concerned forthwith.
Order Date :- 21.8.2018 shiv