Kahkashan Kausar @ Sonam vs The State Of Bihar

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 195 OF 2022 (arising out of S.L.P (Crl.) No. 6545 OF 2020)

KAHKASHAN KAUSAR @ SONAM & ORS. … APPELLANT (S)

VERSUS

STATE OF BIHAR & ORS. … RESPONDENT(S)

JUDGMENT

KRISHNA MURARI, J.

Leave granted.

2. This appeal is directed against the judgment and order dated 13.11.2019

passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019,

filed by the Appellants under Section 482 of the Code of Criminal Procedure

(hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated

01.04.2019 implicating the Appellants for offences under Sections 341, 323,

379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter

referred to as ‘IPC’). The High Court vide order impugned herein dismissed the Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.08 16:17:30 IST

same.

Reason:

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Factual Matrix

3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @

Soni, was married to Md. Ikram on 18.09.17. The appellants herein are

the in-laws of Respondent No. 5. On 11.12.17, the said Respondent

initially instituted a criminal complaint against her husband and the

appellants before the Court of Chief Judicial Magistrate, Purnea alleging

demand for dowry and harassment. Thereafter, when the file was put up

before the Sub Divisional Judicial Magistrate Court, Purnea, for passing

order at the stage of issuance of summon, the Ld. Magistrate concluded

that upon perusal of material evidence no prima-facie case was made

against the in-laws and that the allegations levelled against them were not

specific in nature. The said court, however, took cognizance for the

offence under section 498A, 323 IPC against the husband Md. Ikram, and

issued summons. This dispute was eventually resolved and Respondent

No. 5 herein came back to the matrimonial home.

4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another

written complaint for registration of FIR under sections 341, 323, 379,

354, 498A read with Section 34 IPC against her husband Md. Ikram and

the appellants herein. The complaint inter-alia alleged that all the accused

2 were pressurizing the Respondent wife herein to purchase a car as dowry,

and threatened to forcibly terminate her pregnancy if the demands were

not met.

5. Aggrieved, the Husband and appellant herein filed a criminal writ

petition before the Patna High Court, for quashing of the said FIR dated

01.04.19, which was dismissed vide impugned judgment. The High Court

observed that the averments made in the FIR prima-facie disclosed

commission of an offence and therefore the matter was required to be

investigated by the police. The Appellants herein, being the niece

(Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law

(Respondent No. 3), and brother in law (Respondent No. 4) have thereby

approached this court by way of the present Special Leave Petition.

Contentions made by the Appellants

6. The counsel for the Appellants herein contends, that the Police Officer

was duty bound to conduct a preliminary inquiry before registering the FIR as

this instant case falls within the categories of cases on which a preliminary

enquiry may be made, as mandated by this court in Lalita Kumari Vs.

Government of U.P. & Ors.1 .

1. (2014) 2 SCC 1

3

7. It is also submitted that previously in the year 2017, the Respondent wife

had instituted a criminal complaint on similar allegations, whereby the Ld.

Judicial Magistrate after considering the evidence issued summons only against

the husband, and found that the allegations made against the appellants herein

were omnibus in nature. Further, it is submitted that the FIR in question has

been made with a revengeful intent, merely to harass the Appellant in-laws

herein, and should be dealt with accordingly. Reliance is placed on Social

Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of

Law And Justice & Ors.2, wherein it was observed:-

“4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others , it was held by the Supreme Court:-

"Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations

2. (2018) 10 SCC 443

4 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.”

Contention made by Respondent No. 1 – State of Bihar

8. Respondent No. 1 herein i.e., the State of Bihar, contends that the

present FIR pertains to offences committed in the year 2019, after

assurance was given by the husband Md. Ikram before the Ld. Principal

Judge Purnea, to not harass the Respondent wife for dowry, and treat her

properly. However, the husband and appellants, despite the assurances,

have continued their demand for dowry and threatened with forcefully

terminating the Respondent wife’s pregnancy. These acts constitute a

fresh cause of action and therefore the FIR in question herein dated

01.04.19, is distinct and independent, and cannot be termed as a repetition

of an earlier FIR dated 11.12.17. Moreover, an investigation was carried

out pursuant to the FIR and the case has been found true against all

accused persons, therefore Lalita Kumari (Supra) will not apply in the

present case.

Contentions made by Respondent No 5 – Complainant Wife

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9. Respondent No. 5 contends that of the total seven accused, the FIR

in question was challenged by only five accused including her husband. It

is argued that the impugned order is evidently accepted by the accused

husband Md. Ikram @Sikandar as he has not challenged the impugned

High Court judgment. Further, as far as involvement of the four accused

Appellant in-laws is concerned, it is not only reflected from the

averments made in the FIR, but also corroborated from the oral and

documentary evidence collected by the investigating officer during

investigation, culminating into filing of charge-sheet against all seven

accused including the four Appellants herein. The allegations thus made

in the FIR are sufficient to make out a prima facie case, and non-

mentioning of pendency of Complaint case of year 2017, at the time of

filing the complaint 01.04.19 is not fatal for the case of the prosecution.

10. It is further submitted that the allegations made in the FIR are

serious in nature and the Respondent wife has been repeatedly tortured

physically and mentally in order to fulfil the demand for dowry. Further,

even if the contentions made by the Respondent No. 5 herein are

disputed, by the Appellant in-laws, their veracity can be tested in trial

before the Trial Court. It is further contended that this court has also taken

a consistent view with regard to exercise of power under S. 482 Cr.P.C.,

6 in Rajesh Bajaj Vs. State of NCT of Delhi & Ors. 3, wherein it has been

clearly held that even if a prima facie case is made out disclosing the

ingredients of an offence, Court should not quash the complaint.

Therefore, the impugned order can in no way be termed as perverse,

cryptic or erroneous and therefore warrant no interference by this Hon’ble

Court.

Issue Involved

11. Having perused the relevant facts and contentions made by the

Appellants and Respondents, in our considered opinion, the foremost

issue which requires determination in the instant case is whether

allegations made against the in-laws Appellants are in the nature of

general omnibus allegations and therefore liable to be quashed?

12. Before we delve into greater detail on the nature and content of

allegations made, it becomes pertinent to mention that incorporation of

section 498A of IPC was aimed at preventing cruelty committed upon a

woman by her husband and her in-laws, by facilitating rapid state

intervention. However, it is equally true, that in recent times, matrimonial

litigation in the country has also increased significantly and there is a

3. (1999) 3 SCC 259

7 greater disaffection and friction surrounding the institution of marriage,

now, more than ever. This has resulted in an increased tendency to

employ provisions such as 498A IPC as instruments to settle personal

scores against the husband and his relatives.

13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of

U.P. & Anr.4, has observed:-

“14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized.

At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.”

4. (2018) 10 SCC 472

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14. Previously, in the landmark judgment of this court in Arnesh

Kumar Vs. State of Bihar and Anr.5, it was also observed:-

“4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.”

15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it

has also been observed:-

“32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their

5. (2014) 8 SCC 273

6. (2010) 7 SCC 667

9 concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations 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. The allegations of the complaint are required to be scrutinized with great care and circumspection.

36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.”

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16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:-

“21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes.”

17. Recently, in K. Subba Rao v. The State of Telangana 8, it was also

observed that:-

7. (2012) 10 SCC 741

8. (2018) 14 SCC 452

11 “6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.”

18. The above-mentioned decisions clearly demonstrate that this court

has at numerous instances expressed concern over the misuse of section

498A IPC and the increased tendency of implicating relatives of the

husband in matrimonial disputes, without analysing the long term

ramifications of a trial on the complainant as well as the accused. It is

further manifest from the said judgments that false implication by way of

general omnibus allegations made in the course of matrimonial dispute, if

left unchecked would result in misuse of the process of law. Therefore,

this court by way of its judgments has warned the courts from proceeding

against the relatives and in-laws of the husband when no prima facie case

is made out against them.

19. Coming to the facts of this case, upon a perusal of the contents of

the FIR dated 01.04.19, it is revealed that general allegations are levelled

against the Appellants. The complainant alleged that ‘all accused harassed

her mentally and threatened her of terminating her pregnancy’.

Furthermore, no specific and distinct allegations have been made against

12 either of the Appellants herein, i.e., none of the Appellants have been

attributed any specific role in furtherance of the general allegations made

against them. This simply leads to a situation wherein one fails to

ascertain the role played by each accused in furtherance of the offence.

The allegations are therefore general and omnibus and can at best be said

to have been made out on account of small skirmishes. Insofar as

husband is concerned, since he has not appealed against the order of the

High court, we have not examined the veracity of allegations made

against him. However, as far as the Appellants are concerned, the

allegations made against them being general and omnibus, do not warrant

prosecution.

20. Furthermore, regarding similar allegations of harassment and

demand for car as dowry made in a previous FIR. Respondent No. 1 i.e.,

the State of Bihar, contends that the present FIR pertained to offences

committed in the year 2019, after assurance was given by the husband

Md. Ikram before the Ld. Principal Judge Purnea, to not harass the

Respondent wife herein for dowry, and treat her properly. However,

despite the assurances, all accused continued their demands and

harassment. It is thereby contended that the acts constitute a fresh cause

of action and therefore the FIR in question herein dated 01.04.19, is

13 distinct and independent, and cannot be termed as a repetition of an

earlier FIR dated 11.12.17.

21. Here it must be borne in mind that although the two FIRs may

constitute two independent instances, based on separate transactions, the

present complaint fails to establish specific allegations against the in-laws

of the Respondent wife. Allowing prosecution in the absence of clear

allegations against the in-laws Appellants would simply result in an abuse

of the process of law.

22. Therefore, upon consideration of the relevant circumstances and in

the absence of any specific role attributed to the accused appellants, it

would be unjust if the Appellants are forced to go through the tribulations

of a trial, i.e., general and omnibus allegations cannot manifest in a

situation where the relatives of the complainant’s husband are forced to

undergo trial. It has been highlighted by this court in varied instances,

that a criminal trial leading to an eventual acquittal also inflicts severe

scars upon the accused, and such an exercise must therefore be

discouraged.

23. In view of the above facts and discussions, the impugned order

dated 13.11.2019 passed by the High Court of Patna is set aside. The

14 impugned F.I.R. No. 248 of 2019 against the Appellants under Sections

341, 323, 379, 354, 498A read with Section 34 IPC stands quashed.

24. As a result, appeal stands allowed.

....…..........................J. (S. ABDUL NAZEER)

…................................J. (KRISHNA MURARI)

NEW DELHI;

08TH FEBRUARY, 2022

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