Mirza Iqbal @ Golu vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1628 OF 2021 (Arising out of SLP (Crl.) No.2786 OF 2019)

Mirza Iqbal @ Golu & Anr. ...Appellant(s)

vs.

State of Uttar Pradesh & Anr ...Respondent(s)

J U D G M E N T

R. SUBHASH REDDY,J.

1. Leave granted.

2. This Criminal Appeal is filed aggrieved by the

order dated 10.12.2018 passed by the High Court of

Judicature at Allahabad in Application No.44475 of

2018.

3. The aforesaid application was filed before the

High Court under Section 482 of Cr.P.C. for quashing

the Chargesheet No.01 of 2018 dated 12.10.2018 and Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.12.14 order of Chief Judicial Magistrate, taking cognizance 17:27:52 IST Reason:

of the case vide order dated 22.10.2018 for the

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offences punishable under Sections 498-A, 323, 504,

506, 304-B of IPC and Sections 3 & 4 of the Dowry

Prohibition Act, 1961 (D.P. Act) in Case Crime

No.0136 of 2018 registered on the file of PS-Kotwali,

District Gorakhpur.

4. The 2nd respondent – complainant Shri Nisar Ullah

father of the deceased, Rushda Nisar has lodged a

complaint on 25.07.2018 at 09:31 p.m. at PS-Kotwali,

District Gorakhpur to the effect that his younger

daughter namely Rushda Nisar was married to Mirza

Ismail Beg alias Amir s/o Zaki Ullah r/o Mohalla-

Muftipur of Gorakhpur District on 25.12.2015. After

the solemnization of marriage, the accused persons

Mirza Ismail Beg alias Amir (husband), brother-in-law

(devar) Mirza Iqbal alias Golu (1st Appellant herein),

sister-in-law (nanad) Hifza alias Chinki and mother-

in-law (saas) Sammi (2nd Appellant) continuously used

to demand a four-wheeler vehicle and Rs.10,00,000/-

in cash as dowry. It is alleged that as the said

demands were not met, they used to beat his daughter

and threatened to kill her. It is, further, alleged

that ten days prior to the date of incident, all the

accused persons with a common intention had severely

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beaten up his daughter and threatened to kill, if the

demands of dowry of cash and car were not met. On

being compelled, he had also given an amount of

Rs.2,70,000/- cash from his business earning, in

spite of the same, accused was adamant in demanding

the car. On 24.07.2018 at about 8 p.m., the accused

persons with a common intention beat his daughter,

killed her by putting a noose around her neck and

hanged her. On coming to know of the incident, he

went along with his son from Surat and he was shocked

to see his daughter in such a state. When the

situation has become slightly normal, he has lodged a

report to take necessary action and to initiate legal

proceedings against the accused. Based on the

aforesaid complaint, a case was registered against

all the named accused including the appellants

herein, who are brother-in-law and mother-in-law of

the deceased for the alleged offences under Sections

498-A, 323, 504, 506, 304-B of IPC and Sections 3 & 4

of the D.P. Act.

5. When the appellants have filed quash petition

before the High Court, it was disposed of by impugned

order directing the appellants to surrender before

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the Court below and apply for grant of bail and the

same was directed to be considered in accordance with

law.

6. Pursuant to the complaint, crime was registered

and after registration, investigation was taken up

and after completing the investigation, final report

was filed on 12.10.2018 and the same was taken

cognizance by learned Chief Judicial Magistrate by

order dated 22.10.2018.

7. We have heard Ms. Vibha Datta Makhija, learned

Senior Counsel appearing on behalf of the appellants

and Mr. Sahdev Singh, learned counsel for State of

Uttar Pradesh and Mohd. Asad Khan, learned counsel

for the respondent no.2/Complainant.

8. Learned senior counsel appearing for the

appellants has contended that the 1st Appellant

herein, is brother-in-law of the deceased is working

as a Cashier in ICICI Bank, Khalilabad. On the date

of incident i.e. on 24.07.2018, he was on duty. It is

submitted that he resides at Khalilabad in view of

his employment in ICICI Bank and his mother–2nd

Appellant Shamima Bano alias Sammi is also living

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with him at Khalilabad since 2017. It is submitted

that even as per the case of the prosecution, the

incident has taken place at about 8 p.m. at

Gorakhpur, which is 40 kms away from Khalilabad. On

the date of incident, he was on duty at ICICI Bank

and entered the branch at 09:49 a.m. and came out at

06:25 p.m. In spite of the same, on vague and bald

allegations, appellants are sought to be prosecuted,

without any specific allegations either in complaint

or in the chargesheet. It is submitted that during

the pendency of investigation, the appellant has

filed affidavit before the Senior Superintendent of

Police, District Gorakhpur, stating that he was in

the Bank on the date of incident and requested to

investigate by looking into the call details of his

mobile number and also CCTV footage of the bank. It

is submitted that his sister-in-law i.e. the deceased

was under mental depression and was undergoing

treatment for the same. It is submitted that in spite

of such an affidavit filed by the appellants without

any investigation, in a casual and routine manner,

final report was filed with vague and omnibus

allegation against the appellants. It is submitted

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that in absence of any specific allegations against

the appellants disclosing their active involvement,

the learned Chief Judicial Magistrate has taken

cognizance in a routine and mechanical manner. It is

submitted that as there is no material or any

specific allegations against the appellants/accused

and if they are allowed to face the trial, it is

nothing but abuse of the process of law. Learned

counsel has submitted that it is evidently a fit

case to quash the proceedings, by allowing the

appeal.

9. On the other hand, learned counsel appearing for

1st respondent-State and 2nd respondent-Complainant,

have submitted that in view of specific mention of

the names in the complaint as well as in the

chargesheet, it is not a case to quash the

proceedings at this stage. It is submitted that the

appellants have to prove their innocence in the

trial. It is submitted that all the accused were

demanding dowry of Rs.10,00,000/- and a car from the

deceased and on 24.07.2018 with a common intention,

all of them caused injuries to the deceased and

ultimately killed her. It is submitted that as the

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postmortem report clearly reveals cause of death as

asphyxia, there are no grounds to quash the

proceedings. Further, it is submitted that the quash

petition filed by the sister-in-law of the deceased

was dismissed by this Court vide order dated

15.04.2019.

10. Having heard the learned counsels on both the

sides, We have carefully perused impugned order,

other material placed on record and counter

affidavits filed on behalf of 1st Respondent–State as

well as on behalf of 2nd Respondent–complainant.

11. The appellants are brother-in-law and mother-in-

law respectively of the deceased. A perusal of the

complaint filed by the 2nd respondent, pursuant to

which a crime was registered, does not indicate any

specific allegations by disclosing the involvement of

the appellants. It is the specific case of the 1st

appellant that he was working as a cashier in ICICI

Bank at Khalilabad branch, which is at about 40 kms

from Gorakhpur. The alleged incident was on

24.07.2018 at about 8 p.m. When the investigation was

pending, the 1st appellant has filed affidavit before

Senior Superintendent of Police on 08.08.2018, giving

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his employment details and stated that he was falsely

implicated. It was his specific case that during the

relevant time, he was working at ICICI Bank,

Khalilabad branch, Gorakhpur and his mother was also

staying with him. The Branch Manager has endorsed his

presence in the branch, showing in-time at 09:49 a.m.

and out-time at 06:25 p.m. Even in the statement of

2nd respondent recorded by the police and also in the

final report filed under Section 173(2) of Cr.P.C.,

except omnibus and vague allegations, there is no

specific allegation against the appellants to show

their involvement for the offences alleged. This

Court, time and again, has noticed making the family

members of husband as accused by making casual

reference to them in matrimonial disputes. Learned

senior counsel for the appellants, in support of her

case, placed reliance on the judgment of this Court

in the case of Geeta Mehrotra and Anr. v. State of

Uttar Pradesh and Anr.1. In the aforesaid case, this

Court in identical circumstances, has quashed the

proceedings by observing that family members of

husband were shown as accused by making casual

1 (2012) 10 SCC 741

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reference to them. In the very same judgment, it is

held that a large number of family members are shown

in the FIR by casually mentioning their names and the

contents do not disclose their active involvement, as

such, taking cognizance of the matter against them

was not justified. It is further held that taking

cognizance in such type of cases results in abuse of

judicial process. Paras 18 and 25 of the said

judgment, which are relevant for the purpose of this

case, read as under:

“18. Their Lordships of the Supreme Court in Ramesh case [(2005)3 SCC 507 : 2005 SCC (Cri) 735] had been pleased to hold that the bald allegations made against the sister-

in-law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband's relatives as possible. It was held that neither the FIR nor the charge- sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge-sheet, none of the alleged offences under Sections 498-A, 406 IPC and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant's husband who was undisputedly not living with the family of the complainant's husband. Their Lordships of the Supreme Court

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were pleased to hold that the High Court ought not to have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law.

Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima

10 SLP(Crl.) No. 2786 of 2019

facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

12. From a perusal of the complaint filed by the 2 nd

respondent and the final report filed by the police

under Section 173(2) of Cr.P.C., We are of the view

that the aforesaid judgment fully supports the case

of the appellants. Even in the counter affidavits

filed on behalf of respondent nos.1 and 2, it is not

disputed that the 1st appellant was working in ICICI

Bank at Khalilabad branch, but merely stated that

there was a possibility to reach Gorakhpur by 8 p.m.

Though there is an allegation of causing injuries,

there are no other external injuries noticed in the

postmortem certificate, except the single ante-mortem

injury i.e. ligature mark around the neck, and the

cause of death is shown as asphyxia. Having regard to

the case of the appellants and the material placed on

record, we are of the considered view that except

vague and bald allegations against the appellants,

there are no specific allegations disclosing the

involvement of the appellants to prosecute them for

11 SLP(Crl.) No. 2786 of 2019

the offences alleged. In view of the judgment of this

Court in the case of Geeta Mehrotra and Anr.1, which

squarely applies to the case of the appellants, we

are of the view that it is a fit case to quash the

proceedings.

13. For the aforesaid reasons, this appeal is allowed

and the impugned order dated 10.12.2018 passed in

Application No.44475 of 2018 by the High Court, is

set aside. Consequently, the chargesheet no.01 dated

12.10.2018 filed in FIR No.136 of 2018 on the file of

PS-Kotwali, District Gorakhpur for the offences under

Sections 498-A, 323, 504, 506, 304-B of IPC and

Sections 3 & 4 of the D.P. Act and the consequential

order dated 22.10.2018, passed by the Chief Judicial

Magistrate, Gorakhpur, is hereby quashed.

………………………………………………J [R. Subhash Reddy]

………………………………………………J [Hrishikesh Roy] New Delhi.

December 14, 2021

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