Madras HC quashes #FALSE498a in Feb’16 & talks of 498a misuse! Quotes earlier SC cases on #498amisuse

A woman files a fake 498a case. During police panchayat she agrees to live separately with her husband IF a separate household is established. She also states that all her Jewellery is with her parents. Later the couple start living together and again trouble crop up. She changes her stand and files yet another fake dowry case. The second case is inquired into and in the inquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However police file final report on many accused who move to the HC for quash.

Honble HC quashes the case and also clearly decries the misuse of 498a !! The Honble HC quotes both Sushil Kumar and Arnesh Kumar case (SC cases !! )


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19.02.2016  

CORAM
THE HON’BLE MR.JUSTICE P.N.PRAKASH

Crl.O.P.(MD) No.14279 of 2013

1.      Kaleel Ahamed Sahib
2.      Basaria Begum
3.      Mariyam Kani
4.      Syed Mohammed            … Petitioners/A1 to A4
-vs-

1.      The State Rep. by
The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Crime No.6 of 2013)            …1st respondent/complainant

2.      Thameema                … 2nd respondent/Defacto complainant

Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.

For Petitioners        :
Mr.N.Syed Mohamed (4th petitioner / Party-in-Person)
Mr.A.Prasanna Rajadurai  (Amicus Curiae)

For R1                 :
Mr.S.Prabha, Govt. Advocate (Crl.Side)

For R2                  :
Mr.Ayyanar Premkumar, For Mr.D.S.Haroon Rashee, Addl. Public Prosecutor

O R D E R

  1. This petition has been filed to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.
  2. Initially, this quash petition was filed by the petitioners through their counsel M/s.Ajmal Associates and during the pendency of the quash petition, the petitioners have revoked the vakalath given to M/s.Ajmal Associates and Syed Mohammed / 4th petitioner herein appeared in person with authorization from other petitioners.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  3. During the course of hearing, this Court observed that Syed Mohammed / 4th petitioner herein requires legal assistance and therefore, this Court requested Mr.A.Prasanna Rajadurai, Advocate to appear pro bono for the petitioners and adjourned the case to today.
  4. This Court heard Mr.A.Prasanna Rajadurai, Advocate, Mr.Syed Mohamed / Party-in-person, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant and Mrs.S.Prabha, learned Government Advocate (Crl.Side) for the State and reserved orders.
  5. It is seen that Thameema / 2nd respondent (defacto complainant) got married to Kaleel Ahamed Sahib / 1st petitioner (A1) on 10.05.2009 and their marriage ran into rough weather. Thameema lodged a complaint sometime in January, 2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town, alleging the acts of cruelty against her husband and in-laws. The Police called both parties for enquiry. During enquiry, the couple agreed to reunite and establish a separate household. Thameema gave a letter dated 01.02.2012 to the Sub-Inspector of Police, All Women Police Station, Madurai Town, wherein she has stated that she is willing to join her husband and that the jewellery, which was given to her during marriage are in the custody of her parents. She withdrew the complaint given by her. Thereafter, again some dispute arose between the couple on account of which Thameema lodged a fresh complaint on 07.07.2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town. Since the Police did not take any action, she filed a petition in Crl.O.P.(MD) No.9676 of 2012 under Section 482 Cr.P.C. before this Court for a direction to the Police to register an FIR on her complaint. Pursuant to the order passed by this Court, the Sub-Inspector of Police, All Women Police Station, Madurai Town, registered a case in Crime No.8 of 2012 on 18.08.2012 under Section 498(A) IPC and Section 4 of Dowry Prohibition Act against her husband and in-laws.
  6. Subsequently, for lack of territorial jurisdiction, the FIR was transferred to the file of All Women Police Station, Sivakasi, where the case was re-registered as Crime No.6 of 2013. The Sivakasi Police referred the matter to the District Social Welfare Officer for enquiry. The enquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However, the respondent police filed a final report in C.C.No.137 of 2013 before the learned Judicial Magistrate, Sivakasi against all the four petitioners for offences under Sections 498(A) and Section 4 of Dowry Prohibition Act.
  7. Mr.A.Prasanna Rajadurai, learned counsel appearing for the petitioners submitted that the same allegations were made by the defacto complainant in the 1st complaint that was filed before the All Women Police Station, Madurai and during enquiry, she has categorically stated that she is ready to live with her husband in a separate household. She has also stated that her jewellery are with her parents. Thereafter, when the 1st petitioner pronounced Triple Talaq before Ramanathapuram District Shariath Council in Case No.41 of 2012 on 15.09.2012, the defacto complainant has revived her previous complaint, resulting in the Police filing the impugned final report.
  8. On the contrary, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant submitted that there are sufficient materials for the trial to proceed against the accused and this is not a fit case to quash the prosecution.
  9. Learned Government Advocate (Crl.Side) also supported the stand of the defacto complainant.
  10. This Court gave its anxious consideration to the rival submissions and perused the final report and accompanying documents.
  11. From the records, it is apparent that the defacto complainant gave a complaint, in which she has stated that she is being taunted by her in-laws in the joint family. She withdrew the complaint on 01.02.2012 by accepting to live in a separate household with her husband. She has also stated that the jewels given to her are with her parents. Thereafter, she has changed her stand, perhaps because, her husband had pronounced triple talaq.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  12. Be that as it may, the allegations in the final report as against parents-in-law and sister-in-law are indeed very vague. Even according to the final report, Mariyam Kani (A3) was married to one Mohammed Sindhasha and is living separately in No.170, Sakkarai Vava Street, Sivakasi, but whereas the other accused are living in No.19, Periyapillai Rowther Street, Sivakasi.
  13. The Supreme Court in Sushil Kumar Sharma vs. Union of India and Others [W.P.(civil) 141 of 2005] decided on 19.07.2005, has observed as follows: “……But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy 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 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work…..”
  14. In yet another judgment in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 3 MLJ (Crl) 353 (SC), the Supreme Court has expressed its view as under: “……..There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the 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 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. On a careful reading of the final report and the statements, this Court is of the view that the prosecution as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) is only abuse of process of law and there are materials for the prosecution to proceed against Kaleel Ahamed Sahib (A1).
  16. In the result, this Criminal Original Petition is partly allowed and the proceedings in C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) alone are quashed.
  17. This petition as against Kaleel Ahamed Sahib (A1) stands dismissed. Consequently, connected miscellaneous petitions are closed.

 

To

  1. The Judicial Magistrate, Sivakasi.
  2. The Inspector of Police, All Women Police Station, Sivakasi, Virudhunagar District.
  3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..

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