Category Archives: quash isn’t easy

Marriage by #communist #party ends in a #Mess. 1st legal #wife & 2 daughters on streets. #Husband has 2nd woman, so 1st wife filing case on 2nd !! #Muslim Personal law, #SpecialMarriage Act all discussed

Notes : Love , inter-fath marriage opposed by parents. Communist party intervenes and conducts the marriage !!. Husband Feroz khan is alleged to have forced Hindu wife Ponnarasi to convert. Ponnarasi refuses. Allegedly he is supposed to have thrown her out and married another hindu girl Sangeetha who converts to islam. First wife Ponnarasi is on the streets with 2 kids. Ponnarasi file #kitchidi of cases on #second wife Sangeetha and in laws etc. Second wife and co try quash of first wife’s cases. Madras HC refuses quash saying the first marriage was under special marriage act and so the husband NOT entitiled to marry second wife (which he would have been entitled to under Muslim personal law)

 

marriage registry
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04.06.2018

Reserved on : 27.04.2018

Pronounced on : 04.06.2018

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl. OP (MD)No.21880 of 2013
and
MP(MD)No.1 of 2013

P.Sangeetha … Petitioner

Vs.

1.The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Ref.Crime No.9/2013).

2.P.Ponnarasi … Respondents

Prayer : This Criminal Original Petition is filed Under Section 482 of Criminal Procedure Code to call for records in C.C.No.330/2013 on the file of the Judicial Magistrate, Sivakasi, Virudhunagar District and quash the charge sheet and consequential further proceedings as against the petitioner.

For Petitioners : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.A.Robinson,
Government Advocate for R1
Mr.N.Dilip Kumar for R12
:ORDER

1.Heard the learned counsel on either side.

2.This petition has been filed for quashing the proceedings in C.C No.330 of 2013 on the file of the Judicial Magistrate, Sivakasi insofar as the petitioner is concerned. The petitioner has been shown as the fourth accused in the impugned criminal proceedings. The second respondent herein is admittedly the wife of the first accused Feroz Khan. They were in love with each other and difficulties arose in view of the inter religious character of the relationship. Therefore, the local communist party office bearers stepped in. On 13.05.2004, the marriage between the first accused and the second respondent herein was solemnized under the provisions of the Special Marriage Act. Two children were born of the wedlock in the year 2005 and 2007. Both are girl children. But, the first accused Feroz Khan compelled the second respondent Ponnarasi to convert to Islam. The second respondent steadfastly refused. Therefore, she was sent away from marital home.

3.The case of the second respondent is that unable to bear the cruelty caused to her by the first accused and her in-laws, she lodged a complaint before the All Women Police Station, Sivakasi on 15.02.2013. Reconciliation efforts were undertaken. On 23.02.2013, the first accused Feroz Khan left the cell phone behind and went out. A call came and the second respondent herein attended to the same. The caller at the other end was a women. The second respondent herein wanted to know as to who she was. In response thereto, a voice at the other end stated that it was the second respondent who was speaking on the mobile of the caller’s husband and wanted to know the identity of the second respondent. The second respondent told that she was the wife of the Feroz Khan. When the person speaking on the other end heard this, she threatened the second respondent that only she alone is the wife of the Feroz Khan and that if the second respondent repeated her assertion, she would be done away with.

4.Deeply upset by this development, the second respondent/defacto complainant went to the house bearing No.25 A, Muslim Nadutheru where the first accused was residing. The second respondent saw the petitioner along with Feroz Khan. The second respondent asked her husband Feroz Khan as to who the petitioner was. Feroz Khan told the second respondent/defacto complainant that since she refused to convert to Islam, he had chosen to marry the petitioner herein. The petitioner was originally known as Sangeetha. She was the daughter of one teacher by name Pandiyarajan and was converted to Islam and renamed as Umra Fatima on 03.03.2011. After that the said Feroz Khan got married to the petitioner herein. Thereafter, the petitioner also told the second respondent that since the second respondent refused to convert Islam, she had chosen to convert to Islam and marry Feroz Khan. The petitioner asserted that she alone was the wife of the Feroz Khan and that if the second respondent did not stay away, she would be done away with.

5.The second respondent once again took up the matter to the local communist party office-bearers on 23.02.2013. They enquired the first accused Feroz Khan. He admitted that he in fact married the petitioner herein. It was true that the petitioner had converted to Islam and got her name also changed into an islamic one.

6.The police after conducting their investigation filed final report against all the four accused. As regards the petitioner herein, final report was filed under Sections 494, 506(i) of IPC. As regards the first accused, final report was filed under Sections 498(A), 506(i), 406 and 494 of IPC. As regards the in-laws, the charges were made under Sections 498(A), 506(i) IPC. The learned Judicial Magistrate, Sivakasi took the final report on file in C.C No.330 of 2013 and issued notice to the accused. To quash the same, this criminal original petition came to be filed.

7.The learned counsel appearing for the petitioner pointed out that the very registration of F.I.R under Section 494 of IPC is illegal. He would contend that there has been a mis-joinder of charges in this case. Sections 498 A and 494 of IPC cannot be clubbed together as far as the petitioner is concerned. He placed reliance on the decision reported in 2012 -2 ? L.W (Crl) 584 (Deepalakshmi vs. K.Murugesh & others). He also pointed out that there is absolutely no legal evidence to show that the petitioner had contracted marriage with Feroz Khan when the marriage between the Feroz Khan and the defacto complainant Ponnarasi was in subsistence. He also would contend that the offence of criminal intimidation was clearly not made out. The defacto complainant has not anywhere averred that she felt intimidated as a result of the words uttered by the petitioner herein. In this regard, he placed reliance on the decision of the Madras High Court reported in 1989 Crl L.J. 669.

8.The learned counsel appearing for the defacto complainant/second respondent as well as the learned Government Advocate (Crl.Side) submitted that this is not a case deserving the invocation of the inherent powers of this Court for quashing the impugned criminal proceedings. He would submit that there are sufficient materials on record which prima facie indicating that the petitioner herein is guilty of the offences under Sections 506(i) and 494 r/w 109 IPC.

9.This Court bestowed its anxious consideration to the rival contentions. It is not in dispute that the defacto complainant is the legally wedded wife of A1 Feroz Khan. It was the marriage solemnized under the Special Marriage Act. If the marriage between the first accused Feroz Khan and the defacto complainant Ponnarasi had taken place under the aegis of islamic law, then, A1 can contend he is entitled to enter into another marriage even when his first marriage is subsisting and that he cannot be said to be guilty of offence under Section 494 of IPC. But, in this case, the marriage between the first accused Feroz Khan and Ponnarasi took place under the provisions of the Special Marriage Act. https://twitter.com/ATMwithDick/status/1022347976738582528

10.Admittedly, the said marriage has not dissolved in the manner known to law. It is very much in subsistence. Now, the question is whether during the said subsistence of the first marriage, the said Feroz Khan entered into a second marriage. The police have recorded the statement of the defacto complainant under Section 161(3) Cr.PC. The specific statement of the second respondent is that by shear chance she attended the call made by the petitioner herein to the mobile number of the first accused Feroz Khan and that the petitioner had affirmed that she was the wife of A1. Thereafter, the second respondent had gone to the premise bearing No.25 A, Muslim Nadutheru where the first accused was residing. Both the petitioner and the A1 Feroz Khan were found therein. Feroz Khan as well as the petitioner herein had told the second respondent herein that since the second respondent refused to convert to Islam, the petitioner had got married to Feroz Khan. The petitioner was originally a Hindu. She was known as Sangeetha. She was the daughter of one teacher by name, Pandiyarajan. Thereafter, the petitioner underwent conversion to Islam and even got her name changed as Umra Fatima. There was also a gazette notification in this regard. There is a clear reference to the gazette notification in the statement recorded under 161 (3) statement. In the Crl.OP grounds, this has not been challenged. Therefore, there is enough material to indicate that the petitioner herein had consciously got married to said Feroz Khan with full knowledge that the marriage between the first accused and the second respondent is very much in subsistence.

11.The learned counsel appearing for the defacto complainant placed reliance on the decision of the Hon’ble Supreme Court reported in (2012) 6 SCC 353 (Ushaben V. Kishorbhai Chunilal Talpada). The Hon’ble Supreme Court held that if a complaint contains allegations about commission of offence under Section 498A of the IPC which is a cognizable offence, apart from allegations about the commission of offence under Section 494 of the IPC, the court can take cognizance thereof even on a police report. This decision of the Hon’ble Supreme Court is a clear answer to the contentions raised by the learned counsel for the petitioner that the Trial Court cannot take cognizance of both the offences under Sections 494 as well as 498 of IPC in a single proceeding. This Court rejects the contention of the petitioner that the registration of F.I.R is illegal.

12.In this case, the allegations against A1 to A3 on the one hand and the allegations against the fourth accused on the other cannot be bifurcated. This Court is of the view that the offences against all the four accused will have to be tried together. It is true that in the complaint, the second respondent has not specifically averred that she felt afraid and intimidated following the utterances of the petitioner herein. The second respondent is a woman who has been betrayed by her husband. Two girl children were born of the wedlock. She had been repeatedly pleading with the local office bearers of the communist party for reconciliation. This Court can easily come to the conclusion that the second respondent became afraid. This is evident from her conduct. That the second respondent felt the impact of the words uttered by the petitioner herein can be inferred from the subsequent conduct of the second respondent in going to the police station and lodging a complaint. That itself would show that she felt afraid. This Court is of the view that no case has been made out for quashing the impugned proceedings. However, considering the fact that the petitioner is a woman, this Court directs that the trial magistrate shall insist on the appearance of the petitioner herein only for answering the charges and at the time of examination of witnesses under Section 313 of Cr.PC and at the time of pronouncing judgement. Except the aforesaid occasions, on other hearing dates the petitioner can be permitted to be represented through counsel.

13.With this relief regarding dispensing with the personal appearance of the petitioner, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed.

To

1.The Inspector of Police, All Women Police Station, Sivakasi, Virudhunagar District. (Ref.Crime No.9/2013).

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Separated 2 days after marriage, money paid, wife remarried, still 498a runs 9 years & NOT QUASHED ! The Gamble that is called marriage !!

In nutshell …
* marriage solemnized on 09.02.2007 @ Delhi
* from 11.02.2007, respondent No. 2 (wife) started living separately (i.e.) she left in 2 days !!
* they did not cohabitate with each other since the date of their separation
* there are no issues (children) out of his wedlock !!.
* on lodging a complaint .. registered as FIR No. 927/2007, the trial began !!
* Husband paid 4 lakhs ++ to get bail and get out ! (so there must have been full threat of arrest etc)
* a decree of divorce between petitioner (husband) and respondent No. 2 (wife) has been passed
* both parties have re-married !!
* further, petitioners Nos.2 to 6 are the parents, brother and sister in law of respondent Nos. 2 and are not concerned with the difference between the petitioner No.1 and respondent No. 2.

Still the Honourable court says, this case cannot be quashed !! ” …In the light of the aforesaid facts and circumstances and the foregoing discussions on the principles relating to exercise of inherent powers under Section 482 of Cr.P.C., this Court does not find the present case being fit for exercising the inherent powers under Section 482 of Cr.P.C. in the present case. Finding no merit in the present petition, the present petition is dismissed….”


IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : September 30, 2016

CRL.M.C. 303/2016

SACHIN & ORS                                        ….. Petitioners
Through:          Mr.Neeraj Gupta, Advocate.

versus

STATE & ANR                                          ….. Respondents
Through:     Ms. Meenakshi Chauhan, Additional
Public Prosecutor for the State

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S.TEJI, J.

  1.   1. By this petition filed under Section 482 of Cr. P.C. the petitioner is seeking quashing of FIR No. 927/2007, registered under Section 498-A/406/34 of IPC at Police Station Saraswati Vihar, Delhi.
  2.   2. In nutshell, the case of the petitioner is that the marriage of the petitioner was solemnized with respondent No. 2 on 09.02.2007 as per Hindu Rites and Ceremonies at Delhi and from 11.02.2007, respondent No. 2 started living separately. They did not cohabitate with each other since the date of their separation and there is no issue out of his wedlock. On lodging a complaint by respondent No. 2 which was registered as FIR No. 927/2007, the trial began. Even efforts were made by elders and relatives of both the sides to sort out and reconcile the disputes between them but TO no avail.
  3.   3. At the time of filing an application for seeking anticipatory bail, both the parties agreed to settle their dispute amicably. Accordingly a settlement according to which the petitioner agreed to pay a sum of Rs.4.5 lacs to respondent No. 2 for past, present and future maintenance, permanent alimony, dowry, istridhan articles, etc. A statement to this effect was also recorded before the learned Additional Sessions Judge. The settlement was later on modified on 11.12.2007 and the one time alimony was reduced from 4.5 to 4.25 lacs. Both the parties decided to dissolve their marriage through mutual consent and get the FIR quashed.
  4.   4. It is further contention of the petitioner that he had paid a sum of Rs.2 lacs at the time of grant of anticipatory bail; and further sum of Rs. 1 lac on 09.09.2008 at the time of recording of statement in the first motion and another sum of Rs.1 lac at the time of recording statement in second motion on 25.09.2008. The balance of Rs.25,000/- was to be paid at the time of making statement before this Court for quashing the FIR.
  5.   5. It is further contention of the petitioner that the decree of divorce between the petitioner and respondent No. 2 has been passed and now both the parties are leading their independent life. That both the parties have re-married and are settled happily in their present family life. But the proceedings under Section 498-A/406/34 of IPC are still pending before learned Metropolitan Magistrate, Rohini Courts, Delhi. It is the further contention of the petitioner that respondent No. 2 is not attending the Court proceedings since the date of passing of decree of divorce. It is only during the proceedings before the learned Metropolitan Magistrate the petitioner was advised to prefer the present petition for quashing of the FIR before this Court.
  6.   6. In the aforesaid facts and circumstances, the petitioner contended that the marriage between the parties has been irretrievably broken and the marriage has already been dissolved by decree of divorce with mutual consent, even the claims have been fully settled between the parties, there is no purpose of continuing the criminal proceedings emanating from the FIR in question. It is further submitted that the petitioner Nos.2 to 6 are the parents, brother and sister in law of respondent Nos. 2 and are not concerned with the difference between the petitioner No.1 and respondent No. 2. At last, the petitioner has prayed for quashing of the FIR in question as no fruitful purpose would be served in continuing the proceedings emanating from the FIR in question.
  7.   7. In support of the aforesaid submissions, the learned counsel for the petitioner has referred to the judgment of this court in Crl. M.C. No.3230-32/2006 titled as Purshotam Gupta & Ors. Vs. State & Anr, decided on 23.01.2008. Learned counsel for the petitioner further contended that the said judgment also referred the judgment of the Apex Court in Ruchi Agarwal vs. Amit Kumar Agrawal & Others, (2005) 3 SCC 2009 and Mohd. Shamim vs. Nahid Begum (Smt.), (2005) 3 SCC 302, in which on the similar facts, where the complaint under Section 498A/406/34 was filed by the complainant, later divorce by mutual consent was obtained, terms of the settlement were also complied with and the payment made by the petitioner were encashed by the respondent (wife), but she was not coming forward for quashing of the FIR. In those judgments, the Hon’ble Apex Court had quashed the FIRs.
  8.   8. On 25.01.2016, the present petition was taken up for hearing when the notice was directed to be issued to respondent No. 2 for 02.05.2016. As per service report, the notice issued to respondent No. 2 was awaited and fresh notices were ordered to be issued for 17th August 2016. The report in respect of notice issued for that date was to the effect that no such person is residing at the given address. Learned counsel for the petitioner requested for that the petition be heard finally on the basis of the settlement arrived at between the parties; the decree of divorce by mutual consent was obtained from the competent Court; both the parties have remarried and the fact that the respondent No. 2 (wife) is not contesting her complaint before the Trial Court. Perusal of the petition itself reveals that no other specific ground has been raised by the petitioner for exercising the inherent powers under Section 482 of the Cr.P.C. by this Court.
  9.   9. In Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Others, AIR 2008 SC 251, the Apex Court held as under:     “Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”
  10.   10. So far as the cases relating to quashing of complaint/FIR are concerned, the Hon’ble Supreme Court has already framed the guidelines/principles for quashing the complaints/FIR, in a landmark judgment in State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors., 1992 SCC Supl. (1) 335, which have been reiterated in a recent judgment of the Supreme Court in Criminal Appeal No. 773 of 2003, titled as Sundar Babu & Ors. vs. State of Tamil Nadu decided on 19.02.2009, the extracts of which are reproduced hereunder:

| Though the scope for interference while exercising jurisdiction under
| Sec.482 Cr.P.C. is limited, but it can be made in cases as spelt out
| in the case of Bhajan Lal. The illustrative examples laid down
| therein are as follows:
|
|  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 FIR do not disclose a cognizable
| offence, justifying an investigation by police officers under
| Sec.156(1) of the Code except under an order of a Magistrate within
| the purview of Sec.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 Sec. 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.”

  1. The Hon’ble Supreme Court further went on to observe as under:

| “The parameters for exercise of power under Sec.482 have been laid
| down by this Court in several cases. The Section does not confer any
| new power on the High Court. It only saves the inherent power which
| the Court possessed before the enactment of the Code. It envisages
| three circumstances, under which the inherent jurisdiction may be
| exercised, namely, (i) to give effect to an order under the Code,
| (ii) to prevent abuse of the process of court, and (iii) to otherwise
| secure the ends of justice.
|
| It is neither possible nor desirable to lay down any inflexible
| rule, which would govern the exercise of inherent jurisdiction. No
| legislative enactment dealing with procedure can provide for all
| cases that may possibly arise. Courts, therefore, have inherent
| powers apart from express provisions of law, which are necessary for
| proper discharge of functions and duties imposed upon them by law.
| That is the doctrine, which finds expression in the section, which
| merely recognizes and preserves inherent powers of the High Courts.
| All courts, whether civil or criminal possess, in the absence of any
| express provision, as inherent in their constitution, all such powers
| as are necessary to do the right and to undo a wrong in course of
| administration of justice on the principle “quando lex aliquid alicui
| concedit, concedere videtur et id sine quo res ipsae esse non potest”
| (when the law gives a person anything it gives him that without which
| it cannot exist). While exercising powers under the section, the
| court does not function as a court of appeal or revision. Inherent
| jurisdiction under the section though wide has to be exercised
| sparingly, carefully and with caution and only when such exercise is
| justified by the tests specifically laid down in the section itself.
| It is to be exercised ex debito justitiae to do real and substantial
| justice for the administration of which alone courts exist. Authority
| of the court exists for advancement of justice and if any attempt is
| made to abuse that authority so as to produce injustice, the court
| has power to prevent abuse. It would be an abuse of process of the
| court to allow any action, which would result in injustice and
| prevent promotion of justice. In exercise of the powers court would
| be justified to quash any proceeding if it finds that
| initiation/continuance of it amounts to abuse of the process of court
| or quashing of these proceedings would otherwise serve the ends of
| justice.
|
| As noted above, the powers possessed by the High Court under Sec.482
| of the Code are very wide and the very plenitude of the power
| requires great caution in its exercise. Court must be careful to see
| that its decision in exercise of this power is based on sound
| principles. The inherent power should not be exercised to stifle a
| legitimate prosecution. The High Court being the highest court of a
| State should normally refrain from giving a prima facie decision in a
| case where the entire facts are incomplete and hazy, more so when the
| evidence has not been collected and produced before the Court and the
| issues involved, whether factual or legal, are of magnitude and
| cannot be seen in their true perspective without sufficient material.
| Of course, no hard-and-fast rule can be laid down in regard to cases
| in which the High Court will exercise its extraordinary jurisdiction
| of quashing the proceeding at any stage.”

  1. From the submission made on behalf of the petitioner, this Court does not find even a single averment to the effect that the allegations made in the FIR do not constitute or make out any case against the petitioner or that there is no evidence against the petitioner regarding commission of a cognizable offence. The petitioner has also not contended that the allegations made in the FIR are so absurd or improbable or the fact that the criminal complaint filed against the petitioner is manifestly attended with mala fide or the proceedings are maliciously instituted with an ulterior motives for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge.
  2. In the light of the aforesaid facts and circumstances and the foregoing discussions on the principles relating to exercise of inherent powers under Section 482 of Cr.P.C., this Court does not find the present case being fit for exercising the inherent powers under Section 482 of Cr.P.C. in the present case. Finding no merit in the present petition, the present petition is dismissed.

  3. Before parting with the order, this court would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the present petition. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the Trial Court seized of the trial.

  4. In view of the aforesaid discussions, the present petition filed by the petitioner is dismissed.

(P.S.TEJI) JUDGE

SEPTEMBER 30, 2016

pkb

Is everyone telling you to RUN and quash the case ? you think it’s easy ? read this post again !

When one is hit with 498a initial reactions are a mixture of “why me”, “It can’t happen to me … there is something wrong her..” , “I’m honest so I’ll be declared innocent, not guilty in three months (or say very soon ) , etc.. etc…

Slowly the mood changes to anger, anxiety etc

At this point some people think they can run to the High court and quash the case

they must have read something somewhere and will assume a quash is easy piecy

A quash isn’t easy IF you haven’t planned well and in many cases it isn’t easy EVEN If you have planned a lot

Many a time a Quash is a risky proposition

some times it is a pure gamble … its just expecting you can convince the judge and get a quash

Read this case for details