Md. Nausad Khan @ Md. Naushad Khan vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 1411

IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Criminal Misc. No.45981 of 2015
(11.10.2023)
Md. Nausad Khan @ Md. Naushad Khan & Ors. ... Petitioners
vs.
State of Bihar & Anr. ... Opp. Parties

Advocates Appeared:
For the Petitioners: M/s Durgesh Nandan, Manish Prakash.
For the State : Mr. Upendra Kumar, APP.
For the O.P. No.2 : Mr. Shailesh Kumar Singh.

Headnote:
Criminal Procedure Code, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 498(A), 379 and 504 – Dowry Prohibition Act, 1961 – Sections ¾ – Dowry offences – Cognizance of offences – There is nothing in Section 482 Cr.P.C. to restrict exercise of power only so long as stage of proceeding as it was at the time of petition continues to be same – It would be travesty of justice to hold that proceeding initiated against person cannot be interfered with when it reaches its next stage, even if interference is required to prevent abuse of process of Court and to meet ends of justice – It would be grave injustice to subject petitioner to agony and travails of criminal trial – Inherent power of High Court has been saved to advance justice and not to frustrate it – However, when trial has reached stage of Judgment, it is not desirable to act upon petition – After judgment, petitioner would have liberty to file appeal wherein he may raise all points of law and facts – Court is duty bound to entertain and act upon petition even when trial has reached stage of prosecution evidence. (Paras 18 to 21)
Indian Penal Code, 1860 – Sections 498(A), 379 and 504 – Dowry Prohibition Act, 1961 – Sections ¾ – Criminal Procedure Code, 1973 – Sections 200, 202 and 482 – Dowry offences – Cognizance of offences – For taking cognizance of any offence and issuing summons to any accused in a complaint case, there must be a prima facie offence made out on the basis of allegation made in complaint and statements made by complainant and his witnesses during inquiry under Section 202 Cr.P.C. – However, such allegation or statements should not be patently absurd and inherently improbable to a prudent mind – Moreover, allegation/statements made in complaint and during inquiry under Section 200 Cr.P.C. should be examined as a whole, but veracity of such statements could not be examined at this stage – Statements have to be taken at their face value to see whether prima facie case is made out or not – General and omnibus allegation against relatives of husband is not sufficient to summon them in such criminal complaints – Otherwise, it would be abuse of process of Court and travesty of justice – Petition partly dismissed. (Paras 33, 43, 44 and 45)

Jitendra Kumar, J. – The present petition, under Section 482 Cr. P.C. has been preferred against the order dated 04.12.2014, passed by Ld. Sub-Divisional Judicial Magistrate, Aurangabad in Complaint Case No. 02 of 2014/ Trial No. 2229 of 2014/C.I.S. No. 7281 of 2014, whereby cognizance has been taken for offence punishable under Sections 498(A), 379 and 504 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against all the accused persons including the petitioners. The petitioners have also prayed for any other relief(s), which may be deemed fit and proper in the facts and circumstances of the case.

2. The allegation, as per the complaint, is that the complainant, Nigar Naz (Respondent no.2 herein) was married with petitioner no.1, Md. Nausad Khan @ Md. Naushad Khan on 16.02.2012 as per Muslim rites and customs. There was demand of 2 lacs towards dowry at the time of marriage. However, marriage was somehow solemnized and thereafter, the complainant joined the matrimonial home of her husband. However, as per allegation, at matrimonial home, she was not treated like a bride on account of non-fulfillment of demand of dowry of 2 lacs and an Alto car. She was always taunted causing mental cruelty to her and she was told that she would be treated like a servant till she fulfilled the demand of dowry. For 15 days, she was deprived of food and after much request, she was taken back to her Maike by her husband and just after one day, she was again taken back to his matrimonial home by her husband. She was also subjected to assault by legs and fists and she was made to wash their clothes. In April, 2012, she was taken back to her Maike by her mother, but she was not taken care of by the accused persons. Thereafter, her parents and relatives took her back to her matrimonial home in May, 2012. She was again subjected to torture by the accused persons. On 27.08.2012, she was assaulted by all the accused persons and ousted from the matrimonial home and all her belongings were snatched. At that time, she was carrying pregnancy of six months. Thereafter, she called her parents from public telephone booth. Then she was taken back to her Maike by her parents and since then, she has been living at her Maike. On 26.11.2012, she gave birth to a female child, but not a single penny was spent by the accused persons on that occasion. It is further alleged that on 22.12.2013, parents-in-law of the complainant came to her Maike and demanded 2 lakhs and an Alto car, otherwise they would get their son re-married.

3. Ld. Magistrate, after examining the complainant, Nigar Naz and three other witnesses, namely Rizwan (distant relative of the complainant), Rustam Ali (father of the complainant) and Irshad Ahmad Khan (distant relative of the complainant) on solemn affirmation and on the basis of material on record, passed the impugned order taking cognizance against nine accused persons including the petitioners for offence punishable under Sections 498(A), 379 and 504 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act.

4. Subsequently, co-accused Pravej Khan and Sahin Praveen, who are the brother-in-law and sister-in-law respectively of the complainant preferred Cr. Misc. No. 3022 of 2015 and co-accused Master Jamaiyat Hussain and Julekha Khatoon, who are the parents-in-law of the complainant, preferred Cr. Misc. No. 4409 of 2015 for quashing the cognizance order dated 04.12.2014. A co-ordinate Bench of this Court by a common order dated 08.12.2017, dismissed Cr. Misc. No. 4409 of 2015, which was preferred by the parents-in-law of the complainant. However, Cr. Misc. No. 3022 of 2015, which was preferred by the brother-in-law and sister-in-law of the complainant, was allowed.

5. Ld. counsel for the petitioners submits that petitioner no.1 is the husband of the complainant and petitioner nos. 2 to 5 are the brothers of the husband of the complainant. He further submits that the impugned order has been passed mechanically wit