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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
JAVED IQBAL WANI, J.
Ab. Rashid Qureshi (Dr.) and Another – Petitioners
Versus
Sheenum Qayoom (Mst.) – Respondent
CRM (M) No. 464 of 2022, Crl. M. No. 1323 of 2022
Decided On : 18-05-2023
QUASHMENT - DOMESTIC VIOLENCE AND CRIMINAL COMPLAINT - Protection of Women from Domestic Violence Act, 2005; IPC Sections 403, 406, 420, 506; Cr.P.C. Section 482 - The court discussed the inherent powers under Section 482 Cr.P.C. to quash proceedings that lack merit. It emphasized the necessity of mens rea for IPC Sections 403 and 406, highlighting that mere retention of property without dishonest intent does not constitute misappropriation or breach of trust. The court found that the allegations did not establish the required elements of the offences, leading to the quashing of the complaint and the Magistrate's order.
Fact of the Case:
The petitioners sought to quash a criminal complaint filed by the respondent alleging domestic violence and various IPC offences following a turbulent marriage that ended in divorce. The respondent claimed that valuable items were misappropriated by the petitioners after she was evicted from her matrimonial home.
Finding of the Court:
The court found that the allegations in the complaint did not establish the essential elements of the offences under IPC Sections 403 and 406, as there was no evidence of dishonest misappropriation or conversion of property by the petitioners. The Magistrate's order was deemed to lack proper application of mind.
Issues: Whether the allegations in the complaint constituted offences under IPC Sections 403 and 406, and whether the Magistrate properly applied his mind before summoning the petitioners.
Ratio Decidendi: The court reiterated that for offences under Sections 403 and 406 IPC, mens rea is essential, and mere retention of property without dishonest intent does not suffice. The Magistrate must apply his mind to the facts and law before summoning an accused.
Final Decision: The court quashed the impugned complaint and the proceedings initiated against the petitioners, concluding that the allegations did not constitute any offence.
JUDGMENT :
JAVED IQBAL WANI, J.
1. The petitioners in the instant petition filed under section 482 Cr.P.C. seek quashment of Criminal Complaint titled Mst. Sheenum Qayoom v. Aabid Rasheed & Ors. (for short 'the impugned complaint') proceedings initiated thereon pending before the Court of Judicial Magistrate 2nd Additional Munsiff, Srinagar (for short 'the Magistrate') along with order dated 22.07.2022 (for short the 'impugned order').
2. Before adverting to the grounds of challenge urged in the petition in hand, a brief background emerging therefrom reveals that one Aabid Rashid Qureshi, (an adopted son of petitioner herein) came to be married to respondent herein in the month of June, 2014 which marriage to the ill luck remained turbulent and resulted into its termination upon pronouncement of 'Talak' by the said Aabid Rashid Qureshi on 15.12.2021. The said Aabid Rashid Qureshi and respondent herein after their marriage are stated to have been putting up separately from the petitioners since 08.03.2021 and the petitioners claim to have been residing in their single story residential house being owned and possessed by them situated at Sector-B, Jeelan-abad Colony, Peerbagh, Hyderpora, Srinagar living post retirement life being doctors and suffering from multiple ailments.
3. The respondent herein is stated to have filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act') on 26.02.2022 against her above named ex-husband Aabid Rashid Qureshi and the petitioners herein alleging therein commission of domestic violence upon her, before the Court of 2nd Additional Munsiff, Srinagar.
4. The impugned Criminal Complaint also simultaneously is stated to have been filed by the respondent herein against the petitioners herein including her ex-husband for commission of offences under sections 403, 406, 420 and 506 IPC before the Magistrate wherein the Magistrate is stated to have initially deferred issuance of process and directed holding of an enquiry by SHO Police Station Humhama and in response whereof, the Police Station concerned is stated to have submitted a report and on being not satisfied with the said report, the Magistrate is stated to have sought yet another report from the Senior Superintendent of Police, Srinagar in the matter and upon receipt of the report therefrom on 18.04.2022, the Magistrate is stated to have heard the arguments on 04.05.2022 in the case and posted the same for orders on 25.05.2022. The Magistrate is further stated to have directed D.O. Humhama to search the residential house of the petitioners after observing that the petitioners herein did not allow the complainant respondent herein to enter her room in the said house and to take back her belongings. On 11.06.2022, the matter is stated to have been posted by the Magistrate for arguments of the complainant and fixed on 05.07.2022, on which date, the Magistrate is stated to have passed the impugned order.
5. The instant petition is being maintained by the petitioners on the grounds urged in the petition.
Heard learned counsel for the parties and perused the record.
6. The counsel for the petitioners while making his submissions in line with the contentions raised and grounds urged in the petition would seek quashment of the impugned complaint, proceedings initiated thereon including the impugned order dated 22.07.2022, whereas on the contrary, the counsel for the respondent while opposing the contentions raised and grounds urged by the counsel for the petitioners would pray for dismissal of the petition on the ground that the impugned complaint, proceedings initiated thereon including the impugned order dated 22.07.2022 cannot in law, be quashed being at an initial stage.
7. Before adverting to the rival submissions made by appearing counsel for the parties, it would be relevant and germane herein to refer to the ambit and scope of inherent power enshrined under section 482 Cr.P.C. which has been laid
Mens rea is a crucial element for establishing offences under IPC Sections 403 and 406, and the Magistrate must demonstrate application of mind in summoning accused persons.
The court held that allegations in a complaint must substantiate a prima facie case; mere accusations without evidence do not constitute an offence, especially when intended to harass.
It is well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection; it should be exercised to see that the process of law is not abused or misused.
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The court emphasized the importance of complying with the preconditions for seeking investigation under Section 156(3) of Cr.P.C. and highlighted the protection under Section 465(2) of Cr.P.C., stati....
Specific allegations against the accused are necessary in a criminal complaint, and implicating relatives in matrimonial disputes without a prima facie case should be discouraged.
The Court held that the essential ingredients of the offences alleged against the petitioners are not present. The Court also noted that the dispute between the parties is essentially civil in nature....
The absence of necessary elements for a breach of trust under IPC Section 409 necessitates quashing the summoning order.
(1) Issuance of process – Mere existence of some grounds which would be material in deciding whether accused should be convicted or acquitted does not generally indicate that case must necessarily fa....
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