IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16048 of 2010 RASHID IZHAR @ HAPPY Versus THE STATE OF BIHAR & ANR ----------- For the Petitioner : Shri Md. Farooque Ahmad Khan, Advocate For the O.P. No. 2: Shri Arshad Jameel Hashmi, Advocate ------------ 4/ 8 .7.2010 This petition has been filed by the petitioner, who is the husband of the complainant Naghma Parveen so as to getting the prosecution quashed which was initiated on the basis of Complaint Case no. 70 C of 2010 upon which, the order dated 19.4.2010 was passed by the S.D.J.M., Patna directing the petitioner and other accused persons to appear before him as it appeared to him that they had committed certain offence for which there was sufficient ground to proceed against them. Complaint petition is a long and lengthy draft. However, it is not denied that the complainant was married to the petitioner on 23.8.2007 and further that she was residing in the house of the petitioner just thereafter. As per the allegations, things started taking bad turn and it was alleged that the petitioner and other accused persons started ill- 2 treating the lady and asking her to bring rupees fifteen lacs from her parents. It was alleged that the petitioner used to assault her. Besides, the lady was forced to discontinue her studies and when she wanted to pursue it, she was again assaulted and ill treated. It was stated that so long as she prosecuted her studies the expenses thereof was never met by the accused persons and the same was met by the parents of the lady. The other allegation is that when the lady was carrying a child in her womb, she was ill treated and assaulted and the cost of delivering the child was also borne by her parents. It was alleged that she came from the hospital to her parents‟ house and the family members of the petitioner went there and assured that no act of ill-treatment, etc. would be perpetrated upon her and she again came back to her matrimonial house but the accused persons, like her mother- in- law, started asking for the money along with other accused persons. She alleged that she was assaulted as well besides being abused and once they wanted to pour acid in her mouth but, she raised a cry, which attracted persons of the neighbourhood who intervened and saved her. At a particular ceremony in respect of her newly burn child, when her 3 parents came to attend the ceremony, the demand for rupees fifteen lacs was made and her parents were insulted and the accused persons abusively treated them. Lastly, in March, 2007, she was expelled from her matrimonial house by being told that unless she came after getting the aforesaid amount, she could not be allowed an entry in the house. It was stated in the complaint that at the time of her marriage, her parents had given rupees five lacs in cash, furniture of rupees two lacs and clothes to the bride and other gifts and presentations to the lady and the bride. It appears that during the course of enquiry held by the learned S.D.J.M., three witnesses were examined and on consideration of the materials, like, the statement of the complainant on solemn affirmation and those of the witnesses, the learned Magistrate came to the conclusion that there were sufficient grounds for proceeding against the accused as they appeared committing the offence under section 498A of the IPC and section 4 of the Dowry Prohibition Act. Shri Khan, learned senior counsel appearing on behalf of the petitioner, has contended while challenging the 4 propriety of the order, that the lady complainant deserted the house of the petitioner out of her own volition and the petitioner filed a petition for restitution of his conjugal rights. Not only that, the petitioner filed a criminal writ petition vide Cr.W.J.C. No. 952 of 2009 which was heard by a Division Bench, headed by the Hon‟ble the Chief Justice and by an order dated 8.1.2010, the petition was disposed of because the lady, who appeared before the bench at their direction, stated that she would like to stay with her parents and would not go with the petitioner. The order disposing of the criminal writ petition was passed on 8.1.2010. It is stated that the petitioner, on the other hand, was receiving threats from the lady and her relatives and as such he filed a Sanaha, Annexure – 4, and lastly, when Cr.W.J.C. No. 952 of 2009 was disposed of, the petitioner sent a note of divorce (Annexure 5) and therewith annexed the drafts towards payment of the maintenance for the period of Iddat, the deposit of the earnings of the lady while she was working in Mt. Carmel School besides the cost of articles, as may appear from the details of the same in the said divorce note which was accompanied by the photo copies of the three drafts. It was further stated that the divorce was 5 communicated to the lady by speed post but, that was not received by her though it was received by her father. The receipts of transmitting the divorce through speed post are Annexures 6 and 7. Besides, the petitioner had communicated Khola as desired by the complainant in the premises of this court on 8.1.2010 and that was published in Urdu daily „Pinder‟, i.e., 11.1.2010. It was contended that the complaint petition was filed after the above events had taken place on 23.1.2010, i.e., after communication of the divorce on 8.1.2010 and as such, the very complaint petition was not maintainable inasmuch as the lady complainant was never legally wedded wife of the petitioner on that particular day. It was further contended by citing a decision rendered by me which is reported in 2008(1) PLJR 723 (Vijay Kumar and anr. Vs. The State of Bihar and anr.) that the Magistrate ought to have held intelligent enquiry as per Rule 31 of the Criminal Court Rules (hereinafter referred to as Rules) and, if he could have done that, he could have found no reason for proceeding against the accused. Learned counsel for the opposite party no. 2 (complainant) has contended that there was no 6 communication of Talaq as was admitted by the learned counsel for the petitioner also as the speed post was never delivered to the complainant who was an adult lady and who was, admittedly, the mother of the child of the petitioner. It was, as such, contended that the question of tendering Talaq to the lady could be a matter to be investigated into by the court as a fact in defence of the petitioner and on that basis, it could not be said that the marriage stood dissolved on 8.1.2010 and the complainant was no longer the wife of the petitioner. The order of cognizance or summoning has always to be judged when it is sought to be quashed by treating the allegations made in the complaint petition to be true on their face value. It is too well known to be stated that the prospective defence of the accused or any contradictions which might be appearing in the evidence of the witnesses could never be relevant to such proceedings and considering that, no order of summoning and as such the prosecution could be quashed. It is true that this Court has framed Rules for conduct of all business in subordinate courts and Rule 31 of the Rules reads as under: “The examination of the complainant and the 7 witnesses present, if any, is not to be a mere form, but an intelligent enquiry into the subject-matter of the complaint carried far enough to enable the Magistrate to exercise his judgment as to whether there is or is not sufficient ground for proceeding.” The judgment which was rendered by me in Vijay Kumar (supra) speaks on the scope and ambit of that particular Rule. But in a petition of present sort, which seeks an order of quashing of the cognizance order passed by a Magistrate after due enquiry could not be quashed merely because there is a judgment of this Court rendered by me explaining the scope of Rule 31 of the Rules if the facts of the case require that the order has to be sustained. The allegations come from the wife and I have noticed them while pointing out the facts of the case in the early part of the present order. The wife is making allegations of all sorts of being ill treated on account of not bringing rupees fifteen lacs and further being stopped from prosecuting her studies and not being taken care of when she was carrying a child in her womb and was delivering the child in the labour room of any hospital. There are some specific allegations appearing against the petitioner and his family members as to 8 how they ill treated the lady and those allegations appear supported by the witnesses who happened to be either the close acquaintance or parents, like, P.W. 2 of the lady. The facts regarding an offence of the nature as is alleged committed by the petitioner and others could be very much within the knowledge of the parents and their family members who could be relating to the lady in that connection. They have come to support the allegations. It is well known that an order of summoning passed by the magistrate could seldom be disturbed considering the defence of the accused. The petitioner has taken a plea that he divorced his wife in the very premises of this Court after the hearing of Cr. W.J.C. No. 952 of 2009 was over on 8.1.2010. If it could be so, then what was the need for the petitioner to send a written communication of the decision of him to divorce the lady through Annexure 5 by speed post (Annexure 6). What appears from Annexure 6 further is that the communication was sent on 9.1.2010 in the evening time and not on 8.1.2010 when Cr.W.J.C. No. 952 of 2009 was disposed of. It further appears to this Court that the drafts showing the payment of different amounts on the different 9 heads, which was to be paid to a divorced wife, was obtained on 8.1.2010, i.e., during the bank transaction hours which are generally in the forenoon. These facts, to me, point out that the petitioner was determined to teach a lesson to the lady for leaving him with the child and residing in her parents‟ house. I am not making any comment on the merits of the matter but, if a lady is being ill treated and tortured by her in- laws or husband, she could have justifiable reasons under law not to live in the matrimonial house. However, the allegation is that she was expelled from her matrimonial house with a warning that she would not be allowed entry in the house unless she came with rupees fifteen lacs. Under the above factual circumstances, it appears that the claim of the petitioner that he had divorced the lady remains in the realm of his defence as it could not be said that it was a decision which was taken after the events, as submitted by learned counsel, had occurred. Besides, it is not denied by the petitioner also, as was contended before this Court, that the lady did not receive the communication of the divorce. So, this again remains in realm of doubt whether it could be said to be a valid divorce under Muslim Law. 10 The above observations were not necessary for me to make but, because the arguments were advanced before me in the above light, I have to notice them and point out the loopholes in the arguments. After having gone through the facts of the case and order which is under challenge, I find that the petition appears of no merit and the same is hereby dismissed. Anil/ ( Dharnidhar Jha, J.)