Musstt Rehana Begum vs State of Assam

Musstt Rehana Begum vs State of Assam- Supreme Court Case 2022 - 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 118 of 2022
(Arising out of SLP(Crl) No 559 of 2022)
(D No 23852 of 2019)
Musstt Rehana Begum .... Appellant(s)
Versus
State of Assam & Anr ....Respondent(s)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 Delay condoned.
2 Leave granted.
3 This appeal arises from a judgment of a Single Judge of the Gauhati High Court
dated 4 April 2018 in Criminal Petition No 179 of 2016. The Single Judge has
dismissed an application filed by the appellant under Section 482 of the Code of
Criminal Procedure 19731
 for quashing a complaint. The complaint, CR Case No
2512 of 2015, is pending in the Court of SDJM(S) II, Kamrup (M), Guwahati for
offences under Sections 494 and 495 of the Indian Penal Code 18602
.
1 “CrPC”
2 “IPC”
2
4 The second respondent filed a complaint on 16 October 2015 before the Chief
Judicial Magistrate stating that on 11 January 1996, he and the appellant were
married in accordance with the tenets of Muslim law. According to the complaint,
the second respondent came to know that the appellant was previously married
to another person by the name of Shoukat Ali. The allegation is that during the
subsistence of the previous marriage, she married the second respondent by
suppressing the fact that she had a subsisting marriage. According to the
complaint, the appellant has committed an offence punishable under Section
495 of the IPC since she concealed the fact that she had a subsisting marriage
when she married the second respondent.
5 The case of the appellant is that she and the second respondent got married on
11 January 1996. Alleging matrimonial abuse at the hands of the second
respondent on account of her failure to fulfill his demands for dowry, the
appellant lodged a complaint and a criminal case, namely Case No 51/11, under
Section 498A of IPC was accordingly registered at the ‘All Women Police Station’.
On 5 September 2011, the second respondent is alleged to have forwarded a
purported divorce certificate dated 18 August 2011 through the Sadar Kazi,
Kamrup, Guwahati to a neighbour of the appellant. On 17 September 2011, the
appellant instituted proceedings before the Principal Judge of Family Court – I,
Kamrup, which was numbered as FC (Civil) Case No 545 of 2011 to challenge the
purported divorce. By a judgment dated 20 July 2017, the Principal Judge of
Family Court – I declared the divorce purportedly given by the second
respondent to the appellant as null and void. In the meantime, on 11 September
2015, Complaint Case No 149/2015 was registered in regard to the allegedly
forged certificate produced by the second respondent in collusion with the Sadar
Kazi for offences punishable under Sections 420, 406, 468 and 34 of IPC. On 16
October 2015, the second respondent lodged a complaint case, being CR Case
No 2512 of 2015, alleging that the appellant had committed an offence
3
punishable under Section 495 of IPC.
6 The appellant instituted a proceeding under Section 482 of CrPC. The Single Judge
of the High Court dismissed the petition by a judgment dated 4 April 2018. The
High Court has held that “it is highly disputed” whether the appellant had entered
into a marital tie with another person prior to the marriage with the complainant
and whether the earlier marriage had ended in a valid divorce. Moreover, the High
Court held that the appellant had not come up with a specific case that she was
neither married earlier or that there was a divorce. Hence, in the view of the High
Court, the allegation in the complaint involves matter of trial and a petition under
Section 482 CrPC could not be entertained. The petition was consequently
dismissed.
7 Mr Fuzail Ahmad Ayyubi, counsel appearing on behalf of the appellant, submitted
that the complaint which was lodged by the second respondent was essentially a
counter blast to the complaint which was lodged by the appellant that the
purported certificate of divorce which is obtained by the second respondent in
collusion with the Sadar Kazi was forged. Counsel submitted that the complaint
alleging that the appellant had entered into a wedlock with the second
respondent during the subsistence of an earlier marriage was lodged on 16
October 2015, soon after the appellant had lodged a complaint against the
second respondent on 11 September 2015. That apart, it was submitted that the
finding in the judgment of the Family Court that the appellant did not have a
subsisting marriage with Shoukat Ali has attained finality and is binding inter
partes. In this backdrop, it was urged that the continuance of the criminal
proceedings would amount to an abuse of the process of the court.
8 Notice was issued in these proceedings by an order dated 2 August 2019, which
reads as follows:
4
“Learned counsel appearing on behalf of the petitioner
has relied upon the finding which was recorded by the
Principal Judge, Family Court-I, Kamrup, Guwahati on 20
July 2017 (Annexure P-4) that the second respondent had
failed to prove that the petitioner had a subsisting
marriage when she married him.
Issue notice on the application for condonation of delay
and on the Special Leave Petition, returnable in eight
weeks.
Until the next date of listing, there shall be a stay of
further proceedings in CR Case No 2512/2015 pending in
the Court of SDJM (S)II, Kamrup (M), Guwahati.”
9 The office report indicates that the second respondent has been served. Yet, no
appearance has been entered on his behalf.
10 Mr Nalin Kohli, AAG, appears on behalf of the State of Assam with Ms Diksha Rai.
Opposing the submissions which have been urged on behalf of the appellant, the
AAG submitted that the issue as to whether the appellant had a prior marriage
with Shoukat Ali is contentious and that this would emerge from the judgment of
the Family Court. Hence, the AAG submitted that the allegation in the complaint
would raise matters of trial and, hence, the High Court was not justified in
declining to exercise the jurisdiction under Section 482 of CrPC.
11 The gravamen of the complaint which has been lodged by the second
respondent is that on 11 January 1996, when he and the appellant entered into
marriage, the appellant had a prior subsisting marriage as a consequence of
which she is guilty of an offence punishable under Section 494 of IPC. Now, from
the record which has been produced before the Court, it emerges that the
appellant moved the Family Court for seeking a declaration that the divorce
which was pronounced by the second respondent was null and void under
Muslim law. In his written statement, the second respondent specifically
supported the purported talaq and the divorce certificate issued by the Sadar
Kazi under the Muslim personal law. In the additional written statement, the
5
second respondent took the plea that the appellant did not disclose to him that
she had a prior marriage with another person which was solemnized on 11 June
1987. Among the issues which were framed by the Family Court, the second
issue read as follows:
“(2) Whether the petitioner was already married to Shoukat
Ali, s/o Raja Ali @ Bhaiya Ali when getting married to the
respondent?”
12 Evidence was adduced before the Family Court. The second respondent deposed
before the Family Court. The Principal Judge of the Family Court at Guwahati, by
a judgment dated 20 July 2017, issued a declaration that the divorce which was
purportedly granted by the second respondent to her is null and void. The
conclusion which has been arrived at by the Principal Judge is extracted below:
“In view of the above discussions it is clear that the talaq
pronounced by the respondent No.1 is not as per due
procedure, as no reconciliation took place between the parties
and as such the talaq is not valid one. It is also found that the
respondent has failed to prove that the petitioner was already
married to Shoukat Ali, s/o Raja Ali @ Bhaiya Ali when getting
married to the respondent.”
13 The above judgment clearly shows that whether (i) the appellant had a prior
subsisting marriage with another person; and (ii) the second respondent had
obtained a valid divorce was in issue before the Family Court. The finding of fact
as between the appellant and the second respondent is that the appellant did
not have a subsisting prior marriage when she married him. The judgment of the
Family Court was questioned in MAT Appeal No 47 of 2017. A Division Bench of
the High Court dismissed the appeal for non-prosecution on 20 June 2019,
having noted that on the previous occasion on 27 May 2019, no one had
appeared on behalf of the second respondent in those proceedings. The order of
the High Court continues to hold the field. Yet, the impugned judgement has held
that the factum of the subsisting marriage of the appellant is a contentious
matter and has declined to quash the criminal complaint against the appellant.
6
14 In Neeharika Infrastructure v. State of Maharashtra3
, a three-judge Bench
of this Court analysed the precedent of this Court and culled out the relevant
principles that govern the law on quashing of a first information report4
 under
Section 482 of the CrPC. The Court held:
 “57. From the aforesaid decisions of this Court, right from the
decision of the Privy Council in the case of Khawaja Nazir
Ahmad(supra), the following principles of law emerge:
i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into
cognizable offences;
 ii) Courts would not thwart any investigation into the
cognizable offences;
 iii) However, in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report the Court will not permit an investigation to go on;
 iv) The power of quashing should be exercised sparingly
with circumspection, in the ‘rarest of rare cases’. (The
rarest of rare cases standard in its application for quashing
under Section 482 Cr.P.C. is not to be confused with the
norm which has been formulated in the context of the
death penalty, as explained previously by this Court);
 v) While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR/complaint;
 vi) Criminal proceedings ought not to be scuttled at the
initial stage;
 vii) Quashing of a complaint/FIR should be an exception
and a rarity than an ordinary rule;
 viii) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities. The inherent
power of the court is, however, recognised to secure the
ends of justice or prevent the above of the process by
Section 482 Cr.P.C.
3 2021 SCC OnLine SC 315
4 “FIR”
7
 ix) The functions of the judiciary and the police are
complementary, not overlapping;
 x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and the
judicial process should not interfere at the stage of
investigation of offences;
 xi) Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice;
 xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by the
police is in progress, the court should not go into the
merits of the allegations in the FIR. Police must be
permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process of law.
During or after investigation, if the investigating officer
finds that there is no substance in the application made by
the complainant, the investigating officer may file an
appropriate report/summary before the learned Magistrate
which may be considered by the learned Magistrate in
accordance with the known procedure;
 xiii) The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be
cautious. It casts an onerous and more diligent duty on
the court;
 xiv) However, at the same time, the court, if it thinks
fit, regard being had to the parameters of quashing
and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
in the cases of R.P. Kapur (supra) and Bhajan
Lal(supra), has the jurisdiction to quash the
FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the
alleged accused, the court when it exercises the power
under Section 482 Cr.P.C., only has to consider whether or
not the allegations in the FIR disclose the commission of a
cognizable offence and is not required to consider on
merits whether the allegations make out a cognizable
offence or not and the court has to permit the
investigating agency/police to investigate the allegations
in the FIR.”
(emphasis supplied)
8
 The parameters for quashing an FIR have been laid down in State of Haryana
v. Bhajan Lal5 by a two-judge Bench of this Court. The Court has held:
 “102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be exercised.
 (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 Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 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 Section 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.
5 1992 Supp (1) SCC 335 [“Bhajan Lal”]
9
 (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.”
(emphasis supplied)
 In State of Andhra Pradesh v. Golconda Linga Swamy6
, a two-judge
Bench of this Court elaborated on the types of materials the High Court can
assess to quash an FIR. The Court drew a distinction between consideration of
materials that were tendered as evidence and appreciation of such evidence.
Only such material that manifestly fails to prove the accusation in the FIR can be
considered for quashing an FIR. The Court held:
 “5…..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 such abuse. It
would be an abuse of the 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 or continuance of
it amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to be
quashed, it is permissible to look into the materials to
assess what the complainant has alleged and whether
any offence is made out even if the allegations are
accepted in toto.”
 6. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri
LJ 1239] this Court summarised some categories of cases where
inherent power can and should be exercised to quash the
proceedings : (AIR p. 869, para 6)
6 (2004) 6 SCC 522
10
 (i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
 (ii) where the allegations in the first information report or
complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
 (iii) where the allegations constitute an offence,
but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to
prove the charge.
 7. In dealing with the last category, it is important to
bear in mind the distinction between a case where there
is no legal evidence or where there is evidence which is
clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the accusations.
When exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon
an enquiry whether the evidence in question is reliable
or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function
of the trial Judge. Judicial process, no doubt should not be an
instrument of oppression, or, needless harassment. Court
should be circumspect and judicious in exercising discretion and
should take all relevant facts and circumstances into
consideration before issuing process, lest it would be an
instrument in the hands of a private complainant to unleash
vendetta to harass any person needlessly. At the same time the
section is not an instrument handed over to an accused to
short-circuit a prosecution and bring about its sudden death…..”
(emphasis supplied)
15 The precedent of this Court clarifies that in certain circumstances, the High Court
is entitled to consider other materials before exercising its powers of quashing
under Section 482 of the CrPC. In the present case the appellant and the second
respondent were parties to the decision of the Family Court. No contentious
material or disputed issues of evidence arise. In the above backdrop, allowing
the criminal proceeding to proceed for an offence under Sections 494 and 495 of
IPC would constitute an abuse of the process. As between the appellant and the
second respondent the issue as to whether she had a subsisting marriage on the
11
date on which she entered into a marriage with the second respondent is the
subject matter of a conclusive finding of the Principal Judge of the Family Court
which has attained finality. Explanation (b) to Section 7(1) of the Family Courts
Act 1984 expressly confers the Family Court with jurisdiction to determine the
matrimonial status of a person. Section 7(1) of the Family Courts Act 1984 grants
a Family Court with the status of a District Court and Section 7(2) confers it with
jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the
CrPC, thus enabling to collect evidence to make such a determination. Thus,
relying on the judgement of the Family Court which has jurisdiction to decide the
gravamen of the offence alleged in the criminal complaint, would not be same as
relying on evidentiary materials that are due for appreciation by the Trial Court,
such as the investigation report before it is forwarded to the Magistrate7
. An
analogous factual matrix came up for determination before this Court in P S
Rajya v. State of Bihar8
. This Court quashed an FIR against an accused under
the Prevention of Corruption Act 1947 by noticing that the accused had been
exonerated on an identical charge in the relevant departmental proceedings in
light of a report submitted by the Central Vigilance Commission and concurred
by the Union Public Service Commission. A two-judge Bench of this Court relied
on the principles laid down in Bhajan Lal (supra) and quashed the FIR by
holding:
 “17. At the outset we may point out that the learned counsel
for the respondent could not but accept the position that the
standard of proof required to establish the guilt in a criminal
case is far higher than the standard of proof required to
establish the guilt in the departmental proceedings. He also
accepted that in the present case, the charge in the
departmental proceedings and in the criminal proceedings is
one and the same. He did not dispute the findings rendered in
the departmental proceedings and the ultimate result of it. On
these premises, if we proceed further then there is no
difficulty in accepting the case of the appellant. For if
7 Pratibha v. Rameshwari Devi, (2007) 12 SCC 369, paras 17-21; State of Madhya Pradesh
v. Awadh Kishore Gupta, (2004) 1 SCC 691, para 13
8 (1996) 9 SCC 1
12
the charge which is identical could not be established in
a departmental proceedings and in view of the admitted
discrepancies in the reports submitted by the valuers
one wonders what is there further to proceed against
the appellant in criminal proceedings…..
 23. Even though all these facts including the Report of the
Central Vigilance Commission were brought to the notice of the
High Court, unfortunately, the High Court took a view that the
issues raised had to be gone into in the final proceedings and
the Report of the Central Vigilance Commission, exonerating the
appellant of the same charge in departmental proceedings
would not conclude the criminal case against the appellant. We
have already held that for the reasons given, on the peculiar
facts of this case, the criminal proceedings initiated against the
appellant cannot be pursued. Therefore, we do not agree with
the view taken by the High Court as stated above. These are
the reasons for our order dated 27-3-1996 for allowing the
appeal and quashing the impugned criminal proceedings and
giving consequential reliefs.”
(emphasis supplied)
 Therefore, in this case, the Single Judge of the High Court was not justified in
coming to the conclusion that the issue as to whether the appellant had a
subsisting prior marriage was a ‘highly contentious matter’ which has to be tried
on the basis of the evidence on the record.
16 For the above reasons, we allow the appeal and set aside the impugned
judgment and order of the Gauhati High Court dated 4 April 2018. Criminal
Petition No 179 of 2016 instituted by the appellant for quashing the complaint is
allowed. The complaint, CR Case No 2512 of 2015, pending in the Court of
SDJM(S) II, Kamrup (M), Guwahati is quashed.
13
17 Pending application, if any, stands disposed of.
 …………...…...….......………………........J.
 [Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
 [Bela M Trivedi]
New Delhi;
January 21, 2022
-S-

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर