KAHKASHAN KAUSAR @ SONAM vs STATE OF BIHAR

KAHKASHAN KAUSAR @ SONAM vs STATE OF BIHAR - Supreme Court Case 2022

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 195 OF 2022
(arising out of S.L.P (Crl.) No. 6545 OF 2020)
KAHKASHAN KAUSAR @ SONAM & ORS. … APPELLANT (S)
VERSUS
STATE OF BIHAR & ORS. … RESPONDENT(S)
JUDGMENT
KRISHNA MURARI, J.
Leave granted.
2. This appeal is directed against the judgment and order dated 13.11.2019
passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019,
filed by the Appellants under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated
01.04.2019 implicating the Appellants for offences under Sections 341, 323,
379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter
referred to as ‘IPC’). The High Court vide order impugned herein dismissed the
same.
1
Factual Matrix
3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @
Soni, was married to Md. Ikram on 18.09.17. The appellants herein are
the in-laws of Respondent No. 5. On 11.12.17, the said Respondent
initially instituted a criminal complaint against her husband and the
appellants before the Court of Chief Judicial Magistrate, Purnea alleging
demand for dowry and harassment. Thereafter, when the file was put up
before the Sub Divisional Judicial Magistrate Court, Purnea, for passing
order at the stage of issuance of summon, the Ld. Magistrate concluded
that upon perusal of material evidence no prima-facie case was made
against the in-laws and that the allegations levelled against them were not
specific in nature. The said court, however, took cognizance for the
offence under section 498A, 323 IPC against the husband Md. Ikram, and
issued summons. This dispute was eventually resolved and Respondent
No. 5 herein came back to the matrimonial home.
4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another
written complaint for registration of FIR under sections 341, 323, 379,
354, 498A read with Section 34 IPC against her husband Md. Ikram and
the appellants herein. The complaint inter-alia alleged that all the accused
2
were pressurizing the Respondent wife herein to purchase a car as dowry,
and threatened to forcibly terminate her pregnancy if the demands were
not met.
5. Aggrieved, the Husband and appellant herein filed a criminal writ
petition before the Patna High Court, for quashing of the said FIR dated
01.04.19, which was dismissed vide impugned judgment. The High Court
observed that the averments made in the FIR prima-facie disclosed
commission of an offence and therefore the matter was required to be
investigated by the police. The Appellants herein, being the niece
(Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law
(Respondent No. 3), and brother in law (Respondent No. 4) have thereby
approached this court by way of the present Special Leave Petition.
Contentions made by the Appellants
6. The counsel for the Appellants herein contends, that the Police Officer
was duty bound to conduct a preliminary inquiry before registering the FIR as
this instant case falls within the categories of cases on which a preliminary
enquiry may be made, as mandated by this court in Lalita Kumari Vs.
Government of U.P. & Ors.1
 .
1. (2014) 2 SCC 1
3
7. It is also submitted that previously in the year 2017, the Respondent wife
had instituted a criminal complaint on similar allegations, whereby the Ld.
Judicial Magistrate after considering the evidence issued summons only against
the husband, and found that the allegations made against the appellants herein
were omnibus in nature. Further, it is submitted that the FIR in question has
been made with a revengeful intent, merely to harass the Appellant in-laws
herein, and should be dealt with accordingly. Reliance is placed on Social
Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of
Law And Justice & Ors.2
, wherein it was observed:-
“4. Regarding the constitutionality of Section 498-A IPC, in
Sushil Kumar Sharma v. Union of India and others , it was
held by the Supreme Court:-
"Provision of S. 498A of Penal Code is not unconstitutional
and ultra vires. Mere possibility of abuse of a provision of
law does not per se invalidate a legislation. Hence plea that
S. 498A has no legal or constitutional foundation is not
tenable. The object of the provisions is prevention of the
dowry menace. But many instances have come to light where
the complaints are not bona fide and have been filed with
oblique motive. In such cases acquittal of the accused does
not in all cases wipe out the ignominy suffered during and
prior to trial. Sometimes adverse media coverage adds to the
misery. The question, therefore, is what remedial measures
can be taken to prevent abuse of the well-intentioned
provision. Merely because the provision is constitutional and
intra vires, does not give a licence to unscrupulous persons
to wreck personal vendetta or unleash harassment. It may,
therefore, become necessary for the legislature to find out
ways how the makers of frivolous complaints or allegations
2. (2018) 10 SCC 443
4
can be appropriately dealt with. Till then the Courts have to
take care of the situation within the existing frame-work.”
Contention made by Respondent No. 1 – State of Bihar
8. Respondent No. 1 herein i.e., the State of Bihar, contends that the
present FIR pertains to offences committed in the year 2019, after
assurance was given by the husband Md. Ikram before the Ld. Principal
Judge Purnea, to not harass the Respondent wife for dowry, and treat her
properly. However, the husband and appellants, despite the assurances,
have continued their demand for dowry and threatened with forcefully
terminating the Respondent wife’s pregnancy. These acts constitute a
fresh cause of action and therefore the FIR in question herein dated
01.04.19, is distinct and independent, and cannot be termed as a repetition
of an earlier FIR dated 11.12.17. Moreover, an investigation was carried
out pursuant to the FIR and the case has been found true against all
accused persons, therefore Lalita Kumari (Supra) will not apply in the
present case.
Contentions made by Respondent No 5 – Complainant Wife
5
9. Respondent No. 5 contends that of the total seven accused, the FIR
in question was challenged by only five accused including her husband. It
is argued that the impugned order is evidently accepted by the accused
husband Md. Ikram @Sikandar as he has not challenged the impugned
High Court judgment. Further, as far as involvement of the four accused
Appellant in-laws is concerned, it is not only reflected from the
averments made in the FIR, but also corroborated from the oral and
documentary evidence collected by the investigating officer during
investigation, culminating into filing of charge-sheet against all seven
accused including the four Appellants herein. The allegations thus made
in the FIR are sufficient to make out a prima facie case, and nonmentioning of pendency of Complaint case of year 2017, at the time of
filing the complaint 01.04.19 is not fatal for the case of the prosecution.
10. It is further submitted that the allegations made in the FIR are
serious in nature and the Respondent wife has been repeatedly tortured
physically and mentally in order to fulfil the demand for dowry. Further,
even if the contentions made by the Respondent No. 5 herein are
disputed, by the Appellant in-laws, their veracity can be tested in trial
before the Trial Court. It is further contended that this court has also taken
a consistent view with regard to exercise of power under S. 482 Cr.P.C.,
6
in Rajesh Bajaj Vs. State of NCT of Delhi & Ors.3
, wherein it has been
clearly held that even if a prima facie case is made out disclosing the
ingredients of an offence, Court should not quash the complaint.
Therefore, the impugned order can in no way be termed as perverse,
cryptic or erroneous and therefore warrant no interference by this Hon’ble
Court.
Issue Involved
11. Having perused the relevant facts and contentions made by the
Appellants and Respondents, in our considered opinion, the foremost
issue which requires determination in the instant case is whether
allegations made against the in-laws Appellants are in the nature of
general omnibus allegations and therefore liable to be quashed?
12. Before we delve into greater detail on the nature and content of
allegations made, it becomes pertinent to mention that incorporation of
section 498A of IPC was aimed at preventing cruelty committed upon a
woman by her husband and her in-laws, by facilitating rapid state
intervention. However, it is equally true, that in recent times, matrimonial
litigation in the country has also increased significantly and there is a
3. (1999) 3 SCC 259
7
greater disaffection and friction surrounding the institution of marriage,
now, more than ever. This has resulted in an increased tendency to
employ provisions such as 498A IPC as instruments to settle personal
scores against the husband and his relatives.
13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of
U.P. & Anr.4
, has observed:-
“14. Section 498-A was inserted in the statute with the
laudable object of punishing cruelty at the hands of husband
or his relatives against a wife particularly when such cruelty
had potential to result in suicide or murder of a woman as
mentioned in the statement of Objects and Reasons of the Act
46 of 1983. The expression 'cruelty' in Section 498A covers
conduct which may drive the woman to commit suicide or
cause grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large number
of cases continue to be filed under already referred to some
of the statistics from the Crime Records Bureau. This Court
had earlier noticed the fact that most of such complaints are
filed in the heat of the moment over trivial issues. Many of
such complaints are not bona fide. At the time of filing of the
complaint, implications and consequences are not visualized.
At times such complaints lead to uncalled for harassment not
only to the accused but also to the complainant. Uncalled for
arrest may ruin the chances of settlement.”
4. (2018) 10 SCC 472
8
14. Previously, in the landmark judgment of this court in Arnesh
Kumar Vs. State of Bihar and Anr.5
, it was also observed:-
“4. There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A IPC was
introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his
relatives. The fact that Section 498-A IPC is a cognizable
and non-bailable offence has lent it a dubious place of pride
amongst the provisions that are used as weapons rather
than shield by disgruntled wives. The simplest way to harass
is to get the husband and his relatives arrested under this
provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters
living abroad for decades are arrested.”
15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr.6
, it
has also been observed:-
“32. It is a matter of common experience that most of these
complaints under section 498A IPC are filed in the heat of
the moment over trivial issues without proper deliberations.
We come across a large number of such complaints which
are not even bona fide and are filed with oblique motive. At
the same time, rapid increase in the number of genuine cases
of dowry harassment are also a matter of serious concern.
33. The learned members of the Bar have enormous social
responsibility and obligation to ensure that the social fiber of
family life is not ruined or demolished. They must ensure that
exaggerated versions of small incidents should not be
reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their
5. (2014) 8 SCC 273
6. (2010) 7 SCC 667
9
concurrence. The learned members of the Bar who belong to
a noble profession must maintain its noble traditions and
should treat every complaint under section 498A as a basic
human problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that human
problem. They must discharge their duties to the best of their
abilities to ensure that social fiber, peace and tranquility of
the society remains intact. The members of the Bar should
also ensure that one complaint should not lead to multiple
cases.
34. Unfortunately, at the time of filing of the complaint the
implications and consequences are not properly visualized by
the complainant that such complaint can lead to
insurmountable harassment, agony and pain to the
complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and
punish the guilty and protect the innocent. To find out the
truth is a herculean task in majority of these complaints. The
tendency of implicating husband and all his immediate
relations is also not uncommon. At times, even after the
conclusion of criminal trial, it is difficult to ascertain the real
truth. The courts have to be extremely careful and cautious in
dealing with these complaints and must take pragmatic
realities into consideration while dealing with matrimonial
cases. The allegations of harassment of husband's close
relations who had been living in different cities and
never visited or rarely visited the place where the
complainant resided would have an entirely different
complexion. The allegations of the complaint are required to
be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal
trials lead to rancour, acrimony and bitterness in the
relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the complainant if
the husband or the husband's relations had to remain in jail
even for a few days, it would ruin the chances of amicable
settlement altogether. The process of suffering is extremely
long and painful.”
10
16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7
, it was observed:-
“21. It would be relevant at this stage to take note of an apt
observation of this Court recorded in the matter of G.V. Rao
vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693
wherein also in a matrimonial dispute, this Court had held
that the High Court should have quashed the complaint
arising out of a matrimonial dispute wherein all family
members had been roped into the matrimonial litigation
which was quashed and set aside. Their Lordships observed
therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent
times. Marriage is a sacred ceremony, main purpose of
which is to enable the young couple to settle down in life and
live peacefully. But little matrimonial skirmishes suddenly
erupt which often assume serious proportions resulting in
heinous crimes in which elders of the family are also
involved with the result that those who could have
counselled and brought about rapprochement are rendered
helpless on their being arrayed as accused in the criminal
case. There are many reasons which need not be mentioned
here for not encouraging matrimonial litigation so that the
parties may ponder over their defaults and terminate the
disputes amicably by mutual agreement instead of fighting it
out in a court of law where it takes years and years to
conclude and in that process the parties lose their “young”
days in chasing their cases in different courts.” The view
taken by the judges in this matter was that the courts would
not encourage such disputes.”
17. Recently, in K. Subba Rao v. The State of Telangana8
, it was also
observed that:-
7. (2012) 10 SCC 741
8. (2018) 14 SCC 452
11
“6. The Courts should be careful in proceeding against the
distant relatives in crimes pertaining to matrimonial disputes
and dowry deaths. The relatives of the husband should not be
roped in on the basis of omnibus allegations unless specific
instances of their involvement in the crime are made out.”
18. The above-mentioned decisions clearly demonstrate that this court
has at numerous instances expressed concern over the misuse of section
498A IPC and the increased tendency of implicating relatives of the
husband in matrimonial disputes, without analysing the long term
ramifications of a trial on the complainant as well as the accused. It is
further manifest from the said judgments that false implication by way of
general omnibus allegations made in the course of matrimonial dispute, if
left unchecked would result in misuse of the process of law. Therefore,
this court by way of its judgments has warned the courts from proceeding
against the relatives and in-laws of the husband when no prima facie case
is made out against them.
19. Coming to the facts of this case, upon a perusal of the contents of
the FIR dated 01.04.19, it is revealed that general allegations are levelled
against the Appellants. The complainant alleged that ‘all accused harassed
her mentally and threatened her of terminating her pregnancy’.
Furthermore, no specific and distinct allegations have been made against
12
either of the Appellants herein, i.e., none of the Appellants have been
attributed any specific role in furtherance of the general allegations made
against them. This simply leads to a situation wherein one fails to
ascertain the role played by each accused in furtherance of the offence.
The allegations are therefore general and omnibus and can at best be said
to have been made out on account of small skirmishes. Insofar as
husband is concerned, since he has not appealed against the order of the
High court, we have not examined the veracity of allegations made
against him. However, as far as the Appellants are concerned, the
allegations made against them being general and omnibus, do not warrant
prosecution.
20. Furthermore, regarding similar allegations of harassment and
demand for car as dowry made in a previous FIR. Respondent No. 1 i.e.,
the State of Bihar, contends that the present FIR pertained to offences
committed in the year 2019, after assurance was given by the husband
Md. Ikram before the Ld. Principal Judge Purnea, to not harass the
Respondent wife herein for dowry, and treat her properly. However,
despite the assurances, all accused continued their demands and
harassment. It is thereby contended that the acts constitute a fresh cause
of action and therefore the FIR in question herein dated 01.04.19, is
13
distinct and independent, and cannot be termed as a repetition of an
earlier FIR dated 11.12.17.
21. Here it must be borne in mind that although the two FIRs may
constitute two independent instances, based on separate transactions, the
present complaint fails to establish specific allegations against the in-laws
of the Respondent wife. Allowing prosecution in the absence of clear
allegations against the in-laws Appellants would simply result in an abuse
of the process of law.
22. Therefore, upon consideration of the relevant circumstances and in
the absence of any specific role attributed to the accused appellants, it
would be unjust if the Appellants are forced to go through the tribulations
of a trial, i.e., general and omnibus allegations cannot manifest in a
situation where the relatives of the complainant’s husband are forced to
undergo trial. It has been highlighted by this court in varied instances,
that a criminal trial leading to an eventual acquittal also inflicts severe
scars upon the accused, and such an exercise must therefore be
discouraged.
23. In view of the above facts and discussions, the impugned order
dated 13.11.2019 passed by the High Court of Patna is set aside. The
14
impugned F.I.R. No. 248 of 2019 against the Appellants under Sections
341, 323, 379, 354, 498A read with Section 34 IPC stands quashed.
24. As a result, appeal stands allowed.
....…..........................J.
(S. ABDUL NAZEER)
…................................J.
(KRISHNA MURARI)
NEW DELHI;
08TH FEBRUARY, 2022
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