Madhya Pradesh High Court
Misbhah Ui Aijaz Nizami vs The State Of Madhya Pradesh on 2 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C No.453/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2nd OF APRIL, 2024
MISCELLANEOUS CRIMINAL CASE No. 453 of 2023
BETWEEN:-
1. MISBHAH-UL AIJAZ NIZAMI S/O LATE SHRI
A.K. NIZAMI, AGED ABOUT 34 YEARS,
OCCUPATION: JOB, R/O 193, AISHBAG
STADIUM, BHOPAL (MADHYA PRADESH)
2. IQRA NIZAMI W/O AMAN QURESHI, AGED
ABOUT 25 YEARS, OCCUPATION:
HOUSEWIFE R/O 193, HOUSING BOARD
COLONY, AISHBAG, BHOPAL (MADHYA
PRADESH)
3. FARHA SHADAB NIZAMI W/O AMJAD
HUSAIN NIZAMI, AGED ABOUT 33 YEARS,
OCCUPATION: HOUSEWIFE R/O 79,
SILAWATPURA, MANGALWARA, BHOPAL
(MADHYA PRADESH)
4. SHAHIN MUMTAJ NIZAMI W/O LATE SHRI
A.K. NIZAMI, AGED ABOUT 55 YEARS,
OCCUPATION: HOUSEWIFE R/O 193
HOUSING BOARD COLONY, AISHBAG,
BHOPAL (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI SAURABH SHRIVASTAVA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION ASHOKA
GARDEN BHOPAL, DISTRICT- BHOPAL
(MADHYA PRADESH)
2. SANA NIZAMI W/O MISBHAH-UL AIJAZ
NIZAMI, AGED ABOUT 20 YEARS, AT
PRESENT R/O 05, MAYUR VIHAR COLONY,
ASHOKA GARDEN, BHOPAL, PERMANENT
R/O B-129, NAVEEN NAGAR, AISHBAG,
2 M.Cr.C No.453/2023
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI GAJENDRA PARASHAR - PANEL LAWYER)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:-
"It is therefore prayed that this Hon'ble court may kindly be pleased to allow the instant 482 application by quashing the FIR bearing No.182/2022 dated 17.03.2022 Police Station Ashoka garden, district Bhopal for offence under Section 498-A, 306 & 511 of the I.P.C. The applicants further pressed for quashment of entire Criminal proceeding pursuant to the above mentioned FIR which is pending adjudication before the 10th A.S.J. Bhopal, District Bhopal, in the interest of justice."
2. On 20/03/2024, a statement was made by counsel for the applicants that although the complainant is alive but still charge under Section 306 of IPC has been framed. Accordingly, counsel for the applicants was granted some time to file copy of order by which charges were framed.
3. Accordingly, counsel for the applicants has filed copy of order dated 03/09/2022 by which charges under Section 498-A/34 of IPC, Section 3/4 of Dowry Prohibition Act read with Section 34 of IPC and under Section 306 r/w 511 of IPC have been framed.
3 M.Cr.C No.453/20234. Thus, it is clear that on 20/03/2024, counsel for the applicants had made a misleading statement to the effect that in spite of the fact that complainant is still alive, Trial Court has framed charge under Section 306 of IPC.
5. Be that whatever it may be.
6. Heard on the question of admission.
7. By referring to the FIR lodged against the applicants, it is submitted by counsel for the applicants that information was received by Police Station with regard to the fact that Smt. Sana Nijami has been admitted in the hospital on account of consumption of some unknown poisonous substance. The said information was reduced in writing in Rojnamcha Sanha 21/22 at 16:42. Accordingly, dying declaration of complainant Sana Nijami was recorded and her statement under Section 161 of Cr.P.C. was also recorded. On a preliminary enquiry, it was found that the complainant Sana Nijami was married to Misbah Nijami on 04/01/2018 in accordance with Muslim rites and rituals. They both were blessed with a baby girl who at present is aged about 3 years. Immediately after the marriage, her husband Misbah Nijami, mother-in- law Shahin, sisters-in-law Farha and Iqra (applicants) started harassing her for demand of flat and a car. On account of cruelty meted out to her she was residing separately in her parental home. On earlier occasions also she had already lodged complaints with regard to the cruelty committed by the applicants. On 03/03/2022, she went to the house of her maternal uncle where she heard the conversation between her maternal uncle and Mousa and came to know that applicants are making preparation for second marriage of her husband Misbah and they are also intending to give divorce to her. She also came to know that 4 M.Cr.C No.453/2023 applicants are making preparation for taking custody of the child through Court, as a result she went in depression and accordingly, she consumed sleeping pills (Zolpidem). However, on account of timely treatment, she survived. A notice was issued by Police to applicant No.1 but he did not respond and accordingly, an offence under Sections 498- A, 306, 511 of IPC was registered.
8. It is submitted by counsel for the applicants that if the entire allegations are taken to be true on their face value, still no offence under Sections 306/511, 498-A/34 of IPC and Section 3/4 of Dowry Prohibition Act read with Section 34 of IPC would be made out.
9. Considered the submissions made by counsel for the applicants.
10. The dying declaration of complainant was recorded, which reads as under:-
e`R;qdkfyd dFku uke % luk futkeh LFkku & d`".kk gkWfLiVy] fyfy pkSjkgk] tgkxhjkckn Hkksiky] ¼e-iz-½ firk@ifr dk uke %& feLckg futkeh mez %& 32 o"kZ fnukad%& 07@03@2022 le;%&12%28 PM O;olk; %& xzfg.kh ¼BMS MkWDVj xzstq,V½ Tkfr %& eqfLye fuoklh %& 129] B] uohu uxj ,s'kckx HkksikyA Doctor's Opinion izekf.kr fd;k tkrk gS fd ejht c;ku nsus dh gkyr esa gSA fnukad % 07@03@2022 le; %& 12%30 PM Q %& rqEgs D;k gqvk gS \ Ans %& eSa ekufld :i ls cgqr ijs'kku gwWA eSus Sleeping pills ys yh FkhA llqjky okyksa ls ijs'kku 5 M.Cr.C No.453/2023 gksdjA Q %& ;g dSls gqvk \ Ans %& esjs ekSlkth& ewLrdh; dqjS'kh bVkok ¼m-iz-½ ls vk;s FksA os esjs llqjky okys fuoklh lkl&'kghu futkeh] cM+h uun Qjkg] NksVh uan& bdjk] esjs ifr& feLckg futkeh] llqj&e`r ls esjs ifr o esjs fj'rs dh ckr djus yxHkx 8 fnu igys muds ?kj & 193 A gkmflax cksMZ dkWyksuh] ,s'kckx Hkksiky x;s FksA mUgksua s dgk fd luk Hkkx xbZ Fkh] mUgsa lkFk ugh j[ksx a ]s cPph feLckg ¼mez&3 o"kZ½ dh dLVMh Hkh ys ysaxAs yM+dh ls rykd djok nsusA eS tc llqjky esa Fkh rc Hkh rykd dh /kedh nsrs FksA ngst dh ekax djrs FksA yxHkx 1 o"kZ igys iqfyl ds }kjk eq>s vius ?kj uohu uxj yk;k x;k FkkA llqjky okyks us ca/kd cuk dj j[kk FkkA iqfyl ds }kjk NqMk+ ;k x;kA ek;ds igqWpk;k x;kA Q %& ;g ?kVuk fdl le; o fdl LFkku ij gqbZ gSa \ Ans %& ;g ?kVuk e;wj fogkj dkWyksuh ¼ekek & vrhd vgen½ ds ?kj ij gqbZA fnukad 06@03@2022 dks Sleeping pills yxHkx le; 2%30 & 3 PM cts gqbZA eSa cgqr ijs'kku gwWA llqjky okyks us ijs'kku dj j[kk gSA eSa 3 ekpZ dks ekek ds ?kj xbZ FkhA Q %& ?kVuk ds le; dkSu&dkSu yksx Fks \ Ans %& ?kj ij esjs ekek&ekeh] 2 dftu FksA eSa vius dejs es vdsyh FkhA nokbZ ysdj lks xbZA uhan [kqyh rks vius dks gkfLiVy esa ik;kA Q %& gkWfLiVy dkSu ysdj vk;k \ Ans %& esjs ekek ekeh ysdj vk;sA Q %& vkSj dqN dguk gS \ Ans %& esjs llqjky okys esjs fj'rsnkjksa ls esjh cqjkbZ djrs gSa o eq> ij bYtke yxkrs gSA mUgksus ;g bYtke yxk;k gS fd eS 15 rkSyk lksuk o 2 yk[k :Ik;s ysdj vk;h gwWa tcfd eq>s iqfyl }kjk esjs ek;ds es yk;k x;k gSA eSus ekufld ijs'kkuh dh otg nckbZ [kkbZ gSA llqjky okys ifr] lkl o 2 uun ls ijs'kku gwWA Q %& vkids igys c;ku gq;s gSa \ Ans %& ughaA Q %& vkSj dqN dguk gS \ Ans %& llqjky okyks ls esjk 1 o"kZ ls dksbZ laidZ ugh gSA cPph esjs ikl gS mls ns[kus ugha vkrsA dkQh le;6 M.Cr.C No.453/2023
ls ijs'kku gwWA eq>s vkSj blds vykok dqN ugh dgukA gLrk{kj c;ku nsus okys ds^^
11. Since the maker of dying declaration has survived therefore such a statement can be treated as a statement recorded under Section 164 of Cr.P.C. From dying declaration, it is clear that the complainant had specifically stated that her Mousa had gone to her matrimonial house in order to have discussion about relationship of the complainant and her husband. There her Mousa was informed that complainant has run away and they would not keep her with them and would also take the custody of the child and complainant would be divorced. It was also alleged in the dying declaration that when she was residing in her matrimonial house, even at that time, applicants used to extend threat of giving divorce. They were also continuously demanding dowry and were treating her with cruelty. About one year back, she was rescued by the Police and was brought to her parental home because she was kept in captivity by her in-laws. It was further alleged that she is very disturbed and on 06/03/2022 she consumed sleeping pills as she is being harassed by her in-laws. It was further alleged that her in-laws are in habit of defaming her amongst her relatives and also in habit of alleging against her. They had also alleged that complainant has run away along with 15 Tola of Gold and cash amount of Rs. Two Lacs, whereas she was rescued by the Police and was brought to her parental home by the Police. Since she was under mental harassment therefore, she consumed sleeping pills. She is being treated with cruelty by her husband, mother- in-law and both the sisters-in-law. It was further alleged that she is residing separately for the last one year along with her child but her in-
7 M.Cr.C No.453/2023laws have not taken any care of her and even they have not come to see her and she is very depressed or in trouble.
12. The Supreme Court in the case of Rupali Devi v. State of U.P., reported in (2019) 5 SCC 384 has held as under:-
"14. "Cruelty" which is the crux of the offence under Section 498-A IPC is defined in Black's Law Dictionary to mean "the intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill- treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498-A of the Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatise the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act 8 M.Cr.C No.453/2023 of physical cruelty at such place."
13. This Court in the case of Amar Singh vs. Smt. Vimla decided on 22.06.2021 in Criminal Revision No.2376/2020 (Gwalior Bench) has held that compelling a married woman to live in her parental home amounts to cruelty.
14. Therefore, compelling a married woman to live in her parental home on account of demand of dowry by itself is a cruelty. Cruelty as defined under Section 498-A of IPC may be mental or physical.
15. After the complainant was rescued by the Police from her matrimonial house, the physical cruelty may have come to an end but mental cruelty would continue because the separation of complainant on account of demand of dowry by her in-laws would continue to traumatize her specifically when the complainant was kept under captivity and she was rescued by the Police only.
16. Furthermore, the applicants were allegedly making allegations against the complainant that she has taken away an amount of Rs. Two Lacs and 15 Tolas of Gold, whereas she was rescued by the Police.
17. Since the mental cruelty was going on, accordingly, it is held that even if there was no physical cruelty for the last one year but still the mental cruelty was going on at the hands of the applicants.
18. Furthermore, when she heard that applicants are intending to perform second marriage of her husband and they are also intending to take custody of child through Court and they are also claiming that complainant has run away from the house, then it appears that such an allegation proved to be the last nail in the Coffin thereby leaving no 9 M.Cr.C No.453/2023 hope of life thereby compelling the complainant to take decision to put an end to her life.
19. It is contended by counsel for the applicants that since no physical cruelty was committed for the last one year, therefore there was no close proximity between the attempt made by the complainant for committing suicide and the cruelty.
20. As already pointed out, cruelty can be physical as well as mental and since the mental cruelty was still going on, therefore there was close proximity between the cruelty which is being committed by the applicants and the attempt made by the complainant to commit suicide.
21. Under these circumstances, this Court is of considered opinion that a prima facie case is made out raising a grave suspicion to the effect that applicants might have committed the offence for which charges have been framed. Even otherwise, it is well established principle of law that at the stage of framing of charges or at the stage of quashment of complaint/ charge-sheet, this Court is not required to conduct a roving enquiry. If the grave suspicion indicates the commission of offence, then the charges have to be framed.
22. The Supreme Court in the case of M.E. Shivalingamurthy v. CBI, Bengaluru, reported in (2020) 2 SCC 768 has held as under :-
"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala, (2010) 2 SCC 398 :
(2010) 1 SCC (Cri) 1488]and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be 10 M.Cr.C No.453/2023 empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on.
This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of 11 M.Cr.C No.453/2023 J&K v. Sudershan Chakkar, (1995) 4 SCC 181 :
1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359])."
23. The Supreme Court in the case of Soma Chakravarty v. State, through CBI, reported in (2007) 5 SCC 403 has held as under :-
"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
* * *
19. Some of the questions, however, which have been raised by the appellant are of some 12 M.Cr.C No.453/2023 importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge."
24. The Supreme Court in the case of State (NCT of Delhi) v. Shiv Charan Bansal, reported in (2020) 2 SCC 290 has held as under :-
"39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the 13 M.Cr.C No.453/2023 stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.
40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 decided on 24-4- 2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction."
25. The Supreme Court in the case of State of Rajasthan v. Fatehkaran Mehdu, reported in (2017) 3 SCC 198 has held as under :-
"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an 14 M.Cr.C No.453/2023 offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."
26. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
27. Application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2024.04.04 14:31:15 +05'30'