Jharkhand High Court
Md. Aadil Ansari vs The State Of Jharkhand on 5 January, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 452 of 2022
1. Md. Aadil Ansari, son of Md. Dhuran Ansari @ Hazrat Ansari @ Hazrat
@ Ghuran Ansari;
2. Sarful Ansari, son of Muddin Ansari;
3. Amin Ansari, son of Rahim Ansari;
4. Md. Dhuran Ansari @ Hazrat Ansari @ Hazrat @ Ghuran Ansari, son of
Rahim Ansari;
5. Nasima Khatoon, wife of Md. Dhuran Ansari @ Hazrat Ansari@ Hazrat
@ Ghuran Ansari;
6. Hakida Khatoon, wife of Momin Ansari;
7. Momin Ansari, son of Rahim Ansari
All are residents of village: Gajni, Bhandra, PO: Gajni, PS: Kairo,
District: Lohardaga. ... Appellants
-Versus-
1. The State of Jharkhand
2. Smt. Gangi Kumari, wife of Shamim Ansari, resident of village: Gajni,
Bhandra, PO: Gajni, PS: Kairo, District: Lohardaga. ...Respondents
---
CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants :- Mr. Paramveer Singh Bajaj, Advocate;
Mr. Vikas Kumar, Advocate
For the State :- Mrs. Vandana Bharti, APP
For the Resp. No.2 :- Mr. Sheo Kumar Singh, Advocate;
Mr. Raj Nandan Chatterjee, Advocate
...
CAV on: 07/11/2023 Pronounced on: 5 / 01 /2024
Ratnaker Bhengra, J.
Mr. Paramveer Singh Bajaj, the learned counsel for the appellants; Mrs. Vandana Bharti, the learned counsel for the State, and; Mr. Sheo Kumar Singh, the learned counsel for the respondent no.2 have appeared.
2. This criminal appeal is directed against the order dated 31.05.2022 passed in ABP No.112 of 2022 by the learned District & Additional Sessions Judge-I, Lohardaga in connection with Complaint Case No. 31(A) of 2014, corresponding to SC/ST Case No. 01 of 2020, registered under sections 498A and 295A of the Indian Penal Code and section 3(x)
(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and further directing to release the appellants on bail.
3. The prosecution case, in brief, is that the complainant belongs to the Scheduled Tribe community and she married with Shamim Ansari by performing inter religious marriage. Thereafter she visited her matrimonial house. She was blessed with one son and three daughters. Accused persons, 2 Cr. Appeal (SJ) No. 452 of 2022 namely, (1) Md. Aadil Ansari, (2) Sarful Ansari, (3) Amin Ansari, (4) Ghuran Ansari @ Hazrat Ansari, (5) Nasima Khatoon, (6) Hakida Khatoon, and (7) Momin Ansari in her matrimonial home used to pass casteist remarks over her by uttering word 'Kolhin'. Accused persons also tormented her physically and mentally by abusing her and passing casteist remarks upon her. They did not provide her meal and cloths as she belonged to Scheduled Tribe community. They used to spank her on several occasions.. Lastly, the complainant and her husband were compelled to reside separately from other family members. On the basis of the complaint petition, complaint case was instituted vide Complaint Case No. 31(A) of 2014 for the offence under section 498A of the Indian Penal Code and under section 3(x) (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act against the accused appellants.
4. By order dated 12.10.2023 of this Court, the solemn affirmation and the statements of inquiry witnesses were called for, which were subsequently received.
Arguments of the learned counsel for the appellants:
5. The learned counsel for the appellants has argued that since the parties had married as per Muslim rites, no offence under section 295A of the Indian Penal Code is made out and neither the offence under section 3(x) (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is made out.
6. The learned counsel for the appellants has submitted that by her own admission she had lodged a case bearing Case No. 328 of 2013 under the provisions of section 107 of the Code of Criminal Procedure, then lodging of the current case is simply malicious as is apparent from paragraph no.18 of her complaint.
7. The learned counsel has further referred to paragraph no.15 of complaint petition and argued that the complainant has complained that she has been in frustrating circumstances being confined to one room with her husband and threatened that if she does not leave the house, then they will murder her and her husband. The learned counsel says that this is basically a dispute over property.
8. The learned counsel for the appellants has also argued that after about one year of Case No. 328 of 2013, the present complaint case was 3 Cr. Appeal (SJ) No. 452 of 2022 filed and this is clearly and obviously a delay, and hence the said complaint case is thus malicious.
9. Referring to the various sections involved, the learned counsel for the appellants has submitted that regarding section 3(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, it is not clear as to where the occurrence took place. Regarding section 3 (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the learned counsel for the appellants has submitted that it is not clear case where the respondents are being forced out and no date or time is given when they were forced out and to where.
10. The learned counsel has also argued that in the complaint of the complainant there is reference to the room where the respondent is staying with her husband and that she was being forced out of the house makes it amply clear that it is clearly a property dispute.
11. Regarding section 295A of the Indian Penal Code, the learned counsel for the appellants has submitted that this offence pertains to religious aspects and not caste aspects and the allegations are such that section 295A of the Indian Penal Code is not made out.
12. The learned counsel for the appellants has also argued that no specific role has been attributed to any of the accused or the appellants herein. Further there is a blanket allegations to as many as nine accused, seven of whom are appellants herein before this Hon'ble Court.
13. The learned counsel has then taken resort to the judgment of the Hon'ble Supreme Court in "K. Subba Rao & others v. The State of Telangana" (2018) 14 SCC 452 wherein in paragraph no.6 the Hon'ble Supreme Court has observed as under:
"6. Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335. 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. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC 551."
14. The learned counsel has then referred to the judgment of the Hon'ble Supreme Court in "Kahkashan Kausar @ Sonam and others v.
4 Cr. Appeal (SJ) No. 452 of 2022 State of Bihar and others" (2022) 6 SCC 599 wherein in paragraph nos. 17 & 21 the Hon'ble Supreme Court has observed thus:
"17. 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.
21. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it woul 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."
Arguments of the learned counsel for the respondent no.2:
15. The learned counsel for the respondent no.2 has replied and submitted to the point of delay that there is no question of delay in lodging of FIR. First of all, the offence is a continuing offence from the day she was married and continues till now. Further, the lodging of the complaint case is actually a follow up of the earlier case lodged under section 107 of the Code of Criminal Procedure. The learned counsel for the respondent no.2 has said that the respondent had gone to the police with all the allegations of cruelty and abuse and the police registered the case under section 107 of the Code of Criminal Procedure for breach of peace. Then feeling aggrieved by this step taken by the police, she was compelled to subsequently file the complaint case. Hence, there is no delay. Moreover, there is no delay also because of continuing offences. In such circumstances, the complaint case cannot also be malicious prosecution.
16. The learned counsel for the respondent no.2 has then read out sections 3(x) and 3(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, which are quoted here-in-below:
"3(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
3(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, ... ... ... ..."
5 Cr. Appeal (SJ) No. 452 of 2022
17. The learned counsel then submits from the complaint petition, solemn affirmation by the respondent and the inquiry statements of witnesses, the humiliation on the bases of caste as per section 3(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and the ousting from room or house as per section 3(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act are fully made out.
18. The learned counsel has specifically pointed out from paragraph nos. 10, 12, 13 of the complaint petition that all the accused persons used to refer to the complainant as "aboriginal Kolhin low caste"
(Adivasi Kohlin Neech Jaati) and did not eat food touched by her hands and that the accused persons used to regularly assault (marpit) the complainant and her husband and on the pretext of her caste threatened to oust her from the house and that the accused persons have publicized in the village that the complainant is an aboriginal Kolhin of low caste and they will not allow her to settle there at any cost. The learned counsel has then submitted that as per paragraph nos. 10, 12, 13 of the complaint the offences of cruelty and atrocity as per section 498A of the Indian Penal Code and sections 3(x) and 3(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act are fully made out. The learned counsel has further submitted that as per the impugned order the inquiry witnesses have also stated that complainant was persecuted by the accused-appellants on several occasions and they used to pass casteist slur. With respect to cited judgments, the facts may be different in that here it is not a case of wife versus husband, but both wife and husband being victims of an inter caste marriage.
Arguments of the learned counsel for the State:
19. The learned counsel for the State has also supported the argument of the learned counsel for the respondent no.2.
CONCLUSION
20. Having heard the learned counsel for the appellants, the learned counsel for the respondent no.2 as well as the learned counsel for the State and having gone through the records of the case, the annexed complaint case, annexed cognizance order, impugned order and solemn affirmation and statements of inquiry witnesses, it is revealed that after filing of complaint and examination of complainant and witnesses, cognizance was initially 6 Cr. Appeal (SJ) No. 452 of 2022 taken by the learned SDJM, Lohardaga, by order dated 15.05.2014 for the offence under section 323 of the Indian Penal Code. This was challenged before the Sessions Court vide Criminal Revision No. 13 of 2014 in which matter was remanded back with a direction to pass reasoned order. Thereafter, the order dated 15.05.2014 was set aside by the Revisional Court. Thereafter, subsequent order of cognizance was passed by the learned SDJM, Lohardaga on 03.03.2015 in which prima facie materials were found against the accused-appellants for the offence under sections 498A and 295A of the Indian Penal Code as well as sections 3(x) and 3(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Further from the solemn affirmation of the complainant-respondent no.2 as well as the statements of the inquiry witnesses, namely, Shamin Ansari, Rajamat Ansari, Sabane Khatoon, and Dafawa Bibi, they have also supported the prosecution case. Hence, on the aforesaid facts and circumstances, I am not inclined to grant the privilege of anticipatory bail to the appellants, named above, in connection with Complaint Case No. 31(A) of 2014, corresponding to SC/ST Case No. 01 of 2020.
21. Accordingly, prayer for anticipatory bail of the appellants is rejected.
22. Cr. Appeal (SJ) No. 452 of 2022 is dismissed.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, Dated: 5 / 01 /2024 S.B.