Madras High Court
Syed Javeed Aahmad vs State Rep. By on 12 December, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.12.2018
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.R.C.No.486 of 2011
Syed Javeed Aahmad .. Petitioner
Vs
State rep. by
The Inspector of Police,
W-3 All Women Police Station,
Chennai-1. .. Respondent
Criminal revision preferred under Section 397 (1) r/w 401 of Cr.P.C.
against the judgment dated 13.08.2010 passed by the Additional District and
Sessions Judge, FTC No.I, Chennai in Crl.A.No.49 of 2007 confirming the
conviction and sentence passed by the III Metropolitan Magistrate, George
Town, Chennai in C.C.No.3604 of 2001 dated 29.01.2007.
For Petitioners : Mr.Adithya Varadarajan,
Legal Aid counsel
For Respondent : Mrs.P.Kritika Kamal, GA (Crl. Side)
ORDER
This Revision Petition has been preferred challenging the judgment dated 13.08.2010 passed by the learned Additional District and Sessions Judge, http://www.judis.nic.in Fast Track Court No.I, Chennai in Crl.A.No.49 of 2007. 2
2.It is the case of the prosecution that the marriage of Fathima (PW1) and Syed Javeed Ahmad (A1), the petitioner herein, was solemnized on 25.06.2000 and at the time of marriage, Fathima's father, Mohammed Basha (PW2) gave 20 sovereigns of gold jewels, Rs.20,000/- cash and household articles worth Rs.2,00,000/- to the bridegroom; after marriage, she lived with her husband in joint household; her husband and her father-in-law, Syed Niyaz Ahmad, demanded more dowry from her and two weeks later, they sent her back to her natal home; her parents mediated with her husband's family and sent her back; again, in her matrimonial home, she was subjected to cruelty by her husband and father-in-law; on coming to know, her father fell sick and therefore, she came home to see him, after which, her husband and in-laws did not permit her into the matrimonial home.
3.On the complaint (Ex.P1) dated 11.06.2001 lodged by her, the Police registered a case in Crime No.21 of 2001 on 21.06.2001 under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961 (for brevity "the DP Act") and prepared the printed FIR (Ex.P2); investigation of the case was taken over by Mangayarkarasi (PW6), Inspector of Police, who examined the witnesses and filed final report in C.C.No.3604 of 2001 before the III Metropolitan Magistrate, George Town, Chennai, against the petitioner and his father, Syed Niyaz Ahmad (A2).
http://www.judis.nic.in
4.On the appearance of the petitioner and Syed Niyaz Ahmad (A2), 3 they were furnished with the copies of the relied upon documents under Section 207 Cr.P.C. The trial Court framed charges under Section 498-A IPC and Section 4 of the DP Act against them and when questioned, they pleaded 'not guilty'.
5.To prove the case, the prosecution examined six witnesses and marked two exhibits. During trial, Syed Niyaz Ahmad (A2) died. When the trial Court questioned the petitioner under Section 313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The petitioner examined himself as DW1 and marked five exhibits.
6.After considering the evidence on record and hearing either side, the trial Court, by judgment dated 29.01.2007 in C.C.No.3604 of 2001, convicted the petitioner and sentenced him as under :
Provision under which Sentence
convicted
Under Section 498-A 1 year rigorous imprisonment and fine
IPC of Rs.3,000/- in default to undergo six
months rigorous imprisonment
Under Section 4 of the 1 year rigorous imprisonment and fine DP Act of Rs.2,000/- in default to undergo six months rigorous imprisonment Challenging the conviction and sentence, the petitioner preferred Crl.A.No.49 of 2007, which has been dismissed by the Additional District and Sessions Judge (Fast Track Court No.I), Chennai on 13.08.2010, aggrieved by which, he has http://www.judis.nic.in preferred the present revision petition.
4
7.This revision petition was filed through an Advocate Mr.Mahmad Sherif, who obtained suspension of sentence and bail from this Court in M.P.No.1 of 2011 in Crl.R.C.No.486 of 2011 on 30.03.2011, after which, the counsel did not appear before this Court. Therefore, this Court passed the following order on 08.06.2018 :
"This Criminal Revision has been filed against the order in Criminal Appeal No.49 of 2007 confirming the order of conviction and sentence passed in C.C.No.3604 of 2001. The petitioner in this revision is an accused.
2. This Court by an order dated 30.03.2011 made in M.P.No.1 of 2011 suspended the substantive sentence of imprisonment on condition that the petitioner shall execute a bond for a sum of Rs.10,000/- along with two sureties for a like sum to the satisfaction of the learned Metropolitan Magistrate- III, George Town, Chennai and on a further condition that the petitioner shall appear before the said Court on first working day of every month at 10.30 a.m.
3. This Revision is of the year 2011 and it is seen from the case records that there were no representation on the side of the revision petitioner in the earlier two occasions. The suspension of sentence is granted by this Court only with the belief that the petitioner/accused will co-operate with the pending proceedings and will not be a reason for delay in disposal of the criminal revision. However, from the conduct of the petitioner, it is seen that there has been absolutely no representation on the side of the petitioner for the last two occasions.
4. I therefore, direct the issuance of Non-Bailable Warrant to the petitioner. The Public Prosecutor is directed to execute the Non-Bailable Warrant and produce the petitioner/accused before this Court on 22.06.2018. It is made clear that this Non-Bailable Warrant is issued only to ensure the presence of the petitioner and put him on notice that the bond executed by him shall be cancelled and the suspension of sentence will be revoked, if there is no co-operation from the side of the petitioner/accused in disposal of this Revision Petition.
5. At this juncture, it is brought to my notice that the learned counsel for the petitioner is no more. http://www.judis.nic.in
6. Post this matter on 22.06.2018."5
8.Thereafter, on 05.12.2018, this Court passed the following order :
"Challenging the conviction and the sentence, the accused has filed the present Revision Petition through Mr.Mohammed Sherif, Advocate and this Court, in M.P.No.1 of 2011, has suspended the sentence of imprisonment on 30.03.2011 and released the accused on bail.
2. When the matter came up for final hearing before this Court on 08.03.2018, there was no representation on behalf of the accused and therefore, this Court has issued NBW for securing his presence.
3. Today, Ms.K.Shajitha, WHC 17040, W10 AWPS, is present before this Court.
4. On instructions, learned Government Advocate (Crl.Side) submitted that despite best efforts, the police have not been able to trace the accused till date.
5. Be that as it may, this Court appoints Mr.Adithya Varadarajan, Enrl.No.3132/2013, Advocate to represent the accused as legal aid counsel and he has been furnished with the typed set of papers.
Post “for orders” on 12.12.2018."
9.Heard Mr.Adithya Varadarajan, learned counsel appointed by this Court for the revision petitioner and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the respondent State.
10.Mr.Adithya Varadarajan, learned counsel formulated the following points :
(a) the evidence of Fathima (PW1) does not disclose the commission of an offence under Section 498-A IPC or Section 4 of the DP Act;
(b) even in the complaint (Ex.P1) given by Fathima (PW1), there are no specific allegations of cruelty against the petitioner;
(c) the prosecution itself is a counterblast for the talaq pronounced http://www.judis.nic.in by the petitioner before Kazi on 16.04.2001;6
(d) Fathima (PW1) has unequivocally admitted that all the stridhana articles had been returned by the petitioner;
(e) the petitioner has got into the witness box and given evidence as DW1 and marked Exs.D1 to D5, which has not been considered by the trial Court and the appellate Court in the right perspective.
11.Per contra, learned Government Advocate (Crl. Side) refuted the contentions put forth by the learned counsel for the petitioner.
12.Before adverting to the rival submissions, it may be apposite or it may be relevant to state here that, while exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of the trial Court and the lower appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Others, etc. [(2004)7 SCC 659.] “22.The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the http://www.judis.nic.in High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, 7 “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
(emphasis supplied)
23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus: (SCC p. 651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.”
13.The factum of marriage between the petitioner and Fathima (PW1) has been admitted and what is in dispute is, whether the evidence on http://www.judis.nic.in record discloses the ingredients of the offences under Section 498-A IPC and Section 4 of the DP Act. Fathima (PW1), in her evidence, has stated that she 8 got married to the petitioner on 25.06.2000 and at the time of marriage, her parents gave her 20 sovereigns of gold jewels and Rs.20,000/- in cash and household articles worth Rs.2,00,000/-; after marriage, she lived with her husband in No.16, Ramamoorthy Colony, Thiru Vi Ka Nagar, in joint household; the petitioner demanded a television set and a two-wheeler from her; the family members of the petitioner prevented her from speaking to her parents; two weeks later, they called her aunt and sent her to her natal home; her parents approached some mediators and with their help, she was sent back to her matrimonial home; there, once again, the petitioner started ill-treating her saying that he ought not to have married her; on coming to know that she was not happy, her father fell sick, she went to her natal home to see her father and thereafter, she was not permitted to join her husband; efforts taken by her father to settle the issue amicably failed; when the petitioner insisted that he wanted divorce, she fell at his feet and begged him, not to divorce her, on seeing which, her father-in-law exhorted the petitioner, not to take her back and threatened to physically assault her; then, she was informed that she has been divorced by pronouncing of talaq; hence, she had no other option, but to lodge police complaint.
14.In the cross-examination, she was confronted with the telegram that was sent by her father-in-law alleging that, she had gone on her own to her natal home and that, she is refusing to join her husband. She admitted in the cross-examination that the petitioner returned all the stridhana articles http://www.judis.nic.in including the cash of Rs.20,000/-, during investigation; she denied the 9 suggestion that a case has been foisted on the petitioner as a counterblast for pronouncement of talaq. The evidence of Mohammed Basha (PW2/father of PW1) and Parvesh Ahmed, (PW3/brother of PW1) corroborate the testimony of Fathima (PW1).
15.Coming to the evidence of the petitioner as DW1, he has not spoken anything about the allegations made against him, but, has merely marked Exs.D1 to D5. Ex.D1, copy of the telegram dated 05.08.2000, sent by the deceased (Syed Niyaz Ahmad/A2) to Mohammed Basha (PW2/father of PW1), is self-serving. In the telegram, it is stated that, on 02.08.2000 at 07.00 p.m., he (Syed Niyaz Ahmad/A2) visited the house of Mohammed Basha (PW2) and asked him to send Fathima (PW1), but, he refused. It is further stated in the telegram that, Fathima (PW1) has taken away all the jewels from the house, whereas, Syed Usman (PW4), in his evidence, has stated that the petitioner informed him that they are going to vacate the house and asked the parents of Fathima (PW1) to come and take all her articles, pursuant to which, they went to the house of the petitioner and collected the articles. Thus, it is obvious that the articles including the jewels were returned only after the telegram (Ex.D1) and the telegram (Ex.D1) was only a smoke screen to hide the misdeeds of the petitioner.
16.The petitioner (DW1) has further stated that, he went to the Kazi and pronounced talaq on 16.04.2001 and sent the communication by http://www.judis.nic.in registered post to Fathima (PW1) and the communication was marked as 10 Ex.D2. Along with the communication, he has enclosed the postal receipt, on perusal of which, it is seen that, it bears the date, viz., 07.03.2001. The trial Court has discussed this aspect threadbare in its judgment in paragraph No.3 of inner page No.25. The trial Court has given a finding that, the petitioner had manipulated the records to make it look, as if he had given talaq and had communicated it to Fathima (PW1), so as to wriggle out of the prosecution, little realising that Islamic personal law cannot act as a shield against a prosecution under the IPC. As regards the allegations of cruelty, the definition of the word "cruelty" under Section 498-A is indeed wide, so as to encompass not only physical but also mental cruelty.
17.In this case, the evidence of Fathima (PW1) that, she fell at the feet of the petitioner and begged him not to disown her, despite which, the petitioner had surreptitiously obtained talaq, in the opinion of this Court, is sufficient proof of inflicting mental cruelty. Apart from this, Fathima (PW1) has stated that, in the matrimonial home, the petitioner taunted her by saying that he is not interested in living with her.
18.As rightly contended by Mr.Adithya Varadarajan, for fastening criminal liability under Section 4 of the DP Act, there should have been a demand for dowry in connection with the marriage. However, in this case, evidence falls short of establishing the ingredients of offence under Section 4 of the DP Act.
http://www.judis.nic.in 11 In the result, this Revision Petition is partly allowed. The conviction and sentence imposed by the trial Court and the first appellate Court on the petitioner for the offence under Section 4 of the DP Act are set aside. However, the conviction and sentence imposed on the petitioner for the offence under Section 498-A IPC stand confirmed. The trial Court is directed to issue warrant immediately for securing the revision petitioner/A1 to undergo the remaining period of sentence, if any. Before parting with the matter, this Court places on record its appreciation to Mr.Adithya Varadarajan, learned counsel for the petitioner and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) for the manner in which, they presented their case.
12.12.2018 gya http://www.judis.nic.in 12 P.N.PRAKASH, J.
gya To
1.The Additional District and Sessions Judge, Fast Track Court No.I, Chennai.
2.The Inspector of Police, W-3 All Women Police Station, Chennai-1.
3.The Public Prosecutor, High Court, Madras.
CRL.R.C.No.486 of 2011
12.12.2018 http://www.judis.nic.in