Jammu & Kashmir High Court - Srinagar Bench
Adnan Hassan Khan And Others vs Irshad Ahmad Kamili And Others on 25 August, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
CRM(M) no.85/2020
Reserved on: 05.08.2021
Pronounced on: 25.08.2021
Adnan Hassan Khan and others
............Petitioner(s)
Through: Mr Tasaduq H. Khawja,
Advocate and Mr H.Suhail Ishtiaq,
Advocate
Versus
Irshad Ahmad Kamili and others
..........Respondent(s)
Through: Mr Naveed Gul, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Quashment of FIR no.12/2020 dated 5th March 2020 registered by police station Rainawari, Srinagar, for commission of offences under Sections 498A and 506 is sought for in petition on hand.
2. The case set up in the petition is that Farhan Hassan Khan (husband of respondent no.1, brother of petitioners 1&2 and son of petitioner no.1) has been living and working in Dubai long before his marriage with respondent no.2, which was solemnized on 16th July 2016, and after marriage, Farhan Hassan Khan and respondent no.2 travelled to Dubai and after staying for about three months, respondent no.2 returned on 6 th October 2016. Respondent no.2 is stated to have again travelled to Dubai on 20th February 2017 and returned on 10th May 2017. Out of the wedlock 2 CRM(M) no.85/2020 one child was born on 10th June 2017. Farhan Hassan Khan travelled to Srinagar. Respondent no.2 travelled to Dubai on 6 th January 2018 and returned on 5th May 2018. It is contended that Farhan Hassan Khan has deserted his wife, i.e., respondent no.2, since April 2018, when in fact at that time she was with her husband in Dubai. According to petitioners, they had no knowledge of any dispute till 3rd February 2020, when petitioner no.1 and his family were threatened by respondent no.1 and his relatives. Petitioner no.1 is stated to have immediately lodged a complaint before concerned Superintendent of Police and it is due to this fact that petitioners have been roped in and arraigned as accused in impugned FIR. It is also case of petitioner that prior to incident of February 2020, respondent no.2 was in cordial relationship with petitioners, who are her in-laws and in fact she had celebrated birthday of her son with petitioners and even she accompanied them to certain marriage functions. Petitioners also aver that besides impugned FIR, respondent no.1 has filed a complaint before the court of Chief Judicial Magistrate, Srinagar, seeking directions to the police to investigate offences punishable under Section 403 and 406 IPC. The complaint was forwarded to concerned police station for investigation.
3. I have heard learned counsel for parties and considered the matter.
4. Learned counsel for petitioners states that impugned FIR has been lodged after inordinate and unexplained delay as is alleged in impugned FIR that respondent no.2 was deserted in April 2018, which otherwise is not a fact as she returned from Dubai after visiting her husband in May 2018, still FIR was registered after, almost, 02 years of unexplained delay in March 3 CRM(M) no.85/2020 2020 that too with vague and general allegations against family of her husband. It is contended that since relation between respondent no.2 and petitioners were cordial, no complaint was filed as no harassment had taken place, and once alleged misunderstanding between her and her husband arose, she claims to have been subjected to cruelty right from her marriage, which plea is farce on the face of it. Learned counsel has also invited attention of this Court to the provisions of Section 498A of Indian Penal Code, to avow, and rightly so, that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty and such willful conduct, which is likely to cause grave injury or danger to life, limb or health, whether mental or physical, of a woman would also amount to cruelty. According to him cruelty would mean harassment of a woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would also constitute cruelty for the purpose of Section 498A IPC. It is also averred that every harassment does not amount to cruelty within the meaning of Section 498A IPC. After saying that, he correctly insists that impugned FIR does not specify a single incident of harassment on the part of petitioner to attract clause (a) or clause (b) to Explanation of Section 498A IPC, nor there has been any mental torture or physical abuse, inasmuch as FIR is silent to that extent. It is submitted that impugned FIR has been registered against petitioners solely to harass them and Farhan Hassan Khan. Since petitioner no.3 is an aged lady and petitioner no.1 is a government 4 CRM(M) no.85/2020 employee, they have been made accused, being soft targets to get demands of respondent no.2 met. He has placed reliance on State of Haryana v. Bhajan Lal, 1992 Supp.(1) SCC 335; Lalita Kumari vs. State of Uttar Pradesh, (201) 2 SCC 1.
5. There is a substance in submissions of learned counsel for petitioners that contents of FIR do not specify any incident of harassment on the part of petitioners. Impugned FIR, on its bare perusal, does not relate or connect petitioners with the allegations made mention of therein. In the backdrop of facts and circumstances of the case as also case set up by petitioners and submissions made by learned counsel, it would be appropriate to consider the settled principles of law laid down by the Supreme Court in the case of Lalita Kumari (supra), which held as follows:
"Conclusion/Directions:
111) In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.5 CRM(M) no.85/2020
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
6. From the above quoted passage of the judgement passed in Lalita Kumari's case (supra), it is explicitly clear that preliminary inquiry is to be conducted, amongst others, in the cases relating to matrimonial/ family disputes. When case in hand is looked into within the parameters of law laid down by the Supreme Court in Lalita Kumari's case, it becomes manifest that preliminary inquiry has not been conducted as was required to be conducted and petitioners have been unnecessarily arraigned as accused in impugned FIR. To extent of petitioners, impugned FIR is liable to be quashed.
7. For the reasons discussed above, impugned FIR no.12/2020 dated 5 th March 2020 registered by police station Rainawari, Srinagar, for commission of offences under Sections 498A and 506, insofar as it relates to petitioners, is quashed.
8. Disposed of in terms of above.
9. Copy be sent down.
(Vinod Chatterji Koul) Judge Srinagar 25.08.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.