KAHKASHAN KAUSAR @ SONAM & ORS. versus STATE OF BIHAR & ORS.

[2022] 1 S.C.R.

AKAHKASHAN KAUSAR @ SONAM & ORS.

STATE OF BIHAR & ORS.

(Criminal Appeal No. 195 of 2022)

B08 FEBRUARY, 2022

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]

Penal Code, 1860: s.498-A – Purpose of enactment of s.498-A and misuse of the said section – Discussed.

CPenal Code, 1860: s.498-A – Complaint against in-laws –Complainant alleged that ‘all accused harassed her mentally andthreatened her of terminating her pregnancy’ – No specific anddistinct allegations made against either of the accused i.e., none ofthe appellants were attributed any specific role in furtherance ofthe general allegations made against them – Allegations were,Dtherefore, general and omnibus and can at best be said to havebeen made out on account of small skirmishes – Therefore, it wouldbe unjust if the appellants are forced to go through the tribulationsof trial, i.e., general and omnibus allegations cannot manifest ina situation where the relatives of the complainant’s husband areEforced to undergo trial.

Allowing the appeal, the Court

HELD: Incorporation of section 498A of IPC was aimed atpreventing cruelty committed upon woman by her husband andher in-laws, by facilitating rapid state intervention. However, inFrecent times, matrimonial litigation in the country has alsoincreased significantly and there is greater disaffection andfriction surrounding the institution of marriage, now, more thanever. This has resulted in an increased tendency to employprovisions such as 498A IPC as instruments to settle personalGscores against the husband and his relatives. This court has atnumerous instances expressed concern over the misuse of section498A IPC and the increased tendency of implicating relatives ofthe husband in matrimonial disputes, without analysing the longterm ramifications of trial on the complainant as well as the

accused. False implication by way of general omnibus allegationsmade in the course of matrimonial dispute, if left unchecked wouldresult in misuse of the process of law. Therefore, this court byway of its judgments has warned the courts from proceedingagainst the relatives and in-laws of the husband when no primafacie case is made out against them. In the facts of this case,upon perusal of the contents of the FIR, it is revealed thatgeneral allegations are levelled against the Appellants. Thecomplainant alleged that ‘all accused harassed her mentally andthreatened her of terminating her pregnancy’. Furthermore, nospecific and distinct allegations have been made against either ofthe appellants. This simply leads to situation wherein one failsto ascertain the role played by each accused in furtherance of theoffence. [Paras 12, 18, 19][563-G-H; 567-E-H; 568-A-B]

Rajesh Sharma and Ors. v. State of U.P. & Anr. (2018)10 SCC 472; Arnesh Kumar v. State of Bihar and Anr.(2014) 8 SCC 273 : [2014] 8 SCR 128; Preeti Gupta& Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667: [2010] 9 SCR 1168; Geeta Mehrotra & Anr. v. Stateof UP & Anr. (2012) 10 SCC 741: [2012] 9 SCR 641;K. Subba Rao v. The State of Telangana (2018) 14 SCC452 – relied on.

Lalita Kumari v. Government of U.P. & Ors. (2014) 2SCC1 : [2013] 14 SCR 713; Social Action Forum forManav Adhikar & Anr. v. Union of India, Ministry ofLaw And Justice & Ors. (2018) 10 SCC 443 : [2018]12 SCR 19; Rajesh Bajaj v. State of NCT of Delhi &Ors. (1999) 3 SCC 259 : [1993] 3 SCR 930 – referredto.

Case Law Reference

[2022] 1 S.C.R.

BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.195 of 2022.

From the Judgment and Order dated 13.11.2019 of the High Courtof Judicature at Patna in Criminal Writ Jurisdiction Case No.1492 of2019.

CSmarhar Singh, Ms. Shweta Kumari, Advs. for the Appellants.Samir Ali Khan, Abhay Kumar, Sriharsh Nahush Bundela, KumarMilind, Shagun Ruhil, Vishal Nautiyal, Advs. for the Respondents.

The Judgment of the Court was delivered by

KRISHNA MURARI, J.D

1. Leave granted.

2. This appeal is directed against the judgment and order dated13.11.2019 passed by the High Court of Patna in Criminal Writ PetitionNo. 1492 of 2019, filed by the Appellants under Section 482 of the Codeof Criminal Procedure (hereinafter referred to as ‘CrPC’) challengingEthe FIR No. 248/2019 dated 01.04.2019 implicating the Appellants foroffences under Sections 341, 323, 379, 354, 498A read with Section 34of the Indian Penal Code (hereinafter referred to as ‘IPC’). The HighCourt vide order impugned herein dismissed the same.

Factual MatrixF

3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar@ Soni, was married to Md. Ikram on 18.09.17. The appellants hereinare the in-laws of Respondent No. 5. On 11.12.17, the said Respondentinitially instituted criminal complaint against her husband and theappellants before the Court of Chief Judicial Magistrate, Purnea allegingGdemand for dowry and harassment. Thereafter, when the file was putup before the Sub Divisional Judicial Magistrate Court, Purnea, for passingorder at the stage of issuance of summon, the Ld. Magistrate concludedthat upon perusal of material evidence no prima-facie case was madeagainst the in-laws and that the allegations levelled against them werenot specific in nature. The said court, however, took cognizance for theH

offence under section 498A, 323 IPC against the husband Md. Ikram,and issued summons. This dispute was eventually resolved andRespondent No. 5 herein came back to the matrimonial home.

4. Subsequently, on 01.04.19, Respondent No. 5 herein, gaveanother 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 allthe accused were pressurizing the Respondent wife herein to purchasea car as dowry, and threatened to forcibly terminate her pregnancy ifthe demands were not met.

5. Aggrieved, the Husband and appellant herein filed criminalwrit petition before the Patna High Court, for quashing of the said FIRdated 01.04.19, which was dismissed vide impugned judgment. The HighCourt observed that the averments made in the FIR prima-facie disclosedcommission of an offence and therefore the matter was required to beinvestigated 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 therebyapproached 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 PoliceOfficer was duty bound to conduct preliminary inquiry before registeringthe FIR as this instant case falls within the categories of cases on whicha preliminary enquiry may be made, as mandated by this court in LalitaKumari Vs. Government of U.P. & Ors.[1] .

7. It is also submitted that previously in the year 2017, theRespondent wife had instituted criminal complaint on similar allegations,whereby the Ld. Judicial Magistrate after considering the evidence issuedsummons only against the husband, and found that the allegations madeagainst the appellants herein were omnibus in nature. Further, it issubmitted that the FIR in question has been made with revengefulintent, merely to harass the Appellant in-laws herein, and should be dealtwith accordingly. Reliance is placed on Social Action Forum for ManavAdhikar & Anr. Vs. Union of India, Ministry of Law And Justice &Ors.[2], wherein it was observed:-

1 (2014) 2 SCC 1

2 (2018) 10 SCC 443

“4. Regarding the constitutionality of Section 498-A IPC, inSushil Kumar Sharma v. Union of India and others , it washeld by the Supreme Court:-

“Provision of S. 498A of Penal Code is not unconstitutionaland ultra vires. Mere possibility of abuse of provision ofBlaw does not per se invalidate legislation. Hence plea thatS. 498A has no legal or constitutional foundation is nottenable. The object of the provisions is prevention of the dowrymenace. But many instances have come to light where thecomplaints are not bona fide and have been filed with obliqueCmotive. In such cases acquittal of the accused does not in allcases wipe out the ignominy suffered during and prior to trial.Sometimes adverse media coverage adds to the misery. Thequestion, therefore, is what remedial measures can be takento prevent abuse of the well-intentioned provision. Merelybecause the provision is constitutional and intra vires, doesDnot give licence to unscrupulous persons to wreck personalvendetta or unleash harassment. It may, therefore, becomenecessary for the legislature to find out ways how the makersof frivolous complaints or allegations can be appropriatelydealt with. Till then the Courts have to take care of thesituation 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 thatthe present FIR pertains to offences committed in the year 2019, afterassurance was given by the husband Md. Ikram before the Ld. PrincipalFJudge Purnea, to not harass the Respondent wife for dowry, and treather properly. However, the husband and appellants, despite the assurances,have continued their demand for dowry and threatened with forcefullyterminating the Respondent wife’s pregnancy. These acts constitute afresh cause of action and therefore the FIR in question herein datedG01.04.19, is distinct and independent, and cannot be termed as repetitionof an earlier FIR dated 11.12.17. Moreover, an investigation was carriedout pursuant to the FIR and the case has been found true against allaccused persons, therefore Lalita Kumari (Supra) will not apply in thepresent case.

–Contentions made by Respondent No 5 Complainant Wife

9. Respondent No. 5 contends that of the total seven accused, theFIR in question was challenged by only five accused including her husband.It is argued that the impugned order is evidently accepted by the accusedhusband Md. Ikram @Sikandar as he has not challenged the impugnedHigh Court judgment. Further, as far as involvement of the four accusedAppellant in-laws is concerned, it is not only reflected from the avermentsmade in the FIR, but also corroborated from the oral and documentaryevidence collected by the investigating officer during investigation,culminating into filing of charge-sheet against all seven accused includingthe four Appellants herein. The allegations thus made in the FIR aresufficient to make out prima facie case, and non-mentioning of pendencyof Complaint case of year 2017, at the time of filing the complaint 01.04.19is not fatal for the case of the prosecution.

10. It is further submitted that the allegations made in the FIR areserious in nature and the Respondent wife has been repeatedly torturedphysically 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 theTrial Court. It is further contended that this court has also taken aconsistent view with regard to exercise of power under S. 482 Cr.P.C.,in Rajesh Bajaj Vs. State of NCT of Delhi & Ors.[3], wherein it hasbeen clearly held that even if prima facie case is made out disclosingthe 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 thisHon’ble Court.

Issue Involved

11. Having perused the relevant facts and contentions made bythe Appellants and Respondents, in our considered opinion, the foremostissue which requires determination in the instant case is whetherallegations made against the in-laws Appellants are in the nature of generalomnibus allegations and therefore liable to be quashed?

12. Before we delve into greater detail on the nature and contentof allegations made, it becomes pertinent to mention that incorporationof section 498A of IPC was aimed at preventing cruelty committed upon

Aa woman by her husband and her in-laws, by facilitating rapid stateintervention. However, it is equally true, that in recent times, matrimoniallitigation in the country has also increased significantly and there is agreater disaffection and friction surrounding the institution of marriage,now, more than ever. This has resulted in an increased tendency to employprovisions such as 498A IPC as instruments to settle personal scoresBagainst 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 theClaudable object of punishing cruelty at the hands of husbandor his relatives against wife particularly when such crueltyhad potential to result in suicide or murder of woman asmentioned in the statement of Objects and Reasons of the Act46 of 1983. The expression ‘cruelty’ in Section 498A coversconduct which may drive the woman to commit suicide or causeDgrave injury (mental or physical) or danger to life orharassment with view to coerce her to meet unlawfuldemand. It is matter of serious concern that large numberof cases continue to be filed under already referred to someof the statistics from the Crime Records Bureau. This CourtEhad earlier noticed the fact that most of such complaints arefiled in the heat of the moment over trivial issues. Many ofsuch complaints are not bona fide. At the time of filing of thecomplaint, implications and consequences are not visualized.At times such complaints lead to uncalled for harassment notonly to the accused but also to the complainant. Uncalled forFarrest may ruin the chances of settlement.”

14. Previously, in the landmark judgment of this court in ArneshKumar Vs. State of Bihar and Anr.[5], it was also observed:-

“4. There is phenomenal increase in matrimonial disputesin recent years. The institution of marriage is greatly reveredGin this country. Section 498-A IPC was introduced withavowed object to combat the menace of harassment to womanat the hands of her husband and his relatives. The factthat Section 498-A IPC is cognizable and non-bailable

4 (2018) 10 SCC 472H5 (2014) 8 SCC 273

offence has lent it dubious place of pride amongst theprovisions that are used as weapons rather than shield bydisgruntled wives. The simplest way to harass is to get thehusband and his relatives arrested under this provision. In aquite number of cases, bed-ridden grand-fathers andgrand-mothers of the husbands, their sisters living abroadfor decades are arrested.”

15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand &Anr.[6], it has also been observed:-

“32. It is matter of common experience that most of thesecomplaints under section 498A IPC are filed in the heat ofthe moment over trivial issues without proper deliberations.We come across large number of such complaints which arenot even bona fide and are filed with oblique motive. At thesame time, rapid increase in the number of genuine cases ofdowry harassment are also matter of serious concern.

33. The learned members of the Bar have enormous socialresponsibility and obligation to ensure that the social fiber offamily life is not ruined or demolished. They must ensure thatexaggerated versions of small incidents should not be reflectedin the criminal complaints. Majority of the complaints arefiled either on their advice or with their concurrence. Thelearned members of the Bar who belong to noble professionmust maintain its noble traditions and should treat everycomplaint under section 498A as basic human problem andmust make serious endeavour to help the parties in arrivingat an amicable resolution of that human problem. They mustdischarge their duties to the best of their abilities to ensurethat social fiber, peace and tranquility of the societyremains intact. The members of the Bar should also ensurethat one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint theimplications and consequences are not properly visualizedby the complainant that such complaint can lead toinsurmountable harassment, agony and pain to thecomplainant, accused and his close relations.

A35. The ultimate object of justice is to find out the truth andpunish the guilty and protect the innocent. To find out thetruth is herculean task in majority of these complaints. Thetendency of implicating husband and all his immediate relationsis also not uncommon. At times, even after the conclusion ofcriminal trial, it is difficult to ascertain the real truth. TheBcourts have to be extremely careful and cautious in dealingwith these complaints and must take pragmatic realities intoconsideration while dealing with matrimonial cases. Theallegations of harassment of husband’s close relations whohad been living in different cities and never visited or rarelyCvisited the place where the complainant resided would havean entirely different complexion. The allegations of thecomplaint are required to be scrutinized with great care andcircumspection.

36. Experience reveals that long and protracted criminal trialsDlead to rancour, acrimony and bitterness in the relationshipamongst the parties. It is also matter of common knowledgethat in cases filed by the complainant if the husband or thehusband’s relations had to remain in jail even for few days,it would ruin the chances of amicable settlement altogether.The process of suffering is extremely long and painful.”

E16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.[7], it wasobserved:-

“21. It would be relevant at this stage to take note of an aptobservation of this Court recorded in the matter of G.V. RaoFvs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 whereinalso in matrimonial dispute, this Court had held that theHigh Court should have quashed the complaint arising outof matrimonial dispute wherein all family members had beenroped into the matrimonial litigation which was quashed andset aside. Their Lordships observed therein with which weGentirely agree that:

“there has been an outburst of matrimonial dispute in recenttimes. Marriage is sacred ceremony, main purpose of whichis to enable the young couple to settle down in life and live

H7 (2012) 10 SCC 741

peacefully. But little matrimonial skirmishes suddenly eruptwhich often assume serious proportions resulting in heinouscrimes in which elders of the family are also involved with theresult that those who could have counselled and broughtabout rapprochement are rendered helpless on their beingarrayed as accused in the criminal case. There are manyreasons which need not be mentioned here for not encouragingmatrimonial litigation so that the parties may ponder overtheir defaults and terminate the disputes amicably by mutualagreement instead of fighting it out in court of law where ittakes years and years to conclude and in that process theparties lose their “young” days in chasing their cases indifferent courts.” The view taken by the judges in this matterwas that the courts would not encourage such disputes.”

17. Recently, in K. Subba Rao v. The State of Telangana[8], itwas also observed that:-

“6. The Courts should be careful in proceeding against thedistant relatives in crimes pertaining to matrimonial disputesand dowry deaths. The relatives of the husband should notbe roped in on the basis of omnibus allegations unless specificinstances of their involvement in the crime are made out.”

18. The above-mentioned decisions clearly demonstrate that thiscourt has at numerous instances expressed concern over the misuse ofsection 498A IPC and the increased tendency of implicating relatives ofthe husband in matrimonial disputes, without analysing the long termramifications of trial on the complainant as well as the accused. It isfurther manifest from the said judgments that false implication by wayof 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 proceedingagainst the relatives and in-laws of the husband when no prima faciecase is made out against them.

19. Coming to the facts of this case, upon perusal of the contentsof the FIR dated 01.04.19, it is revealed that general allegations arelevelled against the Appellants. The complainant alleged that ‘all accusedharassed her mentally and threatened her of terminating her pregnancy’.

8 (2018) 14 SCC 452

AFurthermore, no specific and distinct allegations have been made againsteither of the Appellants herein, i.e., none of the Appellants have beenattributed any specific role in furtherance of the general allegations madeagainst them. This simply leads to situation wherein one fails to ascertainthe role played by each accused in furtherance of the offence. Theallegations are therefore general and omnibus and can at best be said toBhave been made out on account of small skirmishes. Insofar as husbandis concerned, since he has not appealed against the order of the Highcourt, we have not examined the veracity of allegations made againsthim. However, as far as the Appellants are concerned, the allegationsmade against them being general and omnibus, do not warrantCprosecution.

20. Furthermore, regarding similar allegations of harassment anddemand for car as dowry made in previous FIR. Respondent No. 1i.e., the State of Bihar, contends that the present FIR pertained to offencescommitted in the year 2019, after assurance was given by the husbandDMd. Ikram before the Ld. Principal Judge Purnea, to not harass theRespondent wife herein for dowry, and treat her properly. However,despite the assurances, all accused continued their demands andharassment. It is thereby contended that the acts constitute fresh causeof action and therefore the FIR in question herein dated 01.04.19, isdistinct and independent, and cannot be termed as repetition of anEearlier FIR dated 11.12.17.

21. Here it must be borne in mind that although the two FIRs mayconstitute 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 ofFclear allegations against the in-laws Appellants would simply result in anabuse of the process of law.

22. Therefore, upon consideration of the relevant circumstancesand 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 tribulationsGof trial, i.e., general and omnibus allegations cannot manifest in asituation where the relatives of the complainant’s husband are forced toundergo trial. It has been highlighted by this court in varied instances,that criminal trial leading to an eventual acquittal also inflicts severescars upon the accused, and such an exercise must therefore beHdiscouraged.

23. In view of the above facts and discussions, the impugnedorder dated 13.11.2019 passed by the High Court of Patna is set aside.The impugned F.I.R. No. 248 of 2019 against the Appellants underSections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed.

24. As result, appeal stands allowed.

Devika Gujral

Appeal allowed.