Court: Allahabad High Court
Bench: JUSTICE Ajai Lamba & Aditya Nath Mittal
Phirozi Vs. State Of U.P. & Ors. On 7 January 2016
Law Point:
Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860 — Sections 304B, 498A — Dowry Prohibition Act, 1961 — Sections 3, 4 — Quashing of FIR — Dowry Death — Cruelty — Dowry Demand — Petitioner’s mother-in-law, blind lady — Impossible to commit offence — Allegations clearly absurd, improbable, incongruous and preposterous — Apparently made because petitioner was living in same household — Proceedings qua petitioner quashed.
JUDGEMENT
1. This petition seeks issuance of a writ in the nature of certiorari for quashing F.I.R./Case Crime No. 180 of 2015, under Sections 498A and 304B, I.P.C. and Sections 3/4 of Dowry Prohibition Act, Police Station Majhila, District Hardoi.
2. As per the allegations made in the impugned F.I.R., which has been lodged at the instance of respondent No. 4, brother of the deceased, the deceased was married to Phullo about four years ago. Demand for dowry was made by Phullo, Saleem, Bhurey sons of Wasid, wife of Saleem, wife of Bhurey and wife of Wasid.
3. Petitioner is the wife of Wasid and is also known as Billa, as is admitted by the investigating officer in counter affidavit.
4. After narration of the allegations for demand of dowry, it has been alleged that on 24.7.2015, all the accused persons with common intention sprinkled kerosene oil on sister of the complainant and put fire. Thereafter, the victim Reena was taken to Shahabad hospital and thereafter to Hardoi hospital. When the complainant came to know of this, he reached Hardoi hospital. On 24.7.2015 night, Reena died.
5. Dying declaration of the deceased has been filed along with counter-affidavit of the investigating agency dated 19.12.2015. As per the dying declaration, her husband did not work and was a gambler and was addicted to drugs. Demand for Colour T.V., Cooler, Deck, Refrigerator, etc. was made by the husband, father-in-law and mother-in-law. The victim was given beatings with danda and belt. Brother in-laws (Jeth and Devar) also used to abuse the victim and give her beatings.
6. It has further been stated by the victim in her dying declaration that today at 10 O’Clock, her husband, mother-in-law and father-in-law gave beatings with danda and belt and thereafter put her to fire. When the victim stated that don’t do this, she would go to her maternal home, her husband poured kerosene oil and put her to fire. At that time, the father-in-law and mother-in-law were also present. The door was bolted from outside. On her raising alarm, villagers came and put out the fire by pouring water. The villagers suggested that the victim should be taken to the hospital. The husband, however, stated that let her die.
7. The contention of learned Counsel for the petitioner is that the petitioner is 60 years old and 100% blind. The petitioner is the mother-in-law of the deceased.
8. The fact that the petitioner is 100% blind, has been admitted after verification by the Investigating Officer. This fact has been mentioned in para 3 of the short counter affidavit dated 26.10.2015. Learned Counsel for the complainant has also not disputed this fact.
9. In counter affidavit dated 19.12.2015, it has been stated that the neighbours of the deceased have not given any clear statement in regard to torture given to the deceased by the petitioner. It has however, been stated that the petitioner could take care of her daily chores.
10. Be that as it may, learned Counsel for the petitioner has relied on judgment rendered by Hon’ble Supreme Court of India in State of Haryana and Others v. Ch. Bhajan Lal and Others, 1990 (SLT SOFT) 162=AIR 1992 SC 604, to say that the impugned criminal proceedings are liable to be quashed.
11. Learned Counsel for the complainant, who is author of the F.I.R. and brother of the deceased, namely Shri Alok Kumar Srivastava, has taken a fair stand that respondent No. 4 is not serious in prosecuting the petitioner. The petitioner be dropped from the array of accused. Respondent No. 4 would have no objection if the petitioner is not prosecuted.
12. We have considered the rival contentions.
13. The Hon’ble Supreme Court of India while taking notice of various judgments on the issue in Ch. Bhajan Lal’s case (supra), has summed up as follows in paragraph 108. The said para reads as under:
“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
14. We are of the considered opinion that it would be impossible for a blind old lady to commit the offence, as alleged. The allegations made against the petitioner, who is blind, are clearly absurd, improbable, incongruous and preposterous. They apparently have been made because the petitioner was living in the same household. The actions attributed to a blind lady are impossible to be performed. One must have vision to give beatings and cause harassment to another person. A person who is barely able to live, could not have done the acts, as suggested by the prosecution. It appears that so as to exaggerate the incident, the petitioner has been included in the array of accused, while no specific act has been attributed to the petitioner. The case is clearly covered under sub-para 5 of the para 108 of the judgment rendered in Bhajan Lal’s case (supra).
15. In view of the above and considering the statement given on behalf of respondent No. 4, we hereby allow this petition. Proceedings qua the petitioner, under Case Crime No. 180 of 2015, under Sections 498A and 304B, I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Majhila, District Hardoi, are hereby quashed.
16. Let a copy of this order be conveyed to the concerned Magistrate and Superintendent of Police, Hardoi through Senior Registrar of this Court.
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