Interim Order 5

Order Details: COPY OF ORDER
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SC 348/2023
STATE Vs. MOHD MONISH ORS
FIR 223/2023
PS Jafrabad
11.03.2024
Video Conferencing Link of the Court is operative and functional.
Present: Mr. Neeraj Madhup, Ld. Subst. Addl. PP for the State.
Sh. R. K. Kochar, Sh. Arun Joshi, Sh. Kunal Narang and Ms.
Deepti, Ld. Counsels for accused persons.
Accused Mohd. Monish produced from JC.
All other seven accused in person.
ORDER ON CHARGE
1. Vide this order, the Court shall decide on the basis of record
of the case and the documents submitted therewith, whether there are
sufficient grounds for proceedings against the accused persons or not.
Court shall also form an opinion on the basis of such material whether
there are grounds for presuming that accused have committed an offence.
In this regard, Court shall be guided by Sec. 227 & 228 Cr.P.C.
2. The accused persons namely Mohd. Monish, Qamar Jahan,
Nafeesh Ahmad, Mohd. Danish, Shabista, Mohd. Mohsin @ Mohsin,
Mohd. Irshad and Mahzabeen Khatoon have been charge-sheeted for
commission of offences u/s 498-A/304-B/34 IPC.
3. It is the case of prosecution that accused Mohd. Monish,
being husband of deceased Nahid Praveen in furtherance of his common
intention with co-accused Nafees Ahmed (father-in-law), Qamar Jahan
(mother-in-law), Mohd. Danish (brother-in-law/jeth), Shabista (sister-in-
law/jethani), Mahzabeen (sister-in-law/Nanad), Mohd. Irshad (brother-
in-law/Nandoi) and Mohd Mohsin (brother-in-law/devar) subjected the
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deceased to cruelty for unlawful demand of dowry, since the date of her
marriage i.e. 25.01.2023 to 16.05.2023 at her matrimonial house i.e. H.
No. 10B/15, Shiv Mandir Wali Gali, Gali No. 5, Ambedkar Basti,
Maujpur, Delhi. It is further the case that on 16.05.2023, at an unkown
time before 09:30 pm, at her aforesaid matrimonial house, Nahid Praveen
died and her death occurred otherwise than under normal circumstances
within seven years of her marriage with accused Mohd. Monish and soon
before her death, she was subjected to cruelty and harassment by accused
persons in furtherance of their common intention in connection with
demand of dowry.
4. Statement of Shabana W/o Tasleem i.e. sister-in-law/bhabhi
of deceased was recorded by concerned Executive Magistrate on
17.05.2023 wherein she alleged that her sister-in-law/Nanad was being
harassed by her in-laws. She alleged that all the accused persons in
furtherance of their common intention used to pressurize the deceased
and made demand of Rs.5,00,000/- and a four wheeler from her. Accused
Mohd. Monish used to quarrel with her sister-in-law/Nanad (deceased)
and also extended beatings to her at many occasions. She further alleged
that Nahid Praveen (deceased) had informed her telephonically that
accused Mohd. Monish used to threat her that if his demands were not
fulfilled, he will leave/divorce her. She also alleged that one day accused
Mohd. Monish had made call to her and told that he will kill Nahid
Praveen and will also kill himself, if his demands were not fulfilled.
Complainant Shabana alleged physical as well as emotional
cruelty to Nahid Praveen at the hands of all accused persons. It is the
allegation that accused Mohd. Monish used to repeatedly ask her sister-
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in-law/Nanad to bring Rs.5,00,000/- and a four wheeler which led to
frequent fights between them.
FIR was registered on the basis of said statement against all
the accused persons. During investigation, supplementary statement of
sister-in-law/bhabhi of deceased Shabana was recorded. She alleged in
her statement under Section 161 Cr.P.C. that after marriage, accused
Mohd. Monish took Nahid Praveen to Sherkot, Bijnor, UP and they both
started living with accused Mahzabeen (sister-in-law/Nanad) and Mohd.
Irshad (brother-in-law/Nandoi) and during said stay, both accused
Mahzabeen and Mohd. Irshad used to instigate/provoke Mohd. Monish to
demand Rs.5 lacs and a four wheeler as a dowry from Nahid Praveen. It
is further alleged that after some time, when deceased started residing at
her matrimonial house in Delhi, all the accused persons (except accused
Mahzabeen and Mohd. Irshad) used to taunt Nahid and mentally harass
her. It is the allegation that Mohd. Monish with other accused persons
used to extend beatings to Nahid Praveen on the point of non-fulfillment
of demand of dowry.
5. The matter was investigated and chargesheet was filed
against all the accused persons. Accused Mohd. Monish was arrested and
remanded to judicial custody. Accused Nafees Ahmad was admitted to
anticipitory bail by Hon’ble Delhi High Court and acused Mohd. Mohsin,
Shabista, Danish and Qamar Jahan were granted anticipitory bail by this
Court. All the seven accused persons except accused Mohd. Monish were
admitted to regular bail vide the order dt. 09.11.2023 of Ld. MM.
6. The present file was committed to this Court on 21.11.2023
and was fixed for arguments on Charge.
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7. Arguments advanced by learned defence counsel and
learned Addl. PP for State heard.
8. Learned Addl. PP for State reiterated the case of prosecution
as stated in the chargesheet. He argued that there are specific allegations
of demand of dowry against all the accused persons since the date of
marriage of deceased Nahid Praveen and accused Mohd. Monish. It is
argued that deceased was harassed throughout her stay in the matrimonial
home where she used to be abused, beaten and harassed in different
manners both emotionally and physically. It is the argument that all the
accused persons had a quarrel with her on many occassions. It is stated
that deceased was subjected to cruelty immediately prior to her death and
consequently, she expired within seven years of her marriage. It is
submitted that on the basis of available record, an offence u/s 498-A/304-
B/34 IPC is made out against all the accused persons.
9. Per contra, it is the argument of learned defence counsel
that complainant Shabana in her statement to the concerned Executive
Magistrate/Tehsildar, made general and vague allegations against all the
accused persons including the husband. It is the argument that allegations
against all the accused persons have been levelled by the complainant
and brother of deceased merely out of their anguish pursuant to the death
of Nahid Praveen. It is submitted that there is no specific date, time or
year when any demand of dowry was made by any of the accused
persons. It is also stated that allegations of quarrel and threat to kill the
deceased are not corroborated even at the prima facie standard on the
basis of statement of witnesses and as such, all the accused deserve to be
discharged.
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10. Submissions heard. Record perused.
11. This Court has carefuly perused the statement dated
17.05.2023 of Shabana, sister-in-law/Bhabhi of deceased, which is
categorical in describing the conduct of accused Mohd. Monish towards
deceased Nahid Praveen since the date of their marriage. There are
allegations of quarrel, beating, abuse, demand of dowry in the form of
Rs.5 lacs in cash and a four wheeler, as well as mental cruelty against
accused Mohd. Monish. She has stated that deceased used to disclose the
conduct of her husband to her over phone as also when she (deceased)
used to meet her. She has reiterated similar allegations even in her
supplementary statement with slight additions here and there.
The factum of marriage between accused Mohd. Monish
and Nahid Praveen (deceased) is not disputed. It is also not disputed that
deceased was staying in her matrimonial home at the time of and
immediately before her death. The complainant has also handed over one
audio recording between her and accused Mohd. Monish wherein
accused allegedly threatened to leave the deceased. It has also come on
record that accused husband was staying at Sherkot, Bijnaur, UP when
deceased commited suicide and there was an apparrent dispute between
the spouses for staying together at a common place.
Considering the allegations of repeated harassment meted
out to deceased Nahid Praveen on account of demand of dowry and also
in the light of the allegations of repeated quarrels with deceased which
continued till her death on 16.05.2023, there are sufficient grounds to
‘presume’ commission of offence u/s 498-A/304-B IPC against accused
Mohd. Monish. Considering the circumstances in which deceased
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committed suicide, the probablity of accused/husband Mohd. Monish
having abetted such suicide by his active or direct acts can not be ruled
out. As such, this Court deems it appropriate to charge accused Mohd.
Monish alternatively under Section 306 IPC for abetting suicide of
deceased Nahid Praveen.
12. While considering the allegations of complainant Shabana,
this Court also perused the statements of other prosecution witnesses
including one Abdul Kadir (Imam), Tasleem Ahmed (brother of
deceased), Sarfaraz Ahmed as also the supplementary statment of
complainant herself.
In order to appreciate the allegations in the various
statements, this Court is guided by the following observations of Hon’ble
Supreme Court in case titled as Kahkashan Kausar @ Sonam Vs. State of
Bihar, 2022 LiveLaw (SC) 141 which are as under:-
11. Having perused the relevant facts and contentions made
by the Appellants and Respondents, in our considered
opinion, the foremost issue which requires determination in
the instant case is whether allegations made against the in-
laws Appellants are in the nature of general omnibus
allegations and therefore liable to be quashed?
…
…
18. 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.
19. Coming to the facts of this case, upon a perusal of the
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contents of the FIR dated 01.04.19, it is revealed that general
allegations are levelled against the Appellants.
The complainant alleged that all accused harassed her
mentally and threatened her of terminating her
pregnancy. Furthermore, no specific and distinct
allegations have been made against either of the
Appellants herein, i.e., none of the Appellants have been
attributed any specific role in furtherance of the general
allegations made against them. This simply leads to a
situation wherein one fails to ascertain the role played
by each accused in furtherance of the offence. The
allegations are therefore general and omnibus and can
at best be said to have been made out on account of
small skirmishes. Insofar as husband is concerned, since
he has not appealed against the order of the High court,
we have not examined the veracity of allegations made
against him. However, as far as the Appellants are
concerned, the allegations made against them being
general and omnibus, do not warrant prosecution.
13. Further, while discussing the standard of ‘opinion’ required at
the stage of framing of charge, or discharge, it was observed by Hon’ble
Supreme Court in case titled as P. Vijayan Vs. State o f Kerala,
AIR 2010 SC 663 as under:
“(10) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the Trial Judge will be
empowered to discharge the accused and at this stage he is not to see
whether the trial will end in conviction or acquittal. Further, the
words “not sufficient ground for proceeding against the accused”
clearly show that the Judge is not a mere Post Office to frame the
charge at the behest of the prosecution, but has to exercise his judicial
mind to the facts of the case in order to determine whether a case for
trial has been made out by the prosecution. In assessing this fact, it is
not necessary for the Court to enter into the pros and cons of the
matter or into a weighing the balancing of evidence and probabilities
which is really the function of the court, after the trial starts. At the
stage of Section 227, the Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for proceeding
against the accused. In other words, the sufficiency of ground would
take within its fold the nature of the evidence recorded by the police or
the documents produced before the Court which exfacie disclose that
there are circumstances against the accused so as to frame a
charge against him.”
14. A careful consideration and studied perusal of the entire
material available on record of the present case would reveal that
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complainant has made common and general allegations against all the
members of the family of accused/husband Mohd. Monish. The
allegations of demand of dowry of Rs. 5 lacs and a car have also been
attributed in general to all the family members. No specific conduct or
role has been assigned to these accused persons by the complainant in
her complaint as well supplementary statement u/s 161 Cr.P.C.
The complaint is full of allegations which start with the term
‘they all...’. There is no specific instance of beating or harassment by any
of the family member. The date of demand of dowry or the details of the
four wheeler has been specified either in the complaint or supplementary
statement. It is observed that while Nanad Mahzabeen Khatoon and her
husband Mohd Irshad used to stay at Bijnaur UP, the other family
members of accused husband used to stay on different floors of the same
building at Delhi. There is no other witness to prima facie corroborate the
general allegations made by complainant.
15. In the opinion of this Court, there is not even a single
specific instance of demand of dowry by any of these seven accused
persons. The telephonic call referred to in the allegations by Ld. Addl.
PP for the State does not prima facie relate to any of the relatives of
accused/husband Mohd. Monish. In the opinion of this Court, the
allegations against accused Qamar Jahan, Nafeesh Ahmad, Mohd.
Danish, Shabista, Mohd. Mohsin @ Mohsin, Mohd. Irshad and
Mahzabeen Khatoon are highly general, vague and omnibus and do not
constitute the commission of offence u/s 498-A/304B IPC.
16. In the light of entire discussion in the preceding paragraphs,
it is observed that there is no sufficient ground to proceed against
accused Qamar Jahan, Nafeesh Ahmad, Mohd. Danish, Shabista, Mohd.
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Mohsin @ Mohsin, Mohd. Irshad and Mahzabeen Khatoon as there is no
ground to presume commission of alleged offences by the said accused
persons. As such, accused namely they are discharged from the present
case. Bail Bond cancelled. Surety discharged.
17. A case to proceed against and presume commission of
offence u/s 498-A/304B IPC and alternatively under Section 306 IPC is
made out against accused Mohd. Monish. He be separately charged for
the same.
18. Charge under Section 498A/304B IPC and alternatively
under Section 306 IPC is framed against accused Mohd. Monish to
which he pleaded not guilty and claimed trail.
19. Issue summons to witnesses mentioned at Sl. No. 1, 2, 7 & 8
with relevant records for next date of hearing. Put up for PE on
31.05.2024 and 09.07.2024.
(ARVIND BANSAL)
ASJ-05, Shahdara, Karkardooma,
Delhi-11.03.2024
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