SAMIRA KHANUMversusMD. AFSAR TOWHEED AND ANR

                         [2009] 4 S C.R. 112


A                        SAMIRA KHANUM
                                 v                                   •
                MD. AFSAR TOWHEED AND ANR
                 Criminal Appeal No. 450 of 2009
                         MARCH 6. 2009
B
     [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
                           JJ.]
        Code of Criminal Procedure. 1973 - s.482 - Complaint
  u/ss. 498-A and 406 IPC and ulss. 3 and 4 of Dowry Prohibition         ....
C Act - Application for quashing the proceedings - Allowed by
  High Court- On appeal, held: High Court order passed without
  indicating any basis or reason for exercising jurisdiction under
  the provision - Matter remitted to High Court for consideration
  afresh - Penal Code, 1860 - ss. 498-A and 406 - Dowry
D Prohibition Act. 1961 - ss. 3 and 4.
      Appellant filed a complaint case u/ss. 498-A and 406
  IPC and u/ss. 3 and 4 of Dowry Prohibition Act, 1961.
  Directions were given to summon the respondents.
E Respondent No.1 filed application u/s 482 Cr.P.C. and the
  same was allowed. Hence the present appeal.
        Allowing the appeal and remitting the matter to High
    Court, the Court
       HELD : The High Court has not indicated any basis
F or reason for exercising jurisdiction u/s. 482 Cr.P.C. The
  application was disposed of in a casual manner.
  Therefore, the order of the High Court is clearly
  indefensible and is, accordingly, set aside.
G        State of Haryana and Ors. v. Bhajanlal and Ors. 1992
    Supp (1) SCC 335 - referred to.
                         Case Law Reference
         1992 Supp (1) SCC 335 Referred to. Para 4
H                            112
  SAMIRA KHANUM V. MD. AFSAR TOWHEED AND ANR 113


     CRIMINALAPPELLATE JURISDICTION: Criminal Appeal              A
No. 450 of 2009
     From the Judgement and Order dated 28.08.2006 of the
High Court of Judicature at Patna in Criminal Misc. Application
No. 32326 of 2005.
                                                                  B
     Ejaz Maqbool, for the Appellant.
    Altaf Ahmad, T.A. Khan, Gaurav Agrawal, Gopal Singh,
Manish Kumar, for the Respondents.
     The Judgement of the Court was delivered by                  c
     DR. ARIJIT PASAYAT, J.

     1. Leave granted.
      2. Challenge in this appeal is to the order passed by the
learned Single Judge of the Patna High Court allowing the D
application filed under Section 482 of the Code of Criminal
Procedure, 1973 (in short the 'Code'). Prayer was made by the
respondent no.1 to quash the order dated 30.11.2004 passed
by learned Sub-Divisional Judicial Magistrate, Patna, in
Complaint Case No.2523(C)/2004, whereby direction was given E
to issue summons against the respondent no.1 and others for
facing trial for alleged commission of offences punishable under
Sections 498-A and 406 of the Indian Penal Code, 1860 (in
short the 'IPC') and Sections 3 and 4 of the Dowry Prohibition
Act, 1961 (in short 'D.P. Act').                                 F
     3. The factual position in a nutshell is as follows :
     The case of the complainant (O.P. No.2) is that she was
married to the respondent no.1 on 24.10.1999 at Patna
according to the Muslim Law. The other two accused are his G
father and mother. After marriage, on the same day she went to
her matrimonial house. At the time of marriage several articles,
ornaments, cash etc. amounting to Rs.5 lacs were given as gift.
The respondent no.1 and his parents were not happy with the
same and wanted more dowry. The parents of the respondent H
    114       SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A   no.1, taunted her for insufficient dowry. After 15 days of the
    marriage, the respondent no.1 went to America where he was
    doing a job of Software Engineer and in the meantime the
    complainant on 9.11.1999 returned to her parental house as
    the parents of the respondent no.1 compelled her to leave the
B   matrimonial house by their misbehaviour and cruel attitude.
    Respondent no.1 thereafter sent a visa to the complainant and
    the complainant went to America on 18.4.2000. There she found
    her husband having illicit relationship with an American girl
    named "Dolly". She seriously objected to this relationship. The
C   respondent no.1 told her that in America it was status symbol to
    have a girl friend and he demoralized her saying that she belongs
    to an orthodox and backward family. The complainant anyhow
    stayed there for about a year and returned to India with the
    respondent no.1 on 19.8.2001. During their stay at Patna her
D   parents tried to convince the husband to refrain from such
    relationship with another for cordial conjugal life. He promised
    to mend himself. Both of them again went to U.S.A. after staying
    for five weeks in Patna. During this stay all the accused persons
    asked the complainant to bring Rs.1.2 lacs from her parents for
E   purchase of a flat in the name of complainant herself. The father
    of the complainant promised on 19.9.2001 to give Rs.7 lacs
    provided the flat was purchased in the name of the complainant.
    Subsequently, her father out of love and affection gave Rs. 7 lacs
    to the parents of the father of the respondent no.1 in various
F   installments. Despite this, all the accused were adamant for
    further Rs.5 lacs and for non-fulfillment of that amount the
    accused persons brutally assaulted her both mentally and
    physically.
        It was further alleged that after going to America the
G respondent no.1 despite his promise tried to re-establish his
  relationship with the above girl, and on protest by the wife
  assaulted her. He developed the habit of taking wine and
  wasting time in clubs and on objection she was subjected to
  cruelty. As a result of multi-dimensional tension she suffered
H
        SAMIRA KHANUM V. MD. AFSAR TOWHEED AND ANR 115
                   [DR. ARIJIT PASAYAT, J.]

       miscarriage on 13.5.2003. She.was also not allowed to meet A
     . any of her relatives residing in U.S.A.
             The respondent no.1 then on request of the complainant
       brought her to India. On 30.8.2003, the respondent no.1 after
       reaching India went to Hyderabad and asked the complainant
       to go to her parental house at Patna. During this stay he did not 8
     . come to Patna. So the complainant herself went to Hyderbad
       and in spite of atrocities on her, she along with the respondent
       no.1on14.9.2003 returned to America where he continued his
       torture and on 22.3.2004 she was forcibly sent to India and since
       then she was living in Patna. It is also alleged that when she C
       returned to India the respondent no.1 sent E-mail to her not to
       return to America without his permission and also directed her
       to cancel the return ticket. The complainant on 2.7.2004 through
       E-mail requested the respondent no.1 to reconsider his decision
       but to no effect and suddenly replied that unless his parents' D
       desire was fulfilled no question of sympathy arises and on
.;
       10.9.2004 asked her father to make payment of Rs.5 lacs to
       his parents by the next month positively and on that date .her
       father talked to the father and mother of the respondent no.1
       and showed his inability.                                         E
            It was also alleged in the complaint petition that during his
      stay in America, the respondent no.1 had pressurized her on
      several occasions to collect at least 50,000 American do.liars
      from Phuphi and Phupha residing there and on refusal by her ·
      the respondent no.1 himself told her Phupha on phone to send F
      50,000 dollars, otherwise the complainant would be in trouble.
            After filing of the complaint, the complainant was examined
      on S.A. She also examined witnesses in enquiry under Section
      202 of the Code. Learned S.D.J.M. after perusing the complaint G
      petition, the statement of the complainant on S.A. and the
      statement of the witnesses examined by the complainant,
      passed the order which was impugned before the High Coy.rt.
           Before the High Court it was contended on behalf of the
                                                                        H
    116       SUPREME COURT REPORTS                    [2009) 4 S.C.R.


A present respondent no.1 that the allegations were false. It was
  stated that the respondent had divorced the complainant on
  12.9.2004 and, therefore, the case had been filed as a counter
  blast with mala fide motive. It was further submitted that the
  alleged torture committed by the petitioner before the High Court
B on the complainant in America even if accepted as true, the
  ~ame was relatable to the alleged relationship with an American
  girl and had nothing to do with the amount of dowry. Certain
  other factual aspects were alleged to show that the ingredients
  of Section 498A IPC were not made out and there was no
c allegation of breach of trust punishable under Section 406 IPC.
  The application filed by the respondent no.1 was disposed of
  by the High Court after noticing the rival submissions as follows:
          "Learned counsel for O.P. No.2 defended the order. I find
          force in the submission of the learned counsel for the
D         petitioner and on the reasons mentioned by him I also find
          that the alleged demand or receipt of dowry by the petitioner
          is false and mala fide on account of divorce of the
          complainant by the petitioner and that the alleged torture
          by the petitioner was not in connection with unlawful
E         demand of Rs.15 lacs and was not such as to drag 0. P.
          No.2 to commit suicide and that there is no allegation of
          breach of trust against the petitioner.
          In the result, this application is allowed. The impugned
          order as regards the petitioner is set aside."
F
        4. It is stated by learned counsel for the appellant that the
  order is practically non-reasoned and no reason has been
  indicated as to why the respondent's prayer was accepted and
  that the parameters for exercise of power under Section 482 of
G the Code have not been kept in view what has been stated in
  State of Haryana and Ors. v. Bhajanla/ and Ors. (1992 Supp
    (1) sec 335).

         5. Learned counsel for the respondent no.1 supported the
    order of the High Court.
H
  SAMIRA KHANUM V. MD. AFSAR TOWHEED AND ANR 117
             [DR. ARIJIT PASAYAT, J.]

     6. We find substance in the plea of the learned counsel for A
the appellant that the High Court has not indicated any basis or
reason for exercising jurisdiction under Section 482 of the Code.
The application was disposed of in a casual manner.
       7. Therefore, the order of the High Court is clearly
indefensible and is, accordingly, set aside. However, we make 8
it clear that we have expressed no opinion on the merits of the
case which are to be adjudicated. The Matter is remitted to the
High Court for a fresh consideration.
     8. The appeal is allowed.

K.K.T.                                       Appeal allowed.