Jammu and Kashmir and Ladakh High Court: While deciding the instant petition wherein the Single Judge Bench of Justice Sanjay Dhar deliberated upon 2 important issues— firstly, approach of the Courts while examining allegations against relatives of a husband accused of matrimonial crimes; secondly, approach of investigating agencies while undertaking investigation of the offences stated to have taken place about few years prior to the lodging of the FIR. The Court held that, in matters of matrimonial crimes, allegations against a husband’s relatives must be carefully scrutinized by the Courts. Sanjay Dhar, J., also observed that Section 473, CrPC gives jurisdiction to a Court to take cognizance of an offence beyond the prescribed period of limitation in certain cases like cruelty to women etc.
Facts of the case: On 18-10-2021, an FIR was lodged with the Women’s Police Station, Rambagh, Srinagar, against the petitioners by the complainant-wife. In the report it was alleged that about seven years back, she had married the petitioner Azhar Hassan Masoodi out of which, a son was born. It was further alleged that she was being subjected to mental and physical torture after her marriage in connection with demands of dowry. The wife also levied allegations of harassment and stated that she was being threatened with divorce. In the report it was also alleged that on 29-09-2015 she was thrown out of her matrimonial house along with her minor child. As regards the delay in lodging FIR, the wife stated that there were talks of compromise going on between the parties, which is why she was unable to lodge FIR in the time.
The FIR was lodged against the husband and his brother, sister and brother-in-law.
Contentions: The petitioners contended that the impugned FIR was filed six years after the complainant-wife was thrown out of her matrimonial home, therefore, the instant prosecution is barred under the provisions in Section 468 CrPC. The counsels also contended that impugned FIR and the material collected by the investigating agency does not disclose commission of any offence against the petitioners.
It was further submitted that the complainant has roped in all the relatives of her husband without there being any specific allegations against them.
Per contra, the respondents argued that the impugned FIR and the material collected by the investigating agency clearly discloses commission of cognizable offences against the petitioners. It was also submitted that offences alleged to have been committed by the petitioners are continuing in nature; therefore, the bar contained in Section 468, CrPC is not applicable to the instant case. It was further contended that the bar contained in Section 468 is regarding taking of cognizance and not about undertaking of investigation of an offence.
Observations and Decision: Perusing the facts and contentions, the Court observed that the impugned FIR contains very specific allegations against the husband; however, the allegations against relatives are very general in nature.
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The High Court relied on K. Subba Rao v. State of Telangana, (2018) 14 SCC 452; Rajesh Sharma v. State of U.P., (2018) 10 SCC 472 and other related cases wherein it was observed that, “Courts should be careful in proceeding against the relatives in crimes pertaining to matrimonial disputes and dowry deaths (…) the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out”.
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It was thus held that allegations against husband’s relatives require careful scrutiny by the Courts. Since the impugned FIR does not mention any specific instances of cruelty alleged to have been committed by the relatives in the instant case, thus, the prosecution against them cannot be sustained.
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Vis-a-vis the delay in lodging of FIR by the complainant-wife, the Court observed that Section 468, CrPC creates a bar to taking of cognizance after a lapse of period of limitation. Cognizance of an offence is taken only after final report of investigation of the FIR is laid before the Court. Registration of an FIR does not amount to taking of cognizance, therefore, the bar contained in Section 468 cannot be made applicable to the registration of FIR and undertaking investigation into an offence. The Court also noted the fact that there were talks of compromise going on between the parties, hence the delay.
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The Court further stated under Section 473, CrPC, Courts can take cognizance of an offence beyond the prescribed period of limitation and mere delay on the part of the complainant in lodging the complaint, cannot by itself be a ground to quash the FIR [Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795]
[Junaid Hassan Masoodi v. UT of J&K, 2022 SCC OnLine J&K 606, decided on 01-08-2022]
Advocates who appeared in this case :
Z. A. Qureshi, Sr. Advocate, with Ms. Farhana, Advocates, for the Petitioners;
Usman Gani, GA and Wajid Haseeb, Advocates, for the Respondents.
*Sucheta Sarkar, Editorial Assistant has prepared this brief
