IFTEKHAR USMAN SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these writ petitions under Article 226 of the Continuation of India are being heard and disposed of by this common judgment, as the facts are interconnected and parties are the same. The earlier Writ Petition, being Writ Petition No. 2757 of 2004, was filed by one Iftekar in the nature of habeas corpus seeking production of his wife Asra allegedly from the custody of her parents, who are the petitioners in the later Petition being Writ Petition No. 221 of 2005. The said later petition is for quashing of the FIR filed by the said Iftekar at Sir J. J. Marg Police Station, Mumbai allegedly for offences punishable under Sections 170, 420, 365 r/w. 34 of the Indian Penal Code.

(2.) The facts giving rise to both the petitions, in nutshell, are thus - Mohd. Ansari has a daughter by name Asra. Mohd. Ansari is a resident of Hyderabad and was living with his family including daughter Asra. Iftekar is resident of Mumbai. About one and half years ago Iftekar had gone to Hyderabad where he met Asra, daughter of Petitioner, in a CAFE where they exchanged their E-mail addresses and thereafter they were regularly in contact with each other and their friendship blossomed into love affair. Iftekar was in Bombay but Asra on his instructions left Hyderabad and came to Bombay on4.7.2004 without informing anybody and got married with Iftekar. THE marriage was registered as per relevant rules on6.7.2004. THEreafter Asra used to stay with Iftekar at Mumbai. However, it appears from the record that after initial gloss was worn out, Asra found that the so-called love marriage was in fact a marriage of lust, and craved to break away from Iftekar. In the meantime she contacted her parents and expressed her wish to do so. Finally on21.12.2004 she left her marital home and went to her parental home at Hyderabad. Iftekar, when he found that Asra had left Mumbai, filed a complaint at J. J. Marg Police Station, Mumbai naming parents and another unknown 9/10 persons alleging that they had impersonated themselves as police officers and took away Iftekar as well as Asra with them in their Car and after some time left Iftekar and took away Asra with them. Though the names of parents of Asra were mentioned in the FIR, admittedly they were not the persons, who allegedly abducted Asra, but it was alleged that there were 9/10 unknown persons who took away Asra allegedly on instructions from parents of Asra i. e. Mohd. Ansari and his wife and hence their names also came to be mentioned in the FIR. On registration of the offence the investigation commenced. In the meantime on4. 01. 2005 Asra wrote a letter to Inspector of Police, Banjara Police Station, Hyderabad intimating him that she had come to her parental home of her own accord and voluntarily had left her marital home at Mumbai without informing anyone, as she was not happy there. Asra along with her father's advocate one Mr. Saifuddin went to Banjara Hill Police Station at Hyderabad where her statement was recorded in Crime No. 481 of 2004 under missing girl complaint which was lodged by her father wherein she had stated that she was not removed from the house of Iftekar by force, but she had left the said house of her own accord and no one was responsible except herself. Further, one more statement of Asra was recorded under Section164 of Cr. P. C. before the learned II Metropolitan Magistrate, Hyderabad wherein she reiterated the fact that she had left her marital home voluntarily without any instruction from anybody and had come to her parents of her own accord. THE letter was addressed to Inspector of Police, J. J. Marg Police Station, Mumbai on12.1.2005 intimating them that her father was not responsible for her coming back to Hyderabad and the allegations filed against her father were false. On these factual matrix both the Petitions came to be filed. So far as Petition filed by Iftekar for habeas corpus is concerned, after hearing both the sides, we thought it fit to ask Asra, who is a major and literate woman, to remain present before us for the purpose of interview by us. Accordingly on16.2.2005 we interviewed her in Chamber alone, as well as in the presence of Advocates from both the parties, as well as the petitioners in both the matters. THE result of the interview was recorded by us by detailed order dated16.2.2005. Asra informed us that she was staying at Hyderabad voluntarily and out of her free will and she was not interested in staying in company of Iftekar and her marriage with said Iftekar was a mistake. She further confirmed that she had given her statement under Section164 of Cr. P. C. before the learned Magistrate at Hyderabad out of her free will and without any coercion from whomsoever. She was not interested in returning to Mumbai to stay with Iftekar and she wants to reside at Hyderabad without any contact with Iftekar. She has further stated that she had no grudge or complaint against the said Iftekar and, therefore, considering the statement we are satisfied that she arrived at the said decision voluntarily and out of her own free will and without any coercion from whomsoever. We categorically questioned her on various and different aspects and were convinced that there is no case for issuance of any direction or for her production or for sending her to reside with the petitioner Iftekar. Her statement also discloses that she was residing at Hyderabad out of her free will and without any coercion from whomsoever. Though Iftekar had expressed his desire to talk to her for some time, she had showed her total disinterest for any dialogue with Iftekar but had expressed unwillingness even to talk with him. In view of this position we issued certain directions to the parents of Asra to co-operate with the police in the matter of investigation in the complaint filed by Iftekar against them to which they were readily agreed. THErefore, so far as earlier Writ Petition No. 2757 of 2004 filed by Iftekar for directions and habeas corpus is concerned, the statement of Asra before us coupled with her statement under Section164 of Cr. P. C. before the Magistrate at Hyderabad and her various letters to police authorities at Hyderabad and Mumbai put an end to the matter and we hold that the said Petition is devoid of merits and therefore, deserves to be dismissed.

(3.) Meanwhile, we were also informed that the parties had agreed to settle the dispute and minutes of order were also prepared but could not be filed as they sought further time for negotiations. Thereafter Mohd. Ansari, petitioner filed his affidavit on6.5.2005 before this court stating that before any settlement talks were started, said Iftekar demanded the amount of Rs. 20 lacs from him and cautioned him that if the amount is not paid to him he would not discuss any settlement. The affidavit further reads that this demand was made in presence of investigating officer Shri. Sunil Bajare. This aspect, on query from the court, was not denied by the investigating officer in the open court, when we asked about its correctness. Considering the statement made by Asra referred to above, the conduct of the complainant Iftekar, and all other facts revealed to the Court narrated above leave no doubt whatsoever that FIR was lodged by said Iftekar on cooked-up story with the sole intention to pressurise the petitioner so that either Asra could be compelled to go back to Mumbai and reside with him or he be enriched by Rs. 20 lacs by her father. This element gains support from total lack of any investigation by the police into the correctness of the allegations made in the FIR regarding involvement of unknown 9/10 persons and so called story of kidnapping or abduction. Therefore, we have no doubt whatsoever that the FIR is lodged with malafide intention to pressurise Mohd. Ansari to send his daughter Asra back to Iftekar. Further, when Asra has categorically made statement before this court as well as at other places that she is not interested in going to Iftekar, then Iftekar wants to capitalise on the issue that he is still married with Asra and then wants to extract amount of Rs. 20 lacs from Mohd. Ansari. Therefore, we are of the view that it is classic case of filing of FIR with total malafide intention, which amounts to abuse of process of law.