Salma Syyed Abdul Qadir And ... vs State Of U.P.And Another
2011 Latest Caselaw 5463 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

		  A. F. R.
 
Court No. - 23                                                                        
 
Case :- U/S 482/378/407 No. - 3008 of 2011
 
Petitioner :- Salma Syyed Abdul Qadir And Another
 
Respondent :- State Of U.P.And Another
 
Petitioner Counsel :- Ajai Krishna
 
Respondent Counsel :- Govt. Advocate,Alok Srivastava
 

 
Hon'ble Sudhir Kumar Saxena,J.

By means of this petition under Section 482 Cr.P.C., the petitioners challenge the Criminal Proceedings of Complaint Case no. 1031 of 2010 (Barkat Ali Vs. Salman Sayyad Abdul Qadir and Ors.) under Section 379 I.P.C. pending in the court of Judicial Magistrate-II, Gonda, whereunder they are being prosecuted.

1) In short, petitioners' case is that Salma Syyed Abdul Qadir, petitioner no. 1 was married with son of respondent no. 2, Barkat Ali Idrisi on 23-05-2008 as per Muslim rites and rituals in Mumbai and fulfilled all the matrimonial obligations. After marriage both the husband and wife resided at Mumbai. However, husband turned out the petitioner no. 1 on 14-06-2008 and divorced her by pronouncing Talaknama on 14th June, 2008 over phone. This Talaknama was invalid and she continues to be legally wedded wife of son of the respondent no. 2. Since 15th June, 2008, the petitioner no. 1 is residing with her brother who was taking care of her all expenses. Petitioners regularly made request to the son of the opposite party no. 2 to bring back the applicant no. 1 but all the efforts to settle the matter have failed. Ultimately, petitioner no. 1 filed application under Section 125 Cr.P.C. in the Family Court at Bandra, Mumbai which was partly allowed on 03-04-2010 to the extent that as interim maintenance Rs. 2,500/- per month would be payable from the date of application i.e. 18-05-2009. As a  counter-blast, father-in-law of the petitioner no.1 filed a complainant case under Section 379 I.P.C. before the Judicial Magistrate, Gonda.

2) In the complaint case, he has alleged that Salma(petitioner no. 1) and his brother came to Gonda on 30th April, 2010. On 01-05-2010, complainant was to attend a marriage so he asked the petitioner no. 1 and her brother to accompany but they refused to do so, therefore, he had left them in his house. When he came back around 6(?), he found the  house locked  and on inquiry from neighbour, namely, Sri Harishanker Singh, he found that the petitioners have taken Jewellery and cash amount of Rs. 35,000/- and ran away. When complainant's son went to the petitioner's house in Mumbai they threatened with dire consequences. Statement of Barkat Ali  was recorded under Section 200 Cr.P.C. and statements of Nankau and Harishanker Singh were recorded under Section 202 Cr.P.C.

3) Learned Magistrate vide order dated 19-10-2010, summoned the petitioners under Section 379 of the I.P.C. This very order is sought to be challenged on the ground that the petitioners are resident of Mumbai. This is an abuse of process of the Court summoning the petitioners and the said order has been passed without applying the mind etc.

4) I have perused the complaint and statements recorded under Sections 200 and 202 Cr.P.C.

5) In the complaint it is not stated that as to what was the relation between the complaint and the proposed accused persons. Only accused persons are said to be relative with visiting terms. Nankau in his statement recorded under Section 202 Cr.P.C. although states that the petitioners were on visiting terms but he  too failed to mention the fact that she was the daughter-in-law of the complainant. Time for opening the door is mentioned to be 6 (?) in the complaint. In the statement recorded under Section 200 Cr.P.C., no specific time was given while in the statement recorded under Section 202 Cr.P.C. specific time was given.

6) Magistrate was supposed to apply his mind before passing the summoning order. Prosecution in a criminal case cannot be initiated merely on asking. The accused persons were resident of Mumbai. Learned Magistrate has not considered the impact of amended Section 202 Cr.P.C. which makes it incumbent upon him to make inquiry if the proposed accused persons are not residing within the jurisdiction vested with him. Magistrate should have carefully seen the complaint and the statements recorded in support thereof. Circulars of the High Court are specific that the statement under Section 200 Cr.P.C. would be recorded by Magistrate himself. This was done so that Magistrate may elicit the truth. Had Magistrate observed this, she would have immediately known that the petitioner no. 1 was daughter-in-law of the complainant. At least, he should have been asked to disclose the relationship which was supposedly so intense that complainant would hand over all the keys of his house.

7) In the complaint, it is mentioned that the accused-persons came to complainant's house on 30th April, 2010 and the complainant was supposed to participate in marriage which was scheduled for 1st May, 2010.

8) In para-4 of the counter affidavit, it is admitted that Salma was the wife of Yousuf  who is the son of Barkat Ali, the complainant. It is further stated that this marriage was in the knowledge  of Barkat Ali  while he has failed to mention this fact in his complaint. It is also mentioned in para 3 that the complainant went to attend the marriage on 1st May, 2010. The complainant asked the accused persons to accompany him but in the statement recorded under Section 200 Cr.P.C., it is said that he went to attend the marriage ceremony on 30th April. Moreover, it is also stated in the statement that when he came back on 1st May, 2010 in the morning , he found the house locked then he searched for key and got the key from neighbours. When he opened the door he found that the jewellery and cash amounting to Rs. 35,000/- has been taken away by Salma and Jubed. Nankau as well as Harishankar Singh have stated in their statement that Barkat Ali came from the marriage at 6 pm in the evening on 01-05-2010 then key was given to him. This was a major contradiction.

9) Learned Magistrate has failed to ensure that only Salma and Jubed and nonelse could have taken the jewellery and cash as key of the house has been given to his neighbour Harishankar Singh and same remained with him from 12 to 6 p.m.. Railway ticket has been filed along with the counter affidavit which shows that two persons travelled from Lokmanyatilak Terminus to Gorakhpur on 29th April, 2010 while complainant is resident of District Gonda. The arrival time in the Gorakhpur is shown in the ticket is 7:20 am on 1st May, 2010, while complainant's case is that petitioners arrived there at the residence of complainant on 30th April, 2010. It is true that Magistrate is not supposed to closely evaluate the statements and materials available on record but it is definitely expected from him to have applied his mind to the facts of the case while passing the order. Magistrate was supposed to consider the entire evidence, material available on recored and probabilities as well.

10) In order to check the abuse of process of Court, Section 202 Cr.P.C. has been amended on 23-06-2006 and it has been made obligatory upon the Magistrate that " he shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding" This amendment shows the intention of legislative to stop the proceedings where the accused is sought to be summoned from far of places and inquiry be made by Magistrate if he chooses not to order investigation.

11) The cases where the persons from far of place are summoned on complaints have assumed the dangerous proportion, as such, legislature intervened to check this malady by introducing the aforesaid amendment. The word 'inquiry' occurring in Section 202(I) assumed significance in this background. This inquiry has to be meaningful inquiry and not just an eyewash. Where the accused persons sought to be summoned do not belong to the jurisdiction vested with the Magistrate, he is supposed to act more actively for eliciting the truth and not just act in a mechanical manner. Ordeal of facing criminal prosecution that to from far off places tantamounts punishment as such, a greater duty is cast upon the court before issuing process. In this case, Magistrate has failed to carry out the mandate of legislature. In the complaint, there is no mention of relationship between the complainant and the accused persons, no details of jewellery which is said to have been removed has been given. Even no specific time of opening the door has been mentioned(AM or PM.). It is true that it may not be necessary to give all the details in the complaint but it was bounden duty of Magistrate to clear his doubts by examining the complainant under Section 200 Cr.P.C. or other witnesses. Magistrate should have asked the complainant to give the details of jewellery and details of relationship, exact timing and if that had been done, Magistrate would have immediately known that allegations in complaint are aimed at only harassing his daughter-in-law and her brother. Complaint was absolutely vexatious and frivolous.

12) The prosecution case as stated in complaint does not inspire confidence. Although the petitioners have also filed railway ticket which shows that they had gone to Ajmer and returned from Nizammuddin to Bandra Terminus on the relevant dates but defence cannot be seen at this stage.

13) This Court under the jurisdiction of 482 Cr.P.C. is not supposed to evaluate the evidence but could definitely ensure  that process of the court is not abused. Learned Magistrate has failed to apply his mind to the complaint, statements of Barkat Ali etc. Salma being daughter-in-law came from Mumbai along with Juber on 30th April and committed theft and returned to Mumbai, does not inspire confidence. The contention that complaint case has been lodged as counter-blast by opposite party no. 2 to maintenance case filed in Mumbai wherein the order for interim maintenance has been passed on 3rd April, 2010 has force. Entire prosecution case appears to be improbable , as such, the proceedings in complaint case  no. 1031 of 2010 are liable to be quashed.

14) It is manifest that the orders suffers from vice of non-application of mind. Summoning order is blatant abuse of process of the Court, as such, it is a fit case where the powers under Section 482 Cr.P.C. should be exercised. Consequently, complaint and proceedings are liable to be quashed.

15) Petition under Section 482 Cr.P.C. is allowed. Proceedings of Complaint Case no. 1031 of 2010 (Barkat Ali Vs. Salman Sayyad Abdul Qadir and Ors.) under Section 379 I.P.C. pending in the court of Judicial Magistrate-II, Gonda, and summoning order dated 19-10-2010 are quashed.

Order Date :- 1.11.2011

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