Allahabad High Court
Yasmin @ Noor Bano vs State Of U.P. & Others on 5 January, 2021
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- U/S 482/378/407 No. - 3227 of 2020
Applicant :- Yasmin @ Noor Bano
Opposite Party :- State Of U.P. & Others
Counsel for Applicant :- Bajhul Quamar Siddiqui,Mohammad Saqib Siddiqui,Shivangini Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh,J.
1. Present application under Section 482 Cr.P.C. has been filed with a grievance that ignoring the statement of the complainant/victim under Section 164 Cr.P.C., the Investigating Officer had filed charge-sheet under Sections 498A, 323, 504, 506 IPC, 3/4 Dowry Prohibition Act in FIR No.129 of 2018, Police Station Baghauli, Hardoi and the learned Magistrate vide summoning order dated 25.10.2019 passed in Case No.0909 of 2019 has issued summons against respondent Nos.2 to 5 under Sections 498A, 323, 504, 506 IPC and has ignored the relevant evidence available with the charge-sheet.
2. Learned counsel for the petitioner submits that summoning order did not disclose judicial application of mind and it has been issued in mechanical manner without perusing the evidence available with the charge-sheet. He has further submitted that the learned Magistrate was not empowered to substract the offence under Section 3/4 of the Dowry Prohibition Act in view of the judgment of the Supreme Court in the case of State of Gujarat vs Girish Radhakrishnan Varde: (2014) 3 SCC 659 as well as judgment dated 01.04.2019 passed by this Court in Crl.Misc.Case No.3041 of 2013. He, therefore, submits that since impugned order has been passed against the law laid down by the Supreme Court and this Court, therefore, it is liable to be set aside.
3. Mr. Rao Narendra Singh, learned A.G.A. has, however, submits that there are several contradictory judgments on this aspect whether the learned Magistrate has power to subtract or add the charge at the time of taking cognizance or later stages.
4. I have considered the submissions and perused the judgments cited by the learned counsel for the parties.
5. Charge-sheet has been filed under Sections 498A, 323, 504, 506 IPC, 3/4 Dowry Prohibition Act, however, learned Magistrate has issued summons only under Sections 498A, 323, 504, 506 IPC. In view of the aforesaid prima facie the order appears to have been passed against the dictum of the judgment in the case of State of Gujarat vs Girish Radhakrishnan Varde (supra) and, therefore, summonsing order is liable to the quashed.
6. In view of the aforesaid impugned summoning order dated 25.10.2019 is set aside and the petition is allowed.
The learned Magistrate is directed to pass a fresh reasoned order in accordance with law considering the evidence available on record.
Order Date :- 5.1.2021
prateek
