Shanu @ Firoz And 3 Others vs State Of U.P. And Another
2023 Latest Caselaw 21065 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Neutral Citation No. - 2023:AHC:158845
 
Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 23989 of 2023
 

 
Applicant :- Shanu @ Firoz And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ishwar Chandra Tyagi,Ram Charan Lal
 
Counsel for Opposite Party :- G.A.,Krishna Kumar Shukla
 

 
Hon'ble Sanjay Kumar Singh,J.

1-This application under Section 482 Cr.P.C. has been filed by the applicants to quash the summoning order dated 11.01.2022, order dated 12.05.2023 passed in Criminal Revision No. 112 of 2023 and proceedings of complaint case no. 1971 of 2021 (Syed Alam Ali vs. Shanu @ Firoz & Others), under Sections 452, 392 I.P.C., Police Station Baradari, District Bareilly, pending in the court of Judicial Magistrate, Court No. 2, Bareilly.

2-Heard learned counsel for the applicants, learned Additional Government Advocate for the State of U.P./opposite party no. 1 and Mr. Krishna Kumar Shukla, learned counsel appearing on behalf of opposite party no. 2.

3-The brief facts of the case which are required to be stated are that on 07.07.2018, Syed Alam Ali/opposite party no. 2 claiming that Smt. Samina is his wife lodged a Non-Cognizable Report no. 0311 of 2018, under Section 498 I.P.C. against the applicant no. 1 with regard to an incident dated 06.07.2017 alleging inter-alia that on 06.07.2017, the applicant no. 1 coaxing his wife took her to his house and despite best effort made by him, he did not return his wife. The said NCR was not investigated, because no permission under Section 155(2) Cr.P.C. was granted by the Magistrate concerned. Thereafter, the opposite party no. 2 filed an application under Section 97/98 Cr.P.C. before Additional City Magistrate-Ist, Bareilly which was registered as case no. 1 of 2018, in which on 10.07.2018, an order was passed by the Additional City Magistrate-Ist, Bareilly directing the In-Charge Inspector, Police Station Baradari, District Bareilly to search the house of the applicant no. 1 (Shanu @ Firoz) and in case Smt. Samina is found in his house, she shall be produced before his Court. Thereafter, Smt. Shamina was produced before the Additional City Magistrate-Ist, Bareilly on 12.07.2018 and her statement was recorded, in which she has stated inter-alia that about eight years back, her marriage was solemnized with the opposite party no. 2-Syed Alam Ali but he had given divorce to her. Thereafter, she solemnized her second marriage with the applicant no. 1-Shanu @ Firoz Khan. She also disclosed that from the wedlock of Syed Alam, three children were born who are living with opposite party no.2 and she is living with the applicant no. 1 Shanu @ Firoz Khan, therefore, she does not want to go with the opposite party no. 2. Thereafter, the Additional City Magistrate-Ist, Bareilly vide order dated 12.07.2018 sent Smt. Samina to Nari Niketan observing that it seems that Samina is not able to give statement from her free mind. It was also directed that she shall be produced again on 16.07.2018. In compliance thereof, Smt. Samina was again produced on 16.07.2018 before the Additional City Magistrate-Ist, Bareilly and her statement was again recorded on 16.07.2018 in which also she has reiterated her version as given on 12.07.2018. Thereafter, final order was passed by Additional City Magistrate-Ist, Bareilly on 16.07.2018 directing that Smt. Samina is free to go anywhere as per her choice. In the said background of the fact, Smt. Samina started living peacefully with the applicant no. 1 in her matrimonial home. On 03.10.2018, opposite party no. 2 again filed a complaint against the applicants before the Court of Additional Chief Judicial Magistrate-Ist, Bareilly alleging inter-alia that Samina while leaving his house also took Rs. 40,000/- in cash and 12 tolas of gold jewelery with her, in which after recording the statement of opposite party no. 2 under Section 200 Cr.P.C. and Zishan @ Sonu/PW-1 and Julfiqar/PW-2 under Section 202 Cr.P.C., the applicants have been summoned vide order dated 11.01.2022, which was challenged in Criminal Revision No. 1121 of 2023 but the same has been dismissed vide order dated 12.05.2023. Both the above mentioned orders dated 11.01.2022 and 12.05.2023 are the subject matter of challenge in the present application.

4-Learned counsel for the applicants, hammering the prosecution case, submits that the complaint has been filed by the opposite party no. 2 on false and concocted allegations. The complaint was filed after delay of one year and three months and in the light of statement dated 12.07.2018 and 16.07.2018 of Smt. Samina in a proceeding under Section 97/98 Cr.P.C., no offence is made out against the applicants. Learned counsel for the applicants, placing reliance upon the judgment of the Apex Court in the case of M/s Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749, submits that criminal prosecution of the applicants, under the facts of the case, is nothing but abuse of process of the Court and the same is liable to be quashed.

5-On the other hand learned A.G.A. as well as learned counsel appearing on behalf of opposite party no. 2 opposed the prayer of the applicants in the light of contents of complaint dated 03.10.2018 but they do not dispute the factual aspects of the matter as argued on behalf of the applicants and noted above.

6-Having heard the learned counsel for the parties and perusing the record, I find that for the first time when the opposite party no. 2 lodged N.C.R. no. 0311 of 2018 on 07.07.2018, no allegation of taking Rs. 40,000/- or any ornaments has been levelled against the applicants. Even it is not disputed that the said N.C.R. has not been investigated as no permission under Section 155(2) Cr.P.C. was given by the Magistrate, because he did not consider it fit to investigate the matter. I also find that in the proceedings under Section 97/98 Cr.P.C. initiated by the opposite party no. 2, the statement of the Samina (alleged victim) was recorded twice on 12.07.2018 and 16.07.2018 but she has not supported the version of opposite party no. 2/complainant and clearly stated that the opposite party no. 2 divorced her, thereafter, she remarried with the applicant no.1. I also find that the complaint dated 03.08.2018 of this case has been filed after inordinate delay of one year and three months but in the said complaint also, the material facts with regard to proceeding under Section 97/98 Cr.P.C. initiated by the opposite party no. 2/ complainant himself has been concealed, as such, it is evident from the record itself that the opposite party no. 2 did not approach the concerned court below with clean hand. Considering the judgment of the Apex Court in the case of M/s Pepsi Foods Ltd. (Supra) relied upon on behalf of the applicants, it would be relevant to quote paragraph no. 28 of the said judgment.

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

7-Under the peculiar facts of the case, this Court feels that in the light of statement dated 12.07.2018 and 16.07.2018 of Samina in a proceedings under Section 97/98 Cr.P.C. initiated by the opposite party no. 2, the criminal proceeding against the applicants is abuse of process of the Court and in order to secure the ends of justice, the same is liable to be quashed.

8-Accordingly, the impugned summoning order dated 11.01.2022, order dated 12.05.2023 passed by the revisional court and further proceedings against the applicants with regard to aforesaid case are hereby quashed.

9-The instant application U/s 482 Cr.P.C. is allowed.

Order Date :- 8.8.2023

Saurabh