Allahabad High Court
Waseem Fatima @ Hina And 6 Ors vs State Of U.P. And Another on 13 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:236452
Court No. - 92
Case :- APPLICATION U/S 482 No. - 28150 of 2014
Applicant :- Waseem Fatima @ Hina And 6 Ors
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Dinesh Kumar Mishra
Counsel for Opposite Party :- Govt. Advocate,Meraj Ahmad Khan
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Paritosh Shukla, Advocate holding brief of Sri Dinesh Kumar Mishra, learned counsel for the applicants and Sri Prem Prakash Tiwari, learned A.G.A. for the State. None is present on behalf of opposite party no.2.
2. Despite the matter being listed as peremptorily, none is appearing on behalf of opposite party no.2. Since on various occasions, learned counsel for opposite party no.2 is not appearing, therefore, it is apparent that opposite party no.2 is not interested in prosecuting the instant case.
3. The instant application has been filed seeking quashing of impugned summoning order dated 29.05.2014 as well as entire criminal proceedings of Complaint Case No.300 of 2013 (Merazaul Hasain Vs. Smt. Waseem Fatima & others), under Sections 420, 467, 468, 471, 120-B I.P.C., Police Station Amroha Nagar, District J.P. Nagar (Amroha), pending in the Court of 2nd Additional Civil Judge (J.D.)/Judicial Magistrate, District - J.P. Nagar (Amroha).
4. Learned counsel for the applicants submits that applicant no.1 is the wife of opposite party no.2, applicant no.2 is brother of applicant no.1 and applicant nos.4 and 5 are the sisters of applicant no.1 and applicant no.3 is brother-in-law of applicant no.1 and applicant nos.6 and 7 are the persons who got prepared the Talaqnama/Khulanama, which has been presented by applicant no.1 before the District Magistrate for dissolution of the marriage of opposite party no.2. Learned counsel for the applicants further submits that the application for dissolution of marriage on the basis of said Talaqnama/Khulanama was given to the District Magistrate and which was yet to be adjudicated in accordance with law. Applicant no.1 due to the matrimonial discord between applicant no.1 and opposite party no.2, has filed an F.I.R. under Section 498-A, 323, 506 I.P.C. and Section 3/4 D.P. Act against the opposite party no.2 and his family members. Against which the opposite party no.2 and other family members has filed an Application under Section 482 No.4809 of 2013 which is stated to be pending before this Court in which the application on behalf of the opposite party no.2 was dismissed and on behalf of other applicants entertained and notice was issued and the matter is still stated to be pending.
5. The present complaint has been filed by the opposite party no.2 as a counter blast to the F.I.R. lodged by the applicant no.1 herein against the opposite party no.2 and his family members the only allegation made in the complaint is with regard to the Talaqnama/Khulanama got prepared by the opposite party no.2 and application for dissolution of marriage has been moved by the applicant no.1 before the concerned District Magistrate annexing the said Talaqnama/Khulanama on the basis of the said Talaqnama/Khulanama executed and got prepared by the applicant no.1. Learned counsel for the applicant further submits that the validity of the said Talaqnama/Khulanama is yet to be decided and during the proceedings pending before the District Magistrate and it is open for the opposite party no.2 to raise all his objections with regard to the said Talaqnama/Khulanama in the proceeding pending before the District Magistrate and the instant criminal case has been lodged with malicious intention by the opposite party no.2 as a counter blast, therefore, the same is nothing but malicious prosecution, therefore, learned counsel for the applicants has prayed for quashing the entire proceedings against the applicants herein.
6. Though, after service of notice, Mr. Meraj Ahmad Khan, Advocate has appeared on behalf of opposite party no.2 and has filed Vakalatnama and counter affidavit. Since, last many dates fixed by this Court, he has failed to appear, therefore, the matter is being heard ex parte.
7. Learned counsel for the applicants further submits that the opposite party no.2 has already married someone else and residing with her, however, since the marriage of applicant no.1 and opposite party no.2 is yet to be dissolved through proper adjudication.
8. On the other hand, learned A.G.A. for the State submits that from the facts and circumstances of the case, it is apparent that since more than ten years the criminal proceedings are pending against each other and from the complaint itself it is only mere allegations have been made without any support either documentary or any other material with regard to the forgery committed by the applicants herein, therefore, it is open for the opposite party no.2 to challenge the said Talaqnama/Khulanama in appropriate Court and criminal proceeding for the same is uncalled for on behalf of opposite party no.2.
9. Having heard rival submissions made by learned counsel for the parties and this Court has carefully gone through the record and from perusal of the record, it is found that there was the strange relationship between applicant no.1 and opposite party no.2, for which the applicant no.1 herein has filed an F.I.R. bearing No.191 of 2012 dated 29.08.2012, under Sections 498-A, 323, 506 I.P.C. and Section 3/4 D.P. Act, which is pending adjudication and as the counter blast to the said F.I.R. lodged by the applicant no.1. Subsequently, the said complaint was filed on 03.05.2013, therefore, it is a counter blast case registered by opposite party no.2 with ulterior motive and is nothing but malicious proceeding by opposite party no.2. Therefore, in the light of the judgment of the Apex Court in the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reported in AIR 2021 SC 1918, this case being malicious prosecution on behalf of opposite party no.2 due to the matrimonial discord and as a counter blast, the F.I.R. lodged by the applicant no.1 against opposite party no.2, in the considered opinion of this Court, the instant application is allowed and the entire proceedings of Complaint Case No.300 of 2013 (Merazaul Hasain Vs. Smt. Waseem Fatima & others), under Sections 420, 467, 468, 471, 120-B I.P.C., Police Station Amroha Nagar, District J.P. Nagar (Amroha), pending in the Court of 2nd Additional Civil Judge (J.D.)/Judicial Magistrate, District - J.P. Nagar (Amroha), are hereby quashed.
Order Date :- 13.12.2023
Atul
