Shadiya Bano vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3955 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- APPLICATION U/S 482 No. - 1218 of 2023
 

 
Applicant :- Shadiya Bano
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Secrt. Lko. And Another
 
Counsel for Applicant :- Firoz Ahmad Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

Heard learned counsel for petitioner, learned A.G.A. for the State and perused the material available on record.

By means of this petition under Section 482 Cr.P.C. the petitioner has prayed to quash the impugned judgment and order dated 13.1.2023 passed by the learned Special Judge, S.C./S.T. Act/Additional Sessions Judge, Court No. 2, Gonda in Criminal Revision No. 183/2022 (Smt. Shadiya Bano Vs. State of U.P. and another) as well as impugned summoning order dated 7.3.2022 passed by the learned Chief Judicial Magistrate, Court No. 1, Gonda in Complaint Case No. 897/2021 (Smt. Nagma Vs. Shakeela & others) under Sections 498-A, 323 I.P.C. and 3/4 of the Dowry Prohibition Act, Police Station- Kotwali Dehat, District- Gonda including entire proceedings thereof.

Learned counsel for petitioner has submitted that initially an application under Section 156 (3) Cr.P.C. has been moved by the applicant against the opposite party no. 2 and Smt. Najma on 9.4.2021. This complaint was treated as complaint case and the opposite party no. 2 was summoned to face the trial under Sections 323, 504, 506 I.P.C. Later on as a counter blast, the opposite party has lodged the present complaint against the applicant on 12.7.2021 only to create pressure upon the applicant and closed relatives of the applicant. The statement of the complainant was recorded under Section 200 Cr.P.C. and statements of the witnesses, namely, Mohd. Rafi and Noor Bux was recorded under Section 202 Cr.P.C. Consequently, the summoning order was passed by the Magistrate Court on 7.3.2022 in which the applicant and closed relatives of the applicant were summoned to face the trial under Sections 498-A, 323 I.P.C. and 3/4 of the Dowry Prohibition Act. Being aggrieved with the summoning order the applicant filed revision before the Sessions Court and the Sessions Court without appreciating the evidence available on record, rejected the revision on 13.1.2023. Being aggrieved with the rejection order of the revision the applicant has filed the present application under Section 482 Cr.P.C. before this Court. Learned counsel for the applicant submitted that the applicant is jethani of the opposite party no. 2. He further submitted that marriage of the complainant and co-accused- Babbu was taken place on 11.10.2015 and after two months of the marriage the husband of the complainant went to Saudi Arab on 17.12.2015 and since then he did not return in India. The husband of the opposite party no. 2 is in Saudi Arab but the complainant has concealed the said facts in her complaint and statement recorded under Section 200 Cr.P.C. The applicant is totally innocent and has been falsely implicated in the present case. He further submitted that the applicant is separate living from the opposite party no. 2 and thus, there is no chance of torture, harassment and cruelty committed by the applicant. The present complaint case is nothing but an abuse of the process of law.

On the other hand, learned A.G.A. for the State has submitted that prima facie case is made out against the petitioner and the applicant has been rightly summoned.

Before arguing the case on merits, learned counsel for the petitioner while pressing the present petition submits that the trial court while summoning the petitioner has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the trial court without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the trial court has not taken into consideration the material placed before the trial court and, therefore, the trial court has materially erred in summoning the petitioner.

So far as quashing entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioner. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. Considering the arguments of learned counsel for the parties and going through the record, it cannot be said that no offence is made out against applicant and all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C.

The prayer for quashing the proceedings and impugned order is refused.

So far as regard the cognizance and summoning order passed by the learned trial court concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and appellant failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.

The disputed defence of the petitioner cannot be considered at this stage. In the absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, which is already refused. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless.

As requested, the petitioner is permitted to appear before the concerned court within fifteen days from today through counsel and move an application claiming discharge. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period of two months from today, which shall not exceed.

No coercive measure shall be adopted against the petitioner for a period of two months from today or till the disposal of the discharge application, whichever is earlier.

If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.

With the aforesaid directions/observations, this petition under Section 482 Cr.P.C. is disposed of.

Order Date :- 8.2.2023

Anuj Singh