Mohammad Islam And And Another vs State Of U.P. And Another
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Allahabad High Court

Mohammad Islam And And Another vs State Of U.P. And Another on 30 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:93998
 
Court No. - 73
 

 
Case :- APPLICATION U/S 482 No. - 2227 of 2025
 

 
Applicant :- Mohammad Islam And And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ashok Kumar Singh Bais
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Shri Ashok Kumar Singh Bais, learned counsel for the applicant and Sri S.P. Singh, learned State Law Officer for the State.

2. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the Complaint Case No.4316/2020, Mohammad Amil Versus Mohammad Islam and another, under Sections 3/4 Protection of Rights on Marriage of Muslim Women Act, 2019 to the extents of applicant no.1 and under section 354-A, IPC, to the extents of applicant no.2 Police Station Kotwali Dehat, District Saharanpur including impugned summoning order dated 08.10.2021 passed by learned Additional Chief Judicial Magistrate, 1st, Saharanpur.

3. Learned counsel for the applicant submits that a first information report was lodged on 25.10.2019 being FIR No.0646, under Sections 354, 376, 571, 313, 328, 323, 506 IPC read with section 3/4 of the Protection of Rights on Marriage of Muslim Women Act, 2019 by the opposite party No. 2 who happens to be the real brother of the victim against the applicants with an allegation that the applicant no. 1 is the husband of the sister of the opposite party no. 2 and the applicant no. 2 is the brother-in-law. Further allegation is that the marriage of the applicant no. 1 stood solemnized on 16.03.2019, however, prior to it, he was married and with the wedlock of the erstwhile wife, there were children. It is further alleged that the applicant no. 2 who is the brother-in-law had one or two occasions attempted to commit bad act and when the said act was complained by the opposite party no. 2 to her husband applicant no. 1, nothing was done. The sister of the opposite party no. 2 became pregnant, however, the applicants got an intoxicating material mixed in some food items, pursuant whereto the sister of the opposite party no. 2 became unconscious and she was against her will aborted. Threat was also administered by the applicants upon the sister of the opposite party no. 2 that in case, the factum of abortion is said to somebody then the sister of the opposite party no.2 done to death. Post one week, the allegation is that the applicants had beaten the sister of the opposite party no. 2 by slapping with the aid of the fist and the applicant no. 1 also pronounced Talaq three times and the opposite party no. 2 was divested of her right as a wife and she was thrown out from her matrimonial house. The said fact was also apprised to her brother. Complaints were lodged followed by the FIR. Learned counsel for the applicant has submitted that post regarding recording of the statements, a final report came to be submitted by the investigation officer on 16.12.2019 and thereafter a protest petition also came to be filed by the opposite party no. 2 which transformed into a complaint case and post recording of the statements under Sections 200 and 202 of the Cr.P.C., the applicant has been summoned under Section 3/4 Protection of Rights on Marriage of Muslim Women Act, 2019.

4. Questioning the said order, the applicant has been filed the present application.

5. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for more than one reason, firstly, once an investigation took place post lodging of the first information report and on the basis of the statements so recorded of the witnesses, the final report came to be submitted on 16.12.2019 then there were no occasions to have allowed the protest petition and summoned the applicants and there was no fresh material so as to infuse criminality. Secondly, the prosecution witnesses are interested witnesses and there is no independent witness so as to surface the truth, particularly, when the statements under Section 200 Cr.P.C. is of the complainant who happens to be the real brother followed by the statements of the nephew of the victim being Farid and on top of it, the statement of victim herself under Section 202 of the Cr.P.C. Thirdly, the entire proceedings are nothing but a sheer abuse of process of law so as to implicate and to fasten criminality upon the applicants. It is thus submitted that the entire proceedings including the summoning order be set aside.

6. Learned State Law Officer while countering the submissions so made by the learned counsel for the applicants submits that in the matter of summoning, what would be relevant, would be the statements under Section 200 and 202 Cr.P.C. vis-a-vis the allegations and in case, there are no material contradictions then this Court may not throttle the investigation at the stage of summoning.

7. I have heard learned counsel for the parties and gone through the records carefully.

8. In the present case at hand, at the instance of the applicants, challenge has been raised to the summoning order dated 08.10.2021 summoning the applicant no. 1 under Section 3/4 Protection of Rights on Marriage of Muslim Women Act, 2019 and the applicant No.2 under Section 354A of the IPC. There are certain criterias, according to which, it is to be tested as to whether the summoning order suffers from illegality or not. Amongst others one of the important factors would be the allegations contained in the complaint vis-a-vis the statements under Section 200 and 202 of the Cr.P.C.

9. Applying the said principles in the facts of the case, what would be relevant, would be the allegations in the complaint, plainly and simply, the allegation in the FIR against the applicant no. 1, husband is pronouncing of Triple Talaq and so far as the applicant no. 2 is concerned, attempting to commit rape on one or two occasions and also exhibiting indecent behaviour and gesture. The statement of the complainant who happens to be the real brother under Section 200 Cr.P.C., it relates to get the abortion of the sister of the opposite party no. 2 done against her will and also administering beating and the allegation is also of Triple Talaq. So much so, the statement of the victim under Section 202 Cr.P.C. itself is very clear, wherein against the applicant no. 1, it has been alleged that the applicant no. 1 had pronounced Triple Talaq and she was thrown away from her matrimonial house and further allegations against the applicant no. 2 is regarding attempting to commit bad act twice and also against the applicant nos. 1 & 2 for getting the abortion done against her will. Importantly, there is no material contradictions or variations in the statements under Section 200 read with Section 200 Cr.P.C. vis-a-vis the allegations in the first information report.

10. As regards, the submission of the learned counsel for the applicants that already investigation stood triggered, post lodging of the first information report and a final report stood submitted and there happened, no fresh material so as to treat the State case as a complaint case and summoned the applicants is concerned, the same is out of context, particularly, when at the stage of summoning in a complaint case, what would be relevant, would be the nature of the allegations contained in the complaint vis-a-vis the statements under Section 200 and 202 of the Cr.P.C. In case, there is no material contradictions of abortion in the statements under Section 200 read with Section 202 Cr.P.C. vis-a-vis the complaint then the case becomes triable and the investigation is not to be throttled at the stage of summoning.

11. With respect to the objection raised by the learned counsel for the applicants that already a final report stood submitted, thus, the consideration which weighed at that point of time would be germane and would come with overwhelming force is concerned, the same is not a factor to adjudge the correctness of the summoning order. As per the allegations in the first information report and the statement of the victim under Section 202 Cr.P.C., it is alleged that Triple Talaq was pronounced and she was thrown out from her matrimonial house. As a matter of fact, Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 itself provides that the Talaq is to be void and illegal and Section 4 of the Act itself provides for punishment for pronouncing Talaq. Once the position being so, it cannot be ruled out that on prime facie basis, the case is triable.

12. As regards, the allegation against applicant no. 2 is concerned, there are pinpointed allegations in the first information report and in the statement of victim under Section 202 Cr.P.C. that the applicant no. 2 had attempted to outrage the modesty of the sister of the opposite party no. 2. Once the position being so, it would not be appropriate at this juncture in the present proceedings to throttle the investigation, once the allegations themselves are liable to be tried. Insofar as the arguments so sought to be raised by the learned counsel for the applicants that it is a clear misuse of process of law at the end of the opposite party no. 2 is concerned, the same is not convincible, particularly, in view of the allegations therein and furthermore it might be at best a defence consideration whereof would only arise when the trial commences.

13. Notably this Court at this juncture is not required to also delve into the aspect relating to the nature and the weight of the witnesses as the same are the matter of trial which need to not be adjudged in the present proceedings.

14. In view of the said discussion, no case is made out. Accordingly, the application stands dismissed.

15. At this stage, learned counsel for the applicants submits that suitable direction be issued in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another; decided on 07.10.2021 in S.L.P. No.5191 of 2021 with relation to enlargement on bail.

16. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay.

17. Any observations made by this Court is only confined to summoning order.

Order Date :- 30.5.2025

A. Prajapati