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Hafiz Rais Ahmad & Ors. vs State Of U.P. & Another on 7 May, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 28

Case :- U/S 482/378/407 No. – 3899 of 2010

Applicant :- Hafiz Rais Ahmad and others

Opposite Party :- State of U.P. and another

Counsel for Applicant :- Mohd. Abid Ali

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Dinesh Kumar Singh,J.

The present petition under Section 482 Cr.P.C. has been filed against the summoning order dated 1.2.2010 passed by the Chief Judicial Magistrate, Unnao in Case No.1176 of 2008 under Sections 498A, Section323, Section504 and Section506 IPC and Section 3/Section4 Dowry Prohibition Act, Police Station Ganga Ghat, District Unnao.

The complainant earlier filed proceedings under Section 125 Cr.P.C. for granting maintenance to her. Petitioner No.1, husband of the complainant, filed written statement on 16.9.2008 and the stand taken was that he had already divorced the complainant. After written statement was filed, a criminal compliant under Section 190 Cr.P.C. was filed before the Magistrate on 20.12.2008. The complainant got herself examined under Section 200 Cr.P.C. and her father got examined under Section 202 Cr.P.C. There is bald and general allegation against all the family members regarding dowry demand and torture etc. The complainant made some specific allegation against petitioner no.1. However, her father, who was examined under Section 202 Cr.P.C., has made only bald allegations of dowry demand and torture etc to the complainant. The Magistrate on the basis of averments made in the complaint and the statements of the complainant and the witness recorded under Sections 2002 and 202 C.P.C., has summoned all family members of the petitioners and has issued process.

Despite service notice, no one has put in appearance on behalf of respondent no.2.

Heard Sri Abid Ali, learned counsel representing the petitioners and Sri S.K. Tewari, learned AGA representing the State.

It is well settled that while issuing process, the learned Magistrate is required to apply his judicial mind to the facts of the case as well as the evidence and the material available on record. Setting in motion the criminal justice system, is a serious matter. The Magistrate should not issue process as a matter of course.

Hon’ble Supreme Court in the case of SectionPepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, (1998) 5 SCC 749 has held that the Magistrate while taking cognizance and issuing process does not merely act as a Post Office, but he required to apply his judicial mind. He is also required to satisfy himself that a cognizable offence has been committed by the accused before taking cognizance. Paragraph 28 of the said judgment is extracted herein below :-

“28. 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.”

In the present case, it is evident that once the husband of the complainant filed written statement in proceedings under Section 125 Cr.P.C. wherein he took specific stand that he had already divorced to the complainant, the present criminal complaint was filed thereafter before the Magistrate. The statements of the complainant and her father are only bald allegations regarding the dowry demand, torture and demand of Rs.50,000/-, Generator Set and inverter etc. There is no specific averment that who was demanding what item and in what manner one tortured the complainant. The Magistrate has not applied his judicial mind to the facts of the case and has summoned the accused as a matter of course. This is not contemplated under the provisions of SectionCr.P.C. while taking cognizance and issuing process to the accused in a complaint case.

Considering all these facts and circumstances of the case and the evidence of the complainant and her father, I find that these proceedings have been initiated as a counter blast to the stand of petitioner no.1 before the Magistrate in 125 SectionCr.P.C. proceedings.

Considering the facts and circumstances of the case, I find that there is sufficient ground to quash the proceedings against the petitioners in the aforesaid case as the proceedings are nothing but an abuse process of the Court and law.

Thus, the petition is allowed and the summoning order dated 1.2.2010 passed by the Chief Judicial Magistrate, Unnao in Case No.1176 of 2008 under Sections 498A, Section323, Section504 and Section506 IPC and Section 3/Section4 Dowry Prohibition Act, Police Station Ganga Ghat, District Unnao, is hereby quashed.

Order Date :- 7.5.2019

Rao/-

 

 

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