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Khurseed Noor Kha vs State Of U.P. And Another on 14 July, 2021

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?Court No. – 83

Case :- APPLICATION U/S 482 No. – 10662 of 2021

Applicant :- Khurseed Noor Kha

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

Counsel for Applicant :- Ankit Agarval

Counsel for Opposite Party :- G.A.

Hon’ble Rajeev Misra,J.

Heard Mr. Ankit Agarwal, learned counsel for applicant and learned AGA for State.

Perused the record.

This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 12.2.2021 passed by Judicial Magistrate, Garhmukteshwar, (Hapur) in Complaint Case No. 710 of 2020, (Smt. Gulfasa Vs. Khursheed Noor Kha and others) under Section 406 I.P.C.

Learned counsel for the applicant contends that complainant opposite party 2 had initially lodged an FIR dated 23.7.2020 which was registered as Case Crime No.322 of 2020, under Sections 498A, 504, 506, 313 I.P.C., Sections 3/4 D.P. Act and 3/4 Muslim Women (Protection of Rights on Marriage) Act, 2019. In the aforesaid FIR six persons namely, Khursheed Noor Kha,(applicant herein) Farid, Munne, Hasina, Nazma and Shagufta have been nominated as named accused. From the perusal of FIR photocopy of which is on record as annexure-4 to the affidavit it is apparent that allegations with regard to commission of offence under Section 406 I.P.C. have also been made. However, no charge sheet has been submitted against applicant in above mentioned case crime number. Police has submitted charge sheet dated 11.9.2020 only against two of the named accused namely Farid Noor Khan and Nazma.

On the aforesaid factual premise it is urged by learned counsel for applicant that subsequently complainant opposite party 2 has filed above mentioned complaint case with same allegations. Consequently, present criminal proceedings are not only malicious but also an abuse of process of court. He therefore, contends that impugned summoning order passed by court below is liable to be quashed by this court.

Per contra learned AGA has opposed this application. Learned AGA contends that factum regarding lodging of above mentioned FIR has been duly disclosed in the complaint filed by complainant opposite party 2. Concerned Magistrate upon evaluation of material on record has recorded his prima facie satisfaction. As such there is no illegality in the summoning order. Learned AGA further contends that applicant is husband of opposite party 2. Therefore, there is a presumption of entrustment of goods given to opposite party 2 at the time of her marriage with applicant. The issue as to whether any entrustment was made or not is an issue of fact which can be decided during the course of trial. Consequently, it cannot be said that no prima facie case is made out against applicant.

Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of 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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.

In view of above, application fails and is liable to be dismissed.

It is accordingly dismissed.

Order Date :- 14.7.2021




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