HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 28

Case :- APPLICATION U/S 482 No. – 14750 of 2008

Applicant :- Mohd. Rashid And Others

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

Counsel for Applicant :- Rajeev Sisodia,Atul Sisodia

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Rajeev Misra,J.

1. Heard Mr. Virendra Singh Sonkar, Advocate holding brief of Mr. Rajeev Sisodia, learned counsel for applicant and learned A.G.A. for the State. Despite service service of notice, no one appears on behalf of opposite party no.2.

2. This application under Section 482 Cr.P.C. has been filed challenging entire proceeding of Complaint Case No.198 of 2008 (Shahid Hussain Vs. Mohd. Rashid and others) under Sections 147, Section148, Section452, Section323, Section504, Section506 I.P.C., Police Station-Afjalgarh, District-Bijnor pending in the Court of Ist Additional Chief Judicial Magistrate, Bijnor.

3. It transpires from the record that the marriage of applicant no.3, Shaheen was solemnized with opposite party no.2 on 04.06.1999 in accordance with Muslim Rites and Customs. Subsequently, on account of marital discord, relationship between applicant no.3 opposite party no. 2 became strained. Faced with despair and destitution, applicant no.3 initiated criminal proceedings against opposite party no.2 by filing Complaint Case No. 88 of 2007 under Sections 324, Section498A, Section504 and Section506 I.P.C., which is pending in the Court of Chief Judicial Magistrate, Bageshwar (Uttrakhand). Subsequently, applicant no.3 filed Case No. 26 of 2007 under Section 125 Cr.P.C. claiming maintenance from opposite party no.2 which is said to be pending in the Court of Chief Judicial Magistrate, Bageshwar (Uttarankhand). As a counter blast to the aforesaid criminal proceedings initiated by applicant no.3, opposite party no.2 has now initiated present criminal proceedings by way of Complaint Case No.198 of 2008 (Shahid Hussain Vs. Mohd. Rashid and others) under Sections 147, Section148, Section452, Section323, Section504, Section506 I.P.C., Police Station-Afjalgarh, District-Bijnor.

4.Learned counsel for applicants submits that present criminal proceedings initiated by opposite party no.2 are a counter blast to the criminal proceedings initiated by applicant no.3. He therefore submits that since present criminal proceedings have been engineered as a counter blast to the criminal proceedings initiated by applicant no.3, the same cannot be sustained in law. Elaborating his submission he contends that present criminal proceedings have been initiated only to wreak vengeance which is not permissible in view of law laid down by Apex Court M/S Eicher Tractor Ltd. and others Vs. Harihar Singh and another 2009 (1) JIC 245(SC) . He further submits that in the present case, it is evident from the complaint filed by opposite party no.2 itself that the applicants are residing outside the territorial jurisdiction of Court concerned. Therefore by reason of provisions contained in Section 202 Cr.P.C., the Magistrate was under a legal obligation to conduct an enquiry himself or get an enquiry conducted through Police officer before summoning the applicants. However, from perusal of impugned summoning order, it is clear that no such exercise was undertaken by Magistrate. Aforesaid provisions have been explained by Apex Court in the case of National Bank of Oman Vs. Barakara Abdul Aziz and another reported in 2013 (2) SCC 488. As such, it was obligatory upon Court below to conduct an enquiry himself or direct the police officer to hold an enquiry before summoning the applicants which has not been complied with by court below. Thus impugned summoning order passed by the Court below cannot sustained.

5. Learned A.G.A. in opposition to the present application submits that the veracity of the complaint cannot be examined in proceedings under Section 482 Cr.P.C. and they can better be judged in trial which is pending before the Court below.

6. Having heard learned counsel for the applicants and learned A.G.A. for State, I am of the considered opinion that the present criminal proceedings have been engineered only to wreak vengeance. It is not disputed that applicant no.3 is the wife of opposite party no.2 and on account of conduct of opposite party no.2, applicant no.3 was forced to initiate criminal proceedings against opposite party no.2 and others. It is only after the criminal proceedings have been initiated by applicant no.3 that opposite party no2 has engineered present criminal proceedings which is nothing else but only to wreak vengeance and therefore present criminal proceedings cannot be sustained in view of the law laid down by Apex Court in the case of M/S Eicher Tractor Ltd. and others (Supra).

7. Apart from the above, this Court further finds that procedure contemplated under Section 202 Cr.P.C. has not been complied with by the Magistrate. Neither he has conducted an enquiry himself or directed the police officer to hold an enquiry on the allegations made in the complaint. Thus, procedure provided in Section 202 Cr.P.C. has not been complied with by the Magistrate. Consequently, Magistrate committed a jurisdictional error in passing the impugned summoning order.

8. Considering the totality of facts and circumstances as noted above, the present application succeeds and is allowed. The impugned summoning order dated 05.04.2008 as well as proceedings of Complaint Case No.198 of 2008 (Shahid Hussain Vs. Mohd. Rashid and others) under Sections 147, Section148, Section452, Section323, Section504, Section506 I.P.C., Police Station-Afjalgarh, District-Bijnor are hereby quashed.

Order Date :- 7.1.2020

YK