HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 28
Case :- APPLICATION U/S 482 No. – 2640 of 2013
Applicant :- Smt. Kavita And Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Garun Pal Singh,Vikas Sharma
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Rajeev Misra,J.
Heard Mr. Garun Pal Singh, learned counsel for applicants and the learned A.G.A. representing opposite party No. 1. Despite service of notice, no one has appeared on behalf of opposite party No. 2.
This application under Section 482 Cr.P.C. has been filed challenging summoning order dated 5.11.2012 passed by Judicial Magistrate, Atrauli,District Aligarh in Complaint Case No. 686 of 2012 (Kushkant Vs. Smt. Kavita and others), under Sections 323, 504, 506 and 406 IPC, P.S. Pali Mukimpur, District Aligarh as well as entire proceedings of above mentioned complaint case.
Present application came up for admission on 22.1.2013 and this Court passed the following interim order:-
“Heard learned counsel for the applicants and perused the impugned order.
Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A. He prays for and is allowed six weeks’ time to file counter affidavit.
Issue notice to opposite party no. 2, who may also file counter affidavit within the same period. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after eight weeks before the appropriate Court.
It is submitted by learned counsel for the applicants that the impugned complaint has been filed by the opposite party no. 2, who is husband of applicant no. 1, roping in all the family members of his wife with the ulterior intention of harassing the applicants as a counter-blast to the criminal case which has been instituted against him by the applicant no. 1.
Submissions made by learned counsel for the applicants, prima facie, appear to be correct and he has made out a case for grant of interim relief.
Till the next date of listing, further proceedings of the Complaint Case No. 686 of 2012, under Sections 323, 504, 506, 406 I.P.C., P.S. Pali Mukimpur, District-Aligarh, pending in the Court of Judicial Magistrate, Atruali, Aligarh, shall remain stayed as against the applicants.”
Office has submitted a report dated 5.12.2019 mentioning therein that notice issued to opposite party No. 2 has been served personally. Despite service of notice, no one has put in appearance on behalf of opposite party No. 2.
It transpires from record that marriage of applicant No. 1 Smt. Kavita was solemnized with opposite party No. 2 on 7.3.2011 in accordance with Hindu Rites and Customs. Subsequently, relationship between applicant No. 1 and opposite party No. 2 became strained on account of marital discord. As part of pressure tactics, opposite party No. 2 filed the present complaint dated 29.9.2012, in which present applicants who are the wife and other in-laws of opposite party No. 2 have been summoned under Sections 323, 504, 506, 406 I.P.C. Subsequently, the wife of opposite party No. 2 i.e. the applicant No. 1 herein initiated proceedings by filing a complaint case under Sections 498A, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Nauhjheel, District Mathura, in which opposite party No. 2 herein and others have been summoned, vide summoning order dated 5.11.2012.
Learned counsel for applicants submits that allegations made in the affidavit filed in support of application under Section 482 Cr. P. C. remain unrebutted till date. He next contends that prosecution case as unfolded in the complaint cannot be relied upon as it is a universal truth that the custody of jewelleries and other valuables is always in the custody of husband and not vice versa. Present proceedings under section 406 IPC have been engineered only as part of pressure tactics to gain mileage in the subsequent litigation which may crop up between parties. As such, same are malicious.
On the aforesaid factual premise, learned counsel for applicants submits that present criminal proceedings cannot be sustained and therefore liable to be quashed by this Court.
Per contra, learned A.G.A. submits that the veracity of the complaint cannot be examined in the present proceedings under Section 482 Cr. P. C. A argument raised by learned counsel for applicants relates to the disputed defence of applicants and the same can better be established before the Court below, where trial is pending. He, therefore, submits that the present application is liable to be dismissed.
Having heard learned counsel for applicants and learned A.G.A. representing opposite party No. 1 the inescapable conclusion that in spite of service of notice, the opposite party No. 2 has chosen not to oppose the present criminal misc. application. Even though service has been affected upon opposite party No. 2, but no counter affidavit has been filed till date. This application has remained pending for more than six years.
As the allegations made in affidavit filed in support of the application filed under Section 482 Cr. P. C. remain unrebutted, present application is liable to be allowed.
Present application succeeds and is allowed.
Accordingly, summoning order dated 5.11.2012 passed by Judicial Magistrate, Atrauli,District Aligarh in Complaint Case No. 686 of 2012 (Kushkant Vs. Smt. Kavita and others), under Sections 323, 504, 506 and 406 IPC, P.S. Pali Mukimpur, District Aligarh and entire proceedings of above mentioned complaint case are, hereby, quashed.
Order Date :- 10.2.2020