(State v. Jaan Mohd.), arisin
Case Details
Neutral Citation No. - 2024:AHC:110822 Court No. - 76 Case :- APPLICATION U/S 482 No. - 21293 of 2024 Applicant :- Jaan Mohd Opposite Party :- State Of Up. And Another Counsel for Applicant :- Syed Wajid Ali Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings, including charge-sheet dated 06.07.2023 and cognizance/summoning order dated 06.10.2023, of Criminal Case No. 50429 of 2023 (State Vs. Jaan Mohd.), arising out of case crime no. 474 of 2023, under Section 494 IPC and Section 3/4 The Muslim Women (Protection of Rights on Marriage) Act, 2019, P.S.- Khorabar, District- Gorakhpur, pending in the court of A.C.J.M.-Ist, Gorakhpur.
Legal Reasoning
their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. In this connection, a reference may also be made to the case of R. Kalyani vs. Janak C. Mehta and Others, 2009 (1) SCC 516, Rupan Deol Bajaj vs. K.P.S. Gill (1995) SCC (Cri) 1059, Rajesh Bajaj vs. State of NCT of Delhi, (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd vs. Biological E Ltd. & Ors, 2000 SCC (Cri) 615. It has been held that if a prima facie case is made out disclosing ingredients of the offence, court should not quash the charge sheet/complaint. It is equally well settled that at this stage questions of fact cannot be examined and a mini trial cannot be held. At this stage, the matter cannot be examined meticulously. 7. In the instant matter, as per prosecution version, opposite party no.2 was legally wedded wife of applicant and that on 21.07.2022 at 11:00 AM, the applicant has pronounced triple talaq in one go and thereby the opposite party no.2 was divorced by way of Talaq- e-Biddat, whereas the case of applicant is that he has pronounced talaq by way of sending three notices at the interval of one month each, and thus, applicant has not divorced the opposite party no.2 by way of Talaq-e-Biddat. It is apparent that matter involves a question of fact whether the talaq was pronounced by way of Talaq-e-Biddat or otherwise. It is well-settled that at this stage, matter cannot be examined meticulously. In fact, the submissions raised by learned counsel for the applicant call for determination on questions of fact, which may adequately be adjudicated only by the trial Court. The submissions made on the point of law can also be more appropriately gone into by the trial Court. Thus, at this stage, it cannot be said that no prima-facie case under Section 3/4 M.W. Act is made out. Hence, prayer for quashing of proceedings and charge-sheet is refused. 8. In so far, the summoning of applicant under Section 494 I.P.C. is concerned, it may be pointed out that Section 494 I.P.C. falls within chapter XX of Indian Penal Code and as per provisions of Section 198 Cr.P.C., the Court cannot take cognizance of offence punishable under chapter XX of I.P.C. except upon a complaint made by some person aggrieved by the offence. In the instant matter, there is nothing to show that any such complaint was made by the opposite party no.2. It appears that opposite party no.2 has lodged First Information Report under Section 494 I.P.C. and Section 3/4 W.M. Act and after investigation police have submitted charge-sheet for these offences and accordingly the trial Court has taken cognizance for these offences. Thus, so far the summoning of applicant under Section 494 I.P.C. is concerned, the same is barred by the provision of Section 198 Cr.P.C. Hence, the summoning of applicant for offence under Section 494 I.P.C. is not in accordance with law. 9. In view of aforesaid, the summoning of applicant under Section 494 I.P.C. is quashed and the impugned summoning order stands modified to that extent. The case under Section 3/4 M.W. Act would proceed further in accordance with law. 10. The instant application u/s 482 Cr.P.C. is disposed of accordingly. Order Date :- 8.7.2024 SP/-
Arguments
3. It has been submitted by learned counsel for the applicant that the impugned proceedings are nothing but an abuse of the process of the Court and no prima-facie case under Section 3/4 Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter referred to as M.W. Act) is made out. The allegation that applicant has pronounced triple talaq by way of Talaq-e-Biddat is wholly false, rather the applicant has divorced the opposite party no.2 by sending three notices each after a lapse of one month and, therefore, the said divorce cannot be termed as instantaneous divorce (Talaq-e-Biddat), and thus, the provisions of M.W. Act are not attracted. It was also stated that applicant has also filed a suit seeking declaration of talaq between the parties. The copy of said notices sent to the opposite party no.2 have been annexed as annexure no.6 to the present application. Referring to facts of the matter, it was submitted that no case under Section 3/4 M.W. Act is made out, and thus, the impugned proceedings are liable to be quashed. 4. Learned A.G.A. has opposed the application and submitted that during investigation, in her statement the informant has clearly stated that on 21.07.2022 at 11:00 AM, the applicant has pronounced triple talaq by pronouncing the same simultaneously and deserted her. Similarly, Salman Khan, who is son of applicant, has also made similar statement. It was submitted that in view of these facts, it cannot be said that no prima-facie case is made out against the applicant. 5. I have considered the rival submissions and perused the record. 6. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at