Nusrat Parveen others v. Presence

Judgment

1. This application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been filed by the applicants seeking quashing of the summoning order dated

27.03.2017 passed by the learned Judicial Magistrate/Civil Judge (Junior Division), Udham Singh Nagar in Criminal Complaint Case No. 2729/2016 (Shabir versus Jahan and others) under Sections 323, 392, 504, 506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

2. The factual matrix of the case, as gleaned from the application

and documents on record, reveals that applicant No. 1, Smt. Nusrat Parveen, is the wife of respondent No. 2 (complainant in the criminal case), having married him on 15.06.2012 at Bareilly, Uttar Pradesh. A male child named Arhan was born out of the wedlock on 29.05.2014. The other applicants (Nos. 2 to 6) are the relatives of applicant No. 1.

3. Applicant No. 1 has alleged that due to non-fulfilment of dowry demands, she was ousted from her matrimonial home. Consequently, on 12.08.2014, she filed an application under Section 156(3) Cr.P.C. 2 before the Additional Chief Judicial Magistrate, Bareilly, Uttar Pradesh against respondent No. 2 and his family members. The learned A.C.J.M. Bareilly treated the application as a complaint case vide order dated 23.05.2015 and issued summons to respondent No. 2 and his family members. This matter is still pending before the court.

4. Applicant No. 1 also filed a maintenance case under Section 125 Cr.P.C. against respondent No. 2 on 07.08.2014 before the Family Judge, Bareilly, seeking maintenance for herself and her child, which is still pending.

5. Furthermore, applicant No. 1 has filed a case under the Protection of Women from Domestic Violence Act against respondent No. 2 before the Judicial Magistrate-I, Bareilly, which is also pending.

6. According the applicants, as a counter-blast aforementioned proceedings, respondent No. 2 filed a complaint dated

24.05.2016 before the Chief Judicial Magistrate, Udham Singh Nagar, alleging that on 08.05.2016, the applicants came from Bareilly and committed "marpeet" (assault) with the complainant and also looted Rs. 70,000/- from him.

7. The respondent No. 2 in his complaint stated that on 08.05.2016, he had gone to Sirauli Kalan along with Tayyab and Zakir to buy a residential plot, carrying an advance of Rs. 70,000/- to be given to the property dealer. At around 12:30 p.m., near the Government Primary School, the applicants, along with a few others, surrounded them, abused the complainant, assaulted him and his companions, and forcibly took Rs. 70,000/- from his pockets (Rs. 40,000/- from the right pocket and Rs. 30,000/- from the left pocket).

8. The complainant claimed that he tried to lodge an FIR at Pulbhatta police station, but the police refused to register his complaint. He later sent an application to the Senior Superintendent of Police, 3 Udham Singh Nagar on 19.05.2016, but no action was taken, which led him to approach the court.

9. In the proceedings before the Judicial Magistrate, complainant (respondent No. 2) got himself examined under Section 200 Cr.P.C., and two witnesses, namely Mohammad Tayyab (CW-1) and Zakir (CW-2), were examined under Section 202 Cr.P.C. Based on this evidence, the learned Judicial Magistrate/Civil Judge (J.D.), Udham Singh Nagar issued summons to the applicants on 27.03.2017 for offenses under Sections 323, 392, 504, 506 IPC.

10. Aggrieved by the summoning order, the applicants have approached this Court under Section 482 Cr.P.C., seeking quashing of the summoning order and the entire proceedings of the criminal complaint case.

11. Learned counsel for the applicants, Mr. M. K. Roy submitted that the impugned complaint is nothing but a counter-blast to the cases filed by applicant No. 1 against respondent No. 2. It is contended that the applicants are residents of Bareilly, Uttar Pradesh, while complainant resides in Kichha, Udham Singh Nagar, and the applicants did not have to commit such a crime in a different place/state on the alleged day of the incident.

12. It is further submitted that the applicant No. 4 is an old and ailing woman of about 65 years, a cardiac patient, and therefore, facing difficulties due to the false complaint instituted by respondent No. 2.

13. Learned counsel for the applicants vehemently argued that the learned Magistrate, while issuing the summoning order, ignored that the complaint was only a counterblast to the earlier cases filed by applicant No. 1, and hence, the issuance of the summoning order constitutes a gross abuse of the process of law. 4

14. Additionally, in their supplementary affidavit, the applicants have raised the ground that the learned Magistrate failed to follow the mandatory provision of Section 202 Cr.P.C., which requires an inquiry or investigation before summoning the accused residing outside the territorial jurisdiction of the court. It is alleged that though the complaint was filed on 24.05.2016, and the statements of CW-1 Mohd. Tayyab and CW-2 Zakir were recorded, the Magistrate did not conduct any inquiry or investigation as required under Section 202 Cr.P.C. before issuing the summoning order.

15. In support of their arguments, the applicants have relied upon the decisions of the Supreme Court in National Bank of Oman (2013) 2 SCC 488 and Abhijit Pawar (2017) 1 Supreme 684, both of which emphasize the mandatory nature of the inquiry under Section 202 Cr.P.C. where the accused resides outside the jurisdiction of the Magistrate.

16. Learned counsel for respondent No. 2 vehemently opposed the application and submitted that the complaint lodged by respondent No. 2 is based on an actual incident that took place on 08.05.2016, and it is not a retaliatory action to any litigation as alleged by the applicants.

17. It was submitted that respondent No. 2 is a labour-class person who sells fish in a small temporary kiosk and earns only Rs. 200-300 per day. Due to his poor economic condition, applicant No. 1 left his house and took away their child to her maternal home. There was no question of demand for dowry as alleged by applicant No. 1.

18. Learned counsel further submitted that respondent No. 2 is still ready to take applicant No. 1 back to his home, and in compliance with the court's order, he went for mediation, but applicant No. 1 and her family members are unwilling to reconcile and are trying to implicate him in different criminal cases by taking advantage of her being a woman. 5

19. It was contended that Kichha (Udham Singh Nagar) is not far from Bareilly, so the applicants could very well commit the alleged crime there. Respondent No. 2 produced evidence before the learned Judicial Magistrate, and based on his complaint and evidence, the court rightly issued the summoning order.

20. Learned counsel for respondent No. 2 also argued that there is no abuse of the process of law, and the applicants are not entitled to invoke the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. It was submitted that if the applicants have faith in the judicial system, they can appear before the trial court, file their response, and plead their innocence.

21. Learned AGA representing the State opposed the application, supporting the arguments of respondent No. 2.

22. This court has heard learned counsel for the parties and perused the material on record.

23. The primary issue for consideration in this application is whether the summoning order dated 27.03.2017 issued by the learned Judicial Magistrate/Civil Judge (J.D.), Udham Singh Nagar warrants interference by this Court under Section 482 Cr.P.C.

24. Section 482 Cr.P.C. reads as follows:“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

25. The scope of Section 482 Cr.P.C. has been enunciated by the Supreme Court in numerous decisions. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Supreme Court laid down the following categories of cases where the extraordinary power under 6 Section 482 Cr.P.C. or Article 226 of the Constitution can be exercised to quash proceedings: (i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding instituted) institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;and 7 (vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

26. In Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736, the Supreme Court cautioned that the power under Section 482 Cr.P.C. is not to be exercised mechanically. The inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the court and to secure the ends of justice.

27. With these principles in mind, this court shall now proceed to analyse the contentions advanced by the parties.

28. The applicants' primary contention is that the complaint filed by respondent No. 2 is a retaliatory action to the cases filed by applicant No. 1. However, the mere fact that there are other litigations between the parties does not automatically render the complaint false or frivolous. Each case must be judged on its own merits. In the present case, respondent No. 2 has not only filed a detailed complaint but has also got himself examined under Section 200 Cr.P.C., and two witnesses have been examined under Section 202 Cr.P.C., all of whom have narrated a consistent account of the incident.

29. The applicants also contend that they are residents of Bareilly, Uttar Pradesh, and there was no occasion for them to visit Kichha, Udham Singh Nagar, to commit the alleged offence. However, this is a matter of evidence that can be best appreciated during the trial. The distance between Bareilly and Kichha is not so vast as to make it impossible for the applicants to travel there, especially considering the familial relationship between the parties.

30. The most significant contention of the applicants is that the learned Magistrate failed to follow the mandatory provision of Section 202 Cr.P.C. before issuing the summoning order. Section 202(1) Cr.P.C., as amended by Act 25 of 2005 (w.e.f. 23.06.2006), makes it 8 mandatory for the Magistrate to postpone the issue of process where the accused resides beyond the area in which he exercises jurisdiction, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit.

31. The Supreme Court in Vijay Dhanuka& Ors. v. NajimaMamtaj& Ors., (2014) 14 SCC 638, held that the amended provision under Section 202(1) Cr.P.C. is mandatory in nature and is intended to protect innocent persons from being harassed by false complaints. However, in the present case, the Magistrate has recorded the statements of the complainant under Section 200 Cr.P.C. and of two witnesses under Section 202 Cr.P.C., which amounts to a preliminary inquiry as contemplated under Section 202 Cr.P.C.

32. In National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, relied upon by the applicants, the Supreme Court held that: "The purpose of the amendment was to protect innocent persons from harassment of being forced to appear before a court at a far- off place from where they resided. The objective of the amendment is to save the accused from harassment of a complaint filed at a faraway place and to obviate misuse of criminal process to harass the accused."

33. However, in the present case, though the applicants reside in Bareilly, Uttar Pradesh, the alleged offence took place in Kichha, Udham Singh Nagar, which falls within the jurisdiction of the learned Magistrate.

34. The complainant has alleged that on 08.05.2016, the applicants came to Kichha and committed the alleged offences there. In such a situation, the Magistrate's territorial jurisdiction to try the offence cannot be disputed, and the Magistrate has conducted an inquiry as required under Section 202 Cr.P.C. by recording the statements of the complainant and two witnesses. 9

35. Furthermore, the summoning order dated 27.03.2017 indicates that the learned Magistrate considered the complaint, the statement of the complainant under Section 200 Cr.P.C., and the statements of the two witnesses under Section 202 Cr.P.C. before issuing the summons. This satisfies the requirements of Section 202 Cr.P.C.

36. In Abhijit Pawar v. Hemant & Anr. (2017) 3 SCC 528, the Supreme Court reiterated the importance of the mandatory inquiry under Section 202 Cr.P.C. However, that was a case where no inquiry or investigation was conducted before issuing the process. In the present case, the Magistrate has conducted an inquiry by recording the statements of the complainant and two witnesses. ORDER Upon consideration of the material on record and the legal position, this Court is of the view that no case for interference is made out under Section 482 Cr.P.C. The inherent power to quash proceedings must be exercised sparingly and with circumspection, only to prevent abuse of the process of the Court or to secure the ends of justice. The present case does not fall within any of the seven categories enumerated by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, that justify such intervention at the threshold. The summoning order does not reflect any legal infirmity or procedural impropriety warranting interference. Accordingly, the application under Section 482 Cr.P.C. is dismissed. However, it is made clear that the observations made herein are confined to the adjudication of the present application and shall not influence the merits of the trial. The learned trial court shall proceed independently and uninfluenced by any of the views recorded in this order. Dated:15.04.2025 (Ashish Naithani J.) 10 NR/