Parvej Anr v. State of Criminal Misc. Application No

02.07.2024 passed by the learned Judicial Magistrate-First, Haridwar as well as the entire criminal proceedings of Complaint Case No. 2545 of 2022, titled as “Talib Husain vs. Usman and Others”, pending against them for offences under Sections 498-A, 323, 504 IPC and Section 3/4 of the Dowry Prohibition Act, 1961.

2. The facts, to the extent necessary for adjudication, are that the marriage of Sana @ Soni, daughter of Respondent No. 2, was solemnized with one Usman (brother- in-law of Applicant No.1) on 13.11.2016. Applicant No. 1 is the husband of Applicant No.2. The Applicants were married in the year 2012 and, ever since their marriage, have been residing separately at Village Bongla, Police Station Bahadrabad, District Haridwar, whereas the complainant’s daughter was residing with her husband and in-laws at Village Meerpur, Police Station Kotwali Ranipur.

3. The proceedings commenced on an application filed under Section 156(3) of the erstwhile Code, wherein general allegations were levelled against the entire family of the husband. By order dated 04.02.2023, the learned Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 2 Ashish Naithani J. Magistrate declined to summon the present Applicants, inter alia observing that the Applicants were living separately and no witness had attributed any specific act of cruelty or dowry harassment to them.

4. The complainant preferred Criminal Revision No. 28 of 2023, titled as “Talib Husain vs. State & Others”, which came to be dismissed for non-prosecution on 16.02.2023. Subsequently, a second revision, being Criminal Revision No. 49 of 2023, “Talib Husain vs. State & Others” was filed and allowed on 22.11.2023, directing reconsideration of the summoning order dated 04.02.2023. Thereafter, by order dated 08.02.2024, the learned Magistrate summoned all accused, including the present Applicants. The Applicants assailed that order through Criminal Revision No. 76 of 2024, titled as “Usman Malik and Others vs. State and Anr.”, which was partly allowed vide judgment and order dated

13.05.2024 and the matter was remanded consideration with respect to the Applicants alone.

5. Upon remand, the learned Magistrate passed the impugned summoning order dated 02.07.2024 again directing the issuance of process against the Applicants. Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 3 Ashish Naithani J. Criminal Revision No. 209 of 2024 filed by the Applicants was dismissed on 20.11.2024, which has led to the institution of the present proceedings.

6. Heard learned counsel for the parties and perused the records.

7. Learned counsel for the Applicants submitted that the Applicants are distant relatives who have never resided with the complainant’s daughter in a shared household. It was argued that the allegations are omnibus and un- particularized, lacking any specific overt act against the Applicants.

8. It was further submitted that the earlier finding of the Magistrate, that no material existed against the Applicants, has not been displaced by any new evidence.

9. According learned counsel Applicants, the summoning order dated 02.07.2024 reflects non-application of mind and is liable to be set aside.

10. Learned State Counsel opposed the application and submitted that once the Magistrate has taken cognizance found material sufficient for summoning, Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 4 Ashish Naithani J. jurisdiction of this Court under Section 528 BNSS ought to be exercised sparingly. It was contended that the issues raised by the Applicants can be appropriately adjudicated during trial.

11. Despite service, none has appeared on behalf of Respondent No. 2 to contest the present proceedings.

12. Upon due consideration, this court observes that the scope of interference under Section 528 BNSS is circumscribed by the requirement that the power be exercised either to prevent abuse of process or to secure the ends of justice. At the stage of summoning, the court is required to assess whether there exists a prima facie case or a grave suspicion against the accused. The High Court, while exercising inherent jurisdiction, does not undertake a meticulous appreciation of evidence but may certainly intervene where the summoning order demonstrably suffers from non-application of mind or where the allegations, even if taken at their face value, do not constitute the ingredients of the alleged offences.

13. The complaint, as well as the statements of CW-1, Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 5 Ashish Naithani J. CW-2 and CW-3, discloses that the Applicants were married in 2012 and have lived separately ever since. No specific incident of cruelty, assault or demand of dowry has been attributed to them. The allegations against the Applicants are general in nature, stated in sweeping terms, and do not disclose any proximate act which would attract the penal provisions invoked in the complaint.

14. It is also pertinent that the initial summoning order dated 04.02.2023 had specifically recorded that no material existed against the Applicants. The subsequent orders, including the impugned order dated 02.07.2024, do not refer to any additional material which emerged post- remand. In the absence of any new material, a reversal of the earlier exculpatory finding, without cogent reasoning, manifests non-application of judicial mind.

15. In matrimonial disputes, there is, at times, a tendency to implicate all members of the husband’s family regardless of their actual role. While every genuine complaint must be addressed strictly in accordance with law, the criminal process cannot be permitted to operate on the basis of omnibus allegations against relatives who Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 6 Ashish Naithani J. neither reside in the matrimonial home nor have any demonstrable connection with the alleged acts.

16. The revisional order dated 20.11.2024 also does not cure the fundamental infirmity in the summoning order. The learned revisional court has affirmed the summoning order without adverting the absence of specific allegations, the earlier finding of the Magistrate in favour of the Applicants, or the absence of any newly discovered material. Such an order cannot be sustained.

17. In these circumstances, permitting the proceedings to continue against the present Applicants would amount to an abuse of the process of the court. The case, as presented, does not disclose the ingredients of the offences alleged against the Applicants, even if the entire material is accepted at its face value. ORDER The Criminal Miscellaneous Application under Section 528 BNSS is allowed. The judgment and order dated 20.11.2024 passed by the learned 1st Additional District & Sessions Judge, Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 7 Ashish Naithani J. Haridwar in Criminal Revision No. 209 of 2024, titled as “Parvej & Anr. Vs. State of Uttarkhand and Anr.” and the summoning order dated 02.07.2024 passed by the learned Judicial Magistrate-First, Haridwar in Complaint Case No. 2545 of 2022, insofar as they relate to the present Applicants, are hereby set aside. The criminal proceedings of Complaint Case No. 2545 of 2022, titled as “Talib Husain vs. Usman and Others”, stands quashed against the present Applicants alone. Proceedings shall continue against the remaining accused strictly in accordance with law.

10.12.2025 (Ashish Naithani, J.) Akash AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, 2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef7 3518c148d140566ab1e26f9cbe61d, postalCode=263001, st=Uttarakhand, serialNumber=27096a1625377537a487dee49224c 891823fc6a0334628b21e516047ed4f22f7, cn=AKASH Criminal Misc. Application No. 1011 of 2024 --- Parvej Aalam & Anr. v. State of Uttarakhand & Anr. 8 Ashish Naithani J.