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MALIK MOHAMMAD & OTHERS versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Malik Mohammad & Others v. State Of U.P. & Another - CRIMINAL MISC. WRIT PETITION No. 13363 of 2006 [2006] RD-AH 20843 (11 December 2006)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court no. 50)

Criminal Misc. Writ Petition No. 13363 of 2006

1. Malik Mohammad son of Sri Noor Mohammad @

Safi@ Noori.

2. Noor Mohammad Safi @ Noori son of Ali Mohammad.

3. Smt. Jinab wife of Sri Noor Mohd. Saifi @ Noori.

4. Kmr. Shakira D/o Sri Noor Mohd. Saifi @ Noori.

5. Nabi Mohd. @ Bhoora son of Sri Noor Mohd. Saifi @ Noori.

All R/o of Mohalla Mohan Gali Awadh Behari, P.S.

Kasganj, Etah.

6. Shoaib Mohammad @ Fawao son of Sri Noor Mohd.

Saifi @ Noori, R/o Mohalla Mohan Gali, Awadh Bhari,

P.S. Kasganj, Etah.

7. Smt. Saista, wife of Mohd. Athar Uddin Saifi,

S/o late Mohd. Yaqoob, R/o Khandari Chauraha,

Nasinabad Colony, P.S. New Agra,

District Agra. ........... Accused- Petitioners

Vs.

1. State of U.P.

2. Smt. Anjum Jahan, W/o Mlik Mohammad,

D/o Mohammad Hussain, R/o Mohalla Kaboolpur, Near Ara

Machine, Kotwali,

District Budaun. .. Respondents.

****

Hon'ble Barkat Ali Zaidi, J

1. This petition under Article 226 of the Constitution of India arises out of a dispute between a husband and wife. There is a long and lingering ill will and mistrust between the two, resulting in multifarious litigation of divorce nature. The case in hand arises out of proceedings ( complaint No.5180 of 2004) under Section 3 / 4 of Dowry Prohibition Act instituted on a basis of complaint filed in the Court of Chief Judicial Magistrate, Budaun.

2. The Magistrate summoned the accused-petitioners under Section 498-A I.P.C. and Sec. 3 / 4 of Dowry Prohibition Act on a Revision No. (132 of 2005) the Addl. Sessions Judge ( Court No. 1) was of the view that no offence under Section 498-A I.P.C. was made out and only an offence under Section 3/4 of Dowry Prohibition Act was made out.

3. It is against this order dated 19.10.2004 of Sessions Judge, the petitioners have come up to this Court.

4. I have heard Sri Ali Hasan, learned counsel for the petitioners and Sri R.D. Yadav, Addl. Government Advocate for the State.

5. Three points have been argued by the counsel for the petitioners which can be considered separately;

(i) It was argued that since the wife has been divorced by the husband accused, subsequent to the order of summoning by the Magistrate, the charge under Sec. 3/ 4 of The Dowry Prohibition Act becomes inoperative. On what basis this argument is founded, was not elaborated by the counsel for the petitioners. If an offence has already been committed, divorce will have no bearing thereon, and will not obliterate an offence, which has been committed.

(ii) It was also pointed out, that since the Sessions Judge has exonerated the accused from the charge under Section 498-A I.P.C., the charge under Section 3 /4 Dowry Prohibition Act, also collapses. This argument is without substance, because the two offences are separate and have separate ingredients, that is why the two charges are usually leveled together. If the argument of the learned counsel is accepted, a charge of one of the two aforesaid offences, would become redundant, which cannot be the accepted position.

(iii) The third argument was about jurisdiction, and it was contended, that the Court at Budaun, has no jurisdiction and the jurisdiction would lie in the Court at Etah because the demand of dowry is said to be made in husband's house in Kasganj, Etah.

6. It has to be seen that in the complaint, it has been mentioned that there was a Panchayat bout the husband and wife dispute at Budaun and during the course of Panchayat, the accused-petitioners reiterated their demand for dowry. The demand for dowry, according to the allegations of the complaint, was also therefore, made at Budaun, which gives the Budaun Court jurisdiction for trial of the offence. The counsel for the petitioners has referred in this connection to the case of Y. Abrham Ajith and others Vs. Inspector of Police ,Chennai and another, 2004 Cri. L.J. ,4180 , whereon the facts of the case, it was held that since no demand of dowry was made at Chennai , the court at Chennai had no jurisdiction and only the Nagarcoil Court will have jurisdiction, where the demand was made. This case law, will be , therefore, of no help to the petitioners.

7. The petition cannot, therefore, succeed.

8. Before parting with the case, we may mention that we find it distressing to note that not only the husband and his parents but other members besides there being the brothers and sisters of the husband have been impleaded in the complaint. There is an imminent possibility of implicating the whole family with a view to harass them and exert pressure. The Magistrate will, therefore, examine closely the evidence available against them and keep this possibility in perspective at the time of framing charge.

9. Petition dismissed.

10. A copy of this order be sent by the Registry to the Chief Judicial Magistrate through District Judge Budaun.

w.p.13363/06

Dated: 11.12.2006

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