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SMT. TYABUNISSA AND ANOTHER versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Smt. Tyabunissa And Another v. State Of U.P. And Another - APPLICATION U/s 482 No. - 7118 of 2006 [2007] RD-AH 17982 (16 November 2007)

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 AT ALLAHABAD

RESERVED

Crl. Misc. Application no. 7118 of 2006

Smt. Tayabbunissa and another. . . . . . . . . . . . . . . . Applicants.

Versus

State of U.P. and another . . . . . . . . . . . . . . . . . . . . Opp.Parties..

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Hon'ble R.K.Rastogi,J.

This is an application under section 482 Cr.P.C. to quash the proceedings of complaint case no. 622/IX/2005, Smt. Shahin Anwar Vs. Mohd. Fuzailuddin Siddiqui, under sections 498-A, 323, 506 I.P.C. and 3/4, Dowry Prohibition Act pending in the court of the Addl. Chief Judicial Magistrate-Ist, Banda.

The facts relevant for disposal of this application are that complainant O.P. no. 2 filed a complaint against accused applicants and Mohd. Fuzailuddin Siddiqui and Jamaluddin alias Raju with these allegations that her marriage had taken place with Mohd. Fuzailuddin on 19.4.2003. When she went to her in-laws' house all the four accused persons,i.e. her husband Mohd. Fuzailuddin Siddiqui, her brother-in-law (Jeth ) Jamaluddin alias Raju, mother-in-law Smt. Tayabbunissa and sister-in-lawSmt. Shamim Fatima, expressed their dis-satisfaction with the dowry given in marriage and they demanded a Maruti Car and Rs.1,00,000/- in cash. Mohd. Fuzailuddin's first marriage had already taken place with another lady and he had left that lady after keeping the entire dowry with him. The complainant and her parents came to know about this first marriage after marriage of the complainant with Mohd. Fuzailuddin Siddiqui. The accused did not provide food to her and used to beat her. In the meantime, the complainant became pregnant and when her condition deteriorated, her brother came to her and took her with him to her parents' house. She gave birth to a child at her parents house, and thereafter her husband came to her and made a promise that he would not demand dowry and took her with him, but the accused continued to torture her and they threatened that they would either kill her or divorce her and then perform another marriage of Mohd. Fuzailuddin Siddiqui. Accused Jamaluddin is an Advocate and he used to say that even if they kill her, no action will be taken against them. On 31.7.2005 accused Mohd. Fuzailuddin Siddiqui and Jamaluddin took her to her parent's house at Banda and left her there stating that they would not keep her with them unless she brings with her a Maruti Car and Rs.1,00,000/- cash. They also beat the complainant. This incident was witnessed by Sulaina, Ashad and other persons. The complainant gave an application against these four accused persons to higher authorities but no action was taken. Then she filed this complaint under sections 498A, 323 and 506 I.P.C. and ??, Dowry Prohibition Act.

The learned Magistrate recorded statements of the complainant and her witnesses Sulaina and Anwar Khan under sections 200 and 202 Cr.P.C. He was of the view that on the basis of the above evidence a prima facie case under sections 498A, 323 and 506 I.P.C. and ??, Dowry Prohibition Act was made out against the accused persons. He, therefore, summoned the accused persons vide his order dated 30.1.2006. Since the accused did not appear, order for issuing bailable warrants was passed on 23.5.2006. Aggrieved with these orders the applicants, who are mother-in-law and sister-in-law of the complainant filed this application under section 482 Cr.P.C.

The applicants have filed an affidavit of Tayabbunissa in support of this application in which the allegations of demand of dowry and of atrocities were denied. They alleged that actually the complainant's father Anwar Khan, his wife, sons and daughter came to the house of the accused on 3.8.2006 in a Bolero Jeep and took the complainant with them along with her entire articles and ornaments etc. They were stating that there is a function in the family. Thereafter the complainant started to move applications against the accused persons and on an application addressed to the S.S.P. Allahabad, the S.H.O. of police station Naini, Allahabad was directed to investigate the matter. He submitted a report that the allegations made in the application of the complainant were false and actually the accused Jamaluddin had also got two criminal cases decided in Lok Adalat at Allahabad on 31.7.05.

A counter affidavit was filed by the complainant O.P. no.2 in which she has reaffirmed the allegations made in the complaint. It was stated in the counter affidavit that police had submitted a wrong report in collusion with the accused persons.

A rejoinder affidavit has also been filed by the applicants in reply to the counter affidavit.

I have heard learned counsel for both the parties and have perused the record.

It is to be seen that at the state of summoning the accused persons the court has to see whether a prima facie case is made out against the accused on the basis of unrebutted allegations made in the complaint and the statement of the complainant and witnesses under sections 200 and 202 Cr.P.C., and if such a case is made out on the basis of those unrebutted allegations, the accused are to be summoned. As such, there is no legal infirmity in the order passed by the Magistrate because the complaint and the statements of the complainant and her witnesses prima facie disclose offence under sections 498A, 323 and 506, I.P.C. and ??, Dowry Prohibition Act.

The pleas taken by the accused are all factual. The factual plea of alibi of the accused Fuzailuddin and Jamaluddin that they were present in court on 31.7.2005 cannot be adjudicated upon in these proceedings under section 482 Cr.P.C. These pleas are to be taken at the proper stage before the trial court. It is also to be seen that this plea of alibi is regarding Mohd. Fuzailuddin and Jamaluddin and they have not filed any application under section 482 Cr.P.C., but this application u/s 482 Cr.P.C. has been filed by Smt. Tayabbunissa and Smt. Shamim Fatima, who are mother-in-law and sister-in-law of the complainant, and in this application under section4 82 Cr.P.C. no benefit of the aforesaid plea of alibi of co-accused can be granted to the present applicants. These factual pleas can be taken before the Magistrate at the proper stage, i.e.at the stage of framing of charges after evidence under section 244 Cr.P.C. or at the defence stage, but so far as this summoning order is concerned, I do not find any illegality or infirmity in this order.

It was further submitted by the learned counsel for the applicants that the applicant no. 1 is an old lady of 72 years and she would be unnecessarily harassed if she is required to attend the court at Banda. It was also pointed out that warrants had been ordered to be issued against the accused persons. I am of the view that the applicants may appear before the Magistrate concerned and after putting in appearance they may apply for bail and their bail application shall be heard and decided by the courts below expeditiously, preferably on the same day, taking into consideration the provisions of section 437 Cr.P.C. in respect of grant of bail to ladies, and thereafter the applicant no.1, who is an old lady, may move an application for exemption through counsel and if such an application is moved, the learned Magistrate shall pass suitable order on that application.

The application under section 482 Cr.P.C,. is finally disposed of with these observations.

Dated:16.11.2007

RPP.


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