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Aun Mohammad Naqvi @ Siddan & Another v. State Of U.P. & Another - APPLICATION U/s 482 No. 7259 of 2005 [2006] RD-AH 17670 (13 October 2006)


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Criminal Misc. Application No. 7259 of 2005

Aun Mohammad  Naqvi  alias  Siddan and another


State of U.P.  and another

Hon'ble  R.K.Rastogi,J

This is an application  under section 482 Cr.P.C.   for quashing the order of the  Magistrate  dated 22.11.2004  whereby  the accused  had been summoned  under section 420 I.P.C. in  complaint case  no. 274 of 2004 pending before the  C.J.M. Varanasi.

The  facts relevant  for disposal of this  application  are that  the  complainant opposite party no.2 had filed  an application  under section 156(3) Cr.P.C.  against the accused applicants in the court of  C.J. M. Varanasi   against   Aun Mohammad ,  Shada Bano and Qadir Hussain with these allegations that  talks  of marriage of the complainant's son  S.J. Hussain were going on  and the accused applicants no. 1 and 2  offered  for marriage of  their  daughter  Shaihar   Bano alias  Shahana  with   S.J. Hussain. The complainant and his   wife    after seeing the girl  gave their consent on 25.1.04 for marriage    with their  son  S.J. Hussain  and also   gave  Gifts worth Rs.10,000/-  to Shaihar Bano. Thereafter  on 7.2.04 the accused applicants and  their another daughter  Shabana  and some witnesses  Nargish and  others  came  to the complainant's house and they saw   S.J. Hussain,  son of the  complainant. They  again came to  the house of the complainant  along with some more persons and then they  took one week's time.  Thereafter   they gave their consent for marriage  and   about Rs. 10,000/-  were again spent  in their reception   at the complainant's house  . Thereafter  on 15.2.2004  the accused   again came to the  house of the complainant  and gave consent for marriage   and the date 6.6.04 was fixed for marriage . Engagement ceremony   of the girl was performed at her house   on 30.4.04  and a sum of  Rs.  60,000/-  was spent  by the complainant. Thereafter  engagement ceremony  again  took place on 15.5.04 at the boy's house  and  about  a sum of Rs. 60,000/-  was spent  by the complainant . Thereafter the complainant  started preparation for marriage  and  got the invitation  cards  printed and  about a sum of Rs. 50,000/-  was spent  in all these  arrangements. On 28.5.04  the complainant received  a telephonic  message from  the accused applicant  that he would not  perform marriage of  his daughter  with the complainant 's son . When  complainant  told  him that  all the preparations had been made , he told  in reply that  the complainant may do  whatever he likes. The complainant thereafter  came to know that  the accused wanted to  perform marriage  of  their  daughter with some other boy. Then the complainant   asked the accused  to  give  him a sum of Rs. 2 lacs  spent by him. Then the accused  refused to   pay this amount . The complainant's prestige  and reputation was  badly affected, and in this way  the accused  committed  offences under section 420 and 500 I.P.C.  Therefore  the complainant filed an  application under section 156(3) Cr.P.C.  praying for  a direction to the  police  station concerned  for  registration and investigation of the case by the police.

At the initial stage  the learned Magistrate  had passed order  on 15.6.04 for investigation of the case  by the police . The police after investigation  submitted a final report in the case.  The complainant  filed a protest petition . On that protest  petition  an additional report was sought  from the police  station  concerned.  It was submitted on  13.6.04. Thereafter the learned Magistrate  passed order  on 22.11.2004  summoning  the  accused  applicants under section 420 I.P.C. Aggrieved with  that order the accused  have filed this application under section 482 Cr.P.C.

I have heard the learned counsel for the applicant and Mr. Rajendra  Kumar Rathor, learned counsel for the  opposite party no.2 as well as   learned A.G.A. for the State and perused the record.

It was submitted by the learned  counsel for the applicant  that  after submission  of  inquiry report  by the police in the matter  the proper procedure  for the Magistrate was to  consider the protest petition as a complaint and there was no justification for passing an order   summoning the accused  as a State case. Learned  counsel for the applicant  further  contended that the order passed by the  Magistrate was  completely  illegal and unjustified.

Learned counsel for the   complainant as  well as the learned A.G.A. for the State submitted  in reply that the order passed by the  Learned Magistrate correct and,  in support of their contentions they   relied upon  a Division Bench ruling of  this Court in  Prakhando and others Vs.  State of U.P. and another  [2001(43) ACC 1096] and  another ruling of  Hon'ble Apex Court in  Jagdish Ram Vs.  State  of  Rajasthan and another   [ 2004 Supreme Court Cases (Crl) 1294] in which  it has been held that  where is sufficient material  in the   case diary  against the  accused ,  they can be summoned .

I have carefully  gone through  both these rulings. It has been  laid down  in the case of  Prakhando( supra) as under:

" 10, The other course  open to the Magistrate  is that instead of  taking cognizance, he may  send the complaint/ application under Section 156(3)  Cr.P.C.  for police investigation . If this  course is  adopted, the police will have to investigate  the matter  as per the procedure  laid down in Section  157 onwards."

It is to be seen that  in the aforesaid case , the police after investigation ,  submitted a final report  alleging  that no case was made out  against  the accused persons. Aggrieved with that  final report the complainant  filed  a  protest petition  and on that  protest petition  the Magistrate  obtained a report from the police. On   receipt of the  additional report, the  Magistrate , after hearing the  complainant, passed  order on 22.11.04  in which  it has been stated  that the complainant  in his statement had corroborated  the prosecution case. The I.O. had recorded the  statement of  Atmaram and  Subhash who had stated  that the marriage had  not  been settled.  The same  facts were  also alleged by witnesses   Jakkhoo and Nargis. The learned Magistrate had  pointed out that   the I.O.  had not written the  parentage   of   Jakkhoo  and Nargis in the case  diary  and in the  same way  in the address of  Nargis and Jakkhoo the  police station had not been  mentioned. The  Magistrate had also pointed out that   if the statements  had actually been recorded , he would have  mentioned the parentage  of Nargis and  Jakkhoo. He was,  therefore , of the view that  the statements of  these  witnesses were  actually not recorded.  He, therefore, passed  order summoning the accused persons   under section 420 I.P.C.

The law on the point as  enunciated  in the above rulings  is that   whenever a final report is  submitted by the I.O.  in the case , the Court has to ascertain,  after  going through the case diary, as  to whether there is any  sufficient evidence for summoning the accused  or not. If there was  sufficient evidence  against the accused  in the case diary  and the I.O. had   erroneously submitted  a final report in the case,  then in that case  where there is  sufficient evidence in the Case Diary  to summon the accused,  the accused  can be summoned  on the basis of  that evidence  in the case diary  and that case  shall  proceed as a State case . But if there is  no  sufficient evidence in the case diary  for summoning the accused  persons then  the Magistrate  can  on its own  discretion  pass order for  registration of the  protest petition  as a complaint. But when  he reaches  a conclusion  that  there is no  sufficient evidence  against the  accused  and he is  of the view that  further investigation  by the police  is required, he may  direct the police   for   further investigation  into  the matter;  or in the alternative   if  the Magistrate  reaches    a conclusion  that  the evidence in the case diary  was not sufficient  to summon the accused persons  and the complainant  desires  to examine  some more  witnesses  to substantiate  his allegation, then in that case  the Magistrate  can treat the  protest petition as a complaint and in that case the summoning order  can be  passed only after recording the statement of   the complainant and  witnesses .

The position in the present  case is that  the learned Magistrate was of the view that  the police had not actually  investigated the case . He has  pointed out in his order dated 23.12.04 that    the I.O.  had no recorded   statement of  Jakkhoo and Nargis and had  recorded  their  fictitious  statements. Under these circumstances, when all other witnesses  from the side of the complainant  namely  Jakkhoo, Nargis,  Om Prakash , Atmaram   and  Subhash  had denied the   factum  of  settlement of  marriage  of the complainant's son  with the daughter of the accused  no. 1 and 2, there was no   sufficient evidence  in the case diary to  summon the accused . Under these circumstances,  the  proper course for the Magistrate was to send  back  the case to the I.O.   for  further  investigation  or in the alternative  he could  also pass an order for  registration  of the case  under section 190  Cr.P.C. and then to  take statements of complainant and other witnesses  under sections 200 and 202 Cr.P.C. He did not  do so,  and in view of  aforesaid ,the  order dated 23.12.04  passed by the learned Magistrate  summoning   the accused   can not be upheld  and the  same deserves to be  set aside.

The application under section 482  Cr.P.C. is, accordingly,  allowed. The  order dated 23.12.04 passed by   the learned  Magistrate   under section 420 I.P.C. in   complaint case  no. 274 of 2004 pending before the  C.J.M. Varanasi,  is hereby set aside. The learned Magistrate, after looking into the record, may  exercise its discretion  either by  sending  back the   case   to the police  for  further  investigation  or he  may, in the alternative , after taking cognizance under section 190 Cr.P.C. , proceed to take  additional statement of  the witnesses under section 200 and 202 Cr.P.C. and then he may pass a suitable  order in the matter.




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