AFSAR ALI & ORS Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS petition under Section 482 Cr.P.C. has been filed with the prayer to quash the summoning order dated 22 -08 -2005 passed by Additional Judicial Magistrate, Rudrapur in criminal case no. 387 of 2005 Mohd. Hanif vs. Afsar Ali & others, under Sections 147, 148, 149, 452, 324, 504 & 506 IPC, PS. Gadarpur, district Udham Singh Nagar. 2. Brief facts giving rise to this case are that the daughter of the applicant no. 1 was married to son of opposite party no. 2 in the month of December, 2004. Respondent no. 2 was not satisfied with the articles given at the time of marriage and he demanded dowry from the applicant no. 1. Due to non -fulfillment of demand of dowry the opposite party no. 2 assaulted the daughter of applicant no. 1 and turned her out from her matrimonial house on 22.12.2004. Thereafter, panchayat was called but the respondent no. and his family members never agreed to keep and maintain the daughter of applicant no. 1. On 31.01.2005 the daughter of the applicant no. 1 filed a complaint case no. 400 of 2005 Smt. Firdos vs. Mohd Ali before the Chief Judicial Magistrate, Rampur. On 22.03.2005 after recording the statement of the complainant and the witnesses the court issued summoning order and directed them to appear on 04.05.2005 to face the trial under Section 498A IPC and Section 3/4 Dowry Prohibition Act. The daughter of the applicant no. 1 filed a misc, case no. 356 of 2005 before the Additional C.J.M., Rampur which was registered as Smt. Firdos vs. Mohd. Ali under Section 125 Cr.P.C. for maintenance. The said application was allowed on 13.06.2005. The opposite party no. 2 has got malice against the applicants who decided to harass the family members/ relatives and lodged a false complaint case before the Additional Chief Judicial Magistrate, Udham Singh Nagar being criminal case no. 387 of 2005 Mohd. Hanif vs. Afsar Ali whereby opposite party no. 2 has falsely implicated the father and brother of Smt. Firdos and their relatives. There is no independent witness to support the prosecution case and only the statements under sections 200 & 202 Cr.P.C. of the interested witnesses have been recorded. The said complaint has been filed only for the purpose of harassing the applicants. The Talak' has taken place between the husband and wife. Learned Additional Chief Judicial Magistrate, Udham Singh Nagar has passed the summoning order on 22 -08 -2005 and directed the applicants to appear before the court to face the trial. There is no prima -facie case against the applicants.

(2.) LEARNED counsel for the applicants contended that since no prima -facie case is made out against the applicants, this court should interfere under section 482 Cr.P.C. The opposite party no. 2 has lodged the case as counter -blast case no. 356 of 2005 Smt. Firdos vs. Mohd. AH and also against the maintenance case. There is no specific allegation against the applicants and the applicants have no motive to assault the opposite party no. 2. The allegations in the complaint are totally false and frivolous. The same has been filed only with the intention to harass the applicants. No prima -facie case for the said offences is made out against the applicants. Learned magistrate has passed the summoning order without application of mind. The complaint against them have been filed only to save themselves from proceedings initiated under section 498A IPC read with section 3/4 Dowry Prohibition Act and to pressurize them to withdraw those cases.

(3.) LEARNED Brief Holder for the State on the other hand, has strongly objected to the move of the applicants and suggested that aforesaid rulings do not help the applicants in any way. It cannot be said at this stage that there is no chance of conviction of the applicants. The role may be assigned to only one person and the others being relatives, is no ground to interfere under Section 482 Cr.P.C. He has submitted that the enmity or bitter relation is a double edged weapon. Both the contingencies are possible. If any person can be falsely implicated, there is also possibility that the other party may browbeat, harass, pressurize and use criminal force on the first party. Both the situations are possible which can only be looked into by the learned trial court.