ABHAIRAJ Vs. STATE OF U P AND ANOTHER

JUDGEMENT

(1.) The application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Complaint Case No.1458 of 2015, under Sections 498A, 323 I.P.C. and 3/4 D.P. Act, pending before Additional Chief Judicial Magistrate, Vth, Jaunpur as well as summoning order dated 9.5.2016.

(2.) Learned counsel for the applicant contends that the impugned order of summoning is bad on facts and law; that the applicant resides beyond the area of jurisdiction of Court concerned before which complaint was filed by opposite party no.2 and process were issued against applicant in the complaint case vide summoning order dated 9.5.2016; that upon filing of the complaint the Court took cognizance under Section 190(1)(a) Cr.P.C. and after recording statement of opposite party no.2 under Section 200 Cr.P.C., being not satisfied, proceeded to make enquiry under Section 202 Cr.P.C. and recorded statements of two witnesses under Section 202 Cr.P.C.; that after recording of above statements the Court has issued process against the applicant without complying with the provisions of Sections 177 & 178 Cr.P.C. and without directing any enquiry through police at Pratapgarh where the offence is alleged to have been committed; that the complaint has been made in order to harm and harass the applicant, who is husband of opposite party no.2 and has already filed petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights; that the impugned summoning order is revisable but since the applicant has challenged the entire proceedings, application need not be dismissed due to availability of remedy under Section 397 Cr.P.C. The learned counsel for applicant paid reliance on the case of Gokaran Lal and others Vs. State of U.P. and another, 2015 89 AllCriC 74, wherein quashing the summoning order, matter was remanded back to the Magistrate for afresh disposal, after compliance of provisions of Section 202 Cr.P.C.

(3.) Per Contra, learned A.G.A. submitted that the complaint was made in the matter of demand of dowry and cruelty for non-fulfilment of the same which is a continuing offence; that according to the averments made in the petition under Section 9 of Hindu Marriage Act filed by applicant the offence has been committed at both the places Pratapgarh and Jaunpur within the jurisdiction of Court; that the Magistrate concerned has followed the procedure prescribed by law and has himself made the required enquiry under Section 202 Cr.P.C. and upon being satisfied with on oath statements of complainant and witnesses under Sections 200 & 202 Cr.P.C., and materials on record upon finding prima-facie sufficient grounds for proceeding, has taken cognizance of the offence vide impugned order dated 7.5.2016 and issued process against the applicant for trial only under Sections 498A, 323 I.P.C. and 3/4 D.P. Act refusing to take cognizance and issue process for the offences u/s 504 & 506 I.P.C.; that only factual issues have been raised by the applicant, which may not be considered by this Court in proceedings under Section 482 Cr.P.C. and above issues, are to be decided upon evidence before the trial court; that on the facts of the case, it was not at all required to the Magistrate Concerned to direct an investigation to be made by a police officer; that the provisions of Section 202 Cr.P.C. have been duly complied by the Magistrate; that the facts of the case of Gokaran Lal and others Vs. State of U.P. and another relied by applicant are entirely different with regard to offence of snatching the chain and money and extending threats by the relatives who allegedly stolen the valuable documents also, where the Magistrate failed to comply with provisions of Section 202 Cr.P.C., as against the facts of this case regarding matrimonial dispute of cruelty for non-fulfilment of demand of dowry.