/7795/2018 of MOHAMMAD AYUB RIZVI and OTHERS Vs SMT. SALMA KHAN and ANOTHER on 11 September 2023

1. Heard Sri Jageshwari Prasad Mathur, learned counsel for theapplicants, Sri Sayyed Farooq Ahmad, learned counsel for the oppositeparty no.2, Sri Aniruddh Kumar Singh, learned A.G.A.-I and Sri SanjayKumar Yadav, learned A.G.A. for the State and perused the materialplaced on record.

2. Instant application has been filed with the prayer to stay the entireproceedings in Complaint Case No.942/18 (Smt. Salma Khan Vs.Mohammad Aizaz), under Section 498-A, 323 I.P.C. and Section 4 D.P.Act by the court of Civil Judge (Junior Division) FTC/JudicialMagistrate, Unnao alongwith the summoning order dated 13.9.2018.

3. Factual matrix of the case is that on 11.3.2012, the opposite partyno.1 got married with Aayaz @ Babu son of applicant no.1 at Lucknow,and as Aayaz was working at Saudi Arabia, therefore, the opposite partyno.1 is willing to live with him at Saudi Arabia. When Aayaz, whileleaving the opposite party no.1 in India, went to Saudi Arabia on20.4.2015 then she started creating trouble in the entire family and wentto live separately at Balaganj and then to her parents' home at Unnao.Thereafter, a complaint was filed on 31.1.2018. Further an F.I.R. was alsolodged on 16.2.2018. The trial court passed the order on 13.9.2018 andsummoned the present applicant under Section 498A, 323 I.P.C. and Section 4 of the Dowry Prohibition Act which is under challenge in theinstant application.

4. Contention of the learned counsel for the applicants is that twocriminal proceedings were initiated simultaneously - one by way oflodging F.I.R. on 16.2.2018 and another by way of instituting a complainton 13.1.2018 wherein the present applicant has been summoned. Hesubmits that the trial court has violated mandate of Section 202 (1) ofCr.P.C. He further added that admittedly, the applicants reside outside theterritorial jurisdiction of the Magistrate concerned as the applicants resideat Lucknow and summons have been issued by the trial court at Unnao.He added that neither any enquiry nor any investigation has been doneprior to proceeding in the matter, which is apparent from the order itself.Adding his arguments, he further submits that there is also violation ofSection 210 of Cr.P.C. as once the Magistrate is proceeding in thecomplaint case and, during the course of hearing, if it comes in theknowledge of the Magistrate that an investigation by the police is inprogress in relation to the offence, which is the subject matter of enquiryor trial by him, the Magistrate shall stay proceedings of such enquiry ortrial and shall call for a report in the matter from the police officerconducting the investigation. It is further prayed that if a report is madeunder Section 173 Cr.P.C., such Magistrate shall enquire into or trytogether the complaint case and the case arising out of the police reportas if both the cases were instituted on the police report. He added that sofar as the present case is concerned, the F.I.R. was also lodged on16.2.2018 for the same offence and without calling any report from theInvestigating officer, the trial court proceeded in the complaint casewhich is against the provisions of Section 210 Cr.P.C. He further arguedthat the summoning order dated 13.9.2018 is unreasoned and have beenpassed in a cavalier manner. He submits that it has been a settled law thatwhile proceeding in the matter arising out of complaint case if aMagistrate is of the view that summon be issued to the accused persons, the reason must be recorded which is missing in the impugned orderdated 13.9.2018 and, in this view also, the order dated 13.9.2018 is notsustainable.

5. Further contention of the learned counsel for the applicants is thatthe applicants are in-laws, husband and brother in law of the oppositeparty no.1. There are general allegations against the applicants forcommitting torture for the dowry though the applicants are residingseparately and since long back the opposite party no.2 is not residingwith them and, therefore, the question does not arise for demand ofdowry or torture of the opposite party no.2. He added that after thehusband of the opposite party no.2 alone went to Saudi Arabia, she isannoyed as she was not taken by him and, therefore, the applicants beingthe soft target are being harassed as criminal proceedings have beeninitiated against them.

6. Learned counsel for the applicants placed reliance on theJudgments of the Apex Court rendered in the cases of Geeta MehrotraVs. State of U.P. and others, 2012 (10) ADJ 464 and KahkashanKausar @ Sonam and others Vs. State of Bihar and others, (2022) 6SCC 599 and submits that the case of the applicants are fully coveredunder the ratio of the judgments.

7. Concluding his arguments, he submits that the dispute, if any, maybe in between the husband and wife and the present applicants being in-laws, have nothing to do with any kind of offence as has been mentionedin the complaint by the opposite party no.2. He submits that there is nocogent piece of evidence against the applicants so as to connect them incommitting offence under which the present applicants have beensummoned by way of impugned order dated 13.9.2018. Therefore, thesubmission is that the order dated 13.9.2018 may be set aside andcriminal proceedings against the applicants may be dropped.

8. Per contra, learned counsel for the State and the opposite partyno.2 vehemently opposed the contention aforesaid and has categoricallyreplied the contention raised by the learned counsel for the applicants andsubmit that so far as the question with respect to violation of mandate ofSection 202 Cr.P.C. is concerned, the Magistrate has recorded thestatements of complainant and the witness, wherein the witness, in hisstatement, has stated the name of the present applicants, which clearlyshows that the applicants are the persons, who have committed theoffence and, therefore, the procedure prescribed under Section 202Cr.P.C. has not been violated.

9. It is submitted that the applicants are admittedly the in-laws but theopposite party no.2 is residing in the same house where the presentapplicants are living and, therefore, merely saying that the opposite partyno.2 is residing at Unnao, is not correct. Further submitted that there isno erroneousness in the summoning order as the fact as well as thereasons have very well been mentioned in the same, which are apparentfrom the bare perusal of the order dated 13.9.2018. He added that truth isbeing belied by the applicants though the complaint is supported by thestatement of the complainant under Section 200 and the statement ofwitness under Section 202 of Cr.P.C. which is the prima facie statutoryrequirement for proceeding in the matter and the applicants would haveall opportunity to say before the trial court, therefore, submission is thatthere is no perversity or unlawfulness in the order passed by the trialcourt.

10. Having heard learned counsel for the parties and after perusal ofthe records, it transpires that a complaint was instituted by the oppositeparty no.2 on 31.1.2018, whereby, it has been stated that the applicantshave tortured the opposite party no.2 for dowry and, on the other hand,an F.I.R. was also lodged on 16.2.2018, with same allegations.

11. When this court examined the contention raised by the learnedcounsels for the applicants that whether there is any violation of mandateof Section 210 of Cr.P.C., it reveals from the record that after lodging thecomplaint on 31.1.2018, an F.I.R. was lodged at 16.2.2018, for the sameincident, whereas the procedure prescribed under Section 210 of Cr.P.C.is very specific that if the case is instituted otherwise than the policereport and it appears to the Magistrate during the course of enquiry ortrial that an investigation by the police is in progress which is the subjectmatter of the enquiry or trial held by him, the Magistrate shall stayproceeding of such enquiry or trial and call for a report from the policeconducting such investigation but so far as the present case is concerned,the learned trial court ignoring the provisions of Section 210 Cr.P.C.,proceeded in the matter and has summoned the present applicants underSections 498A, 323 I.P.C. and Section 4 of the Dowry Prohibition Act.

12. Further, so far the plea is raised that the provisions of Section 202(1) Cr.P.C. has been violated, it reveals from the record that the statementof the complainant and the witness under Sections 200 and 202 Cr.P.C.,respectively, have been recorded, wherein there is no whisper regardingthe genuineness of the applicants/accused persons and their address asthe provision prescribed under Section 202 (1) clearly speaks that if theproposed accused are living outside territorial jurisdiction of Magistrateconcerned, he shall make an enquiry or investigation though if thestatement of the witnesses or complainant are enough to show thegenuineness of such proposed accused persons, no further investigationor enquiry is required.

13. In case of Abhijit Pawar Vs. Hemant Madhukar Nimbalkar andanother, (2017) 3 SCC 528,it has been held that requirement ofconducting enquiry or directing investigation before issuing process isnot an empty formality and, therefore, the Magistrate or court is to followthe 'enquiry' other than the trial under the Code, though it is not prescribed in Section 202 Cr.P.C. that what would be specific mode ormanner of enquiry.

14. The Apex Court in the case of Anil Kumar and Others VersusM.K.Aiyappa and Another, reported in (2013)10 Supreme CourtCases 705 in paragraph no. 11 of the said Judgment held as under :- "11. The scope of Section 156(3) CrPC came up for considerationbefore this Court in several cases. This Court in Maksud Saiyedcase examined the requirement of the application of mind by theMagistrate before exercising jurisdiction under Section 156(3) andheld that where jurisdiction is exercised on a complaint filed interms of Section 156(3) or Section 200 CrPC, the Magistrate isrequired to apply his mind, in such a case, the SpecialJudge/Magistrate cannot refer the matter under Section 156(3)against a public servant without a valid sanction order. Theapplication of mind by the Magistrate should be reflected in theorder. The mere statement that he has gone through the complaint,documents and heard the complainant, as such, as reflected in theorder, will not be sufficient. After going through the complaint,documents and hearing the complainant, what weighed with theMagistrate to order investigation under Section 156(3) CrPC,should be reflected in the order, though a detailed expression of hisviews is neither required nor warranted. We have already extractedthe order passed by the learned Special Judge which, in our view,has stated no reasons for ordering investigation".

15. Hon'ble Apex Court has held that the Magistrate is required toapply it's mind and the application of mind by the Magistrate must bereflected in the order and the mere statement that he has gone throughthe complaint,documents and heard the complainant, will not besufficient.

16. Further the Hon'ble Supreme Court in case of MaksudSaiyed Versus State of Gujarat and Others, reported in (2008)5Supreme Court Cases, 668 has held in paragraph no. 13 which isquoted hereinunder :- "13. Where a jurisdiction is exercised on a complaint petitionfiled in terms of Section 156(3) or Section 200 of the Code ofCriminal Procedure, the Magistrate is required to apply hismind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the ManagingDirector or the Directors of the Company when the accused isthe Company. The learned Magistrate failed to pose untohimself the correct question viz. as to whether the complaintpetition, even if given face value and taken to be correct in itsentirety, would lead to the conclusion that the respondentsherein were personally liable for any offence. The Bank is abody corporate. Vicarious liability of the Managing Directorand Director would arise provided any provision exists in thatbehalf in the statute. Statutes indisputably must containprovision fixing such vicarious liabilities. Even for the saidpurpose, it is obligatory on the part of the complainant to makerequisite allegations which would attract the provisionsconstituting vicarious liability."

17. Now, it emerges that reasons essentially be recorded in thesummoning order, if the matter is arising out of complaint case.Apparently from perusal of the impugned summoning order, it transpiresthat the reasons have not been recorded and, therefore, the same vitiatesin the eyes of law.

18. In view of the aforesaid submissions and discussions, this Court isof the considered opinion that the impugned summoning order dated13.9.2018, passed by the trial court is against the settled proposition oflaw.

19. Consequently, impugned summoning order dated 13.9.2018 passedby the trial court is hereby set aside.

20. The matter is remitted back to the trial court concerned to passfresh order within a period of 45 days from the date of this order, inaccordance with law.

21. The office shall communicate this order to the trial court forthwith.

22. With the aforesaid observations, instant application is herebyallowed.

Order Date :- 11.9.2023

Ram Murti