Partly allowed

Kulsum and Others v. State of U.P. and Others

Allahabad HC19 Apr 2019A482/5053/2005

Case brief

AI extract

What is this about?

The High Court quashed proceedings against certain family members of the accused who were casually named in the FIR without specific allegations. However, the application to quash the charge-sheet and order against the accused husband and mother-in-law was dismissed with a direction to allow bail if they surrended within 30 days.

What did the court decide?

Quashing of proceedings against specific family members granted; rejection of quashing against husband and mother-in-law; 30-day stay on coercive action against them upon bail application.

Kulsum and Others Vs State of U.P. and Others — Quashing and FIR | Allahabad HC (2019)

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Court No. - 22

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Case :- APPLICATION U/S 482 No. - 5053 of 2005

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Applicant :- Kulsum And Others Opposite Party :- State Of U.P. And Others Counsel for Applicant :- B.A. Khan,Salman Ahmad Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Suresh Kumar Gupta,J .

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I have heard learned counsel for the applicants and learned A.G.A. for the State-opposite parties and perused the record.

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This application has been filed for quashing the charge-sheet no. 260 of 2004 dated 01.08.2004 arising out of Case Crime No. 588 of 2004 under Section 498-A & 323 I.P.C. read with Section 3/4 of D.P. Act, Police Station Bahedi, District Bareilly as well as impugned order dated 16.03.2005 passed by Learned Judicial Magistrate, Bahedi, District Bareilly.

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Briefly stated that opposite party no. 2, Smt. Reshma, has moved an application under Section 156(3) Cr.P.C. before the Judicial Magistrate, Bareilly in which she has made allegations against the applicants regarding cruelty and harassment with her. That after lodging the F.I.R., investigation was conducted by the Investigating Officer and charge-sheet dated 01.08.2004 was submitted against the applicants.

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Learned counsel for the applicants submitted that marriage in question was solemnized without taking any dowry. He further submitted that due to dispute between the family members, opposite party no. 2 refused to live with applicant no. 8 (husband) and ultimately on 03.08.2004 the applicant no. 8, Saidul Rehman, had given a chance to opposite party no. 2 to compromise the matter. He further submitted that after divorce entire belongings of opposite party no. 2 were returned to her as well as Rs. Thirty thousand was also given to the opposite party no. 2 as Mehar. He further submitted that only to harass the applicants, opposite party no. 2 had firstly filed an application under Section 125 Cr.P.C. on 17.12.2003 and during the course of this proceeding, compromise has been done between both the parties. He further submitted that opposite party no. 2 had filed another application dated 12.07.2004 under Section 156(3) Cr.P.C. in regard to alleged incident dated 20.09.2003 before the learned Magistrate. He further submitted that Investigating Officer of this case after investigating the case filed impugned charge-sheet without collecting credible and cogent evidence

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against the applicants. He further stated that after submission of the charge-sheet, cognizance had been taken by the learned Magistrate and summon as well as warrant were issued against the applicants but no notice ever served upon the applicants.

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Learned counsel for the applicants also contended that applicant no. 1, Kulsum (unmarried Nand), applicant no. 2, Smt. Zaibun, 3, Smt. Amina and 4 Smt. Kubra (all are married Nands of opposite party no. 2), and living separately and applicant no. 5, Smt. Jamilan (mother-in-law) is an old aged lady and applicant no. 6, Yunus and 7, Zulfiquar (both are nephew of applicant no. 8) and sons of applicant no. 2 and applicant no. 8, Saidul Rehman, is husband of opposite party no. 2. It is also contended by learned counsel for the applicants that no such alleged incident had been taken place and all the allegations levelled against the applicants are false and fabricated and the impugned charge-sheet was submitted without ascertaining correct facts. So it is requested to quash the charge-sheet as well as impugned order dated 16.03.2005 passed by Judicial Magistrate, Bareilly for issuance of non-bailable warrant and proceedings under Sections 82 and 83 Cr.P.C against the applicants.

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Opposite parties had filed their counter affidavit in which opposite party no. 2 had clearly stated that this is the wrong fact that applicant no. 8 had given divorce to opposite party no. 2 and they are still husband and wife and living separately due to family dispute. Opposite party no. 2 is always ready to discharge his matrimonial duties towards her husband and her in-laws. Counter affidavit clearly denied that she has ever entered into any compromise and also stated that she has never entered into any agreement dated 15.06.2004 or made any signature on the same as alleged by the applicants. It is also contended that there is no illegality and perversity in the impugned charge-sheet and order dated 16.04.2005 passed by the Magistrate, so the present application filed by the applicants is nothing only to misuse the provision contained under Section 482 Cr.P.C. Hence, this application is liable to be dismissed.

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After having very carefully examined, I find that so far as applicant nos. 5 & 8, are concerned, there is no justification for quashing the aforesaid charge-sheet as well as impugned order against applicant nos. 5 & 8.

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Learned counsel for the applicants submitted that applicant nos. 1, Kulsum (Nand), 2, Smt. Zaibun (Nand), 3-Smt. Amina (Nand), 4-Smt. Kubra (Nand), 6, Yunus (Nephew) and 7, Zulfiquar (nephew) are the family members of applicant no. 8 and the allegation levelled against them are wholly vague and no specific allegation has been levelled against them. Learned

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counsel for the applicants has placed reliance on the judgment of the Apex Court in the case of Geeta Mehrotra Vs. State of U.P. and others reported in 2012 (10) ADJ 464 wherein it is held that "where large number of family members had been included in F.I.R. by casually mentioning their names and contents did not disclose their active involvement, cognizance of matter against them would not be justified".

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Learned A.G.A. vehemently opposed the prayer of the application and contended that prima facie case against all the applicants are made out.

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Perusal of the F.I.R. shows that there is no specific allegations or active involvement of applicant nos. 1, Kuslum (Nand), 2, Smt. Zaibun (Nand), 3-Smt. Amina (Nand), 4-Smt. Kubra (Nand), 6, Yunus (Nephew) and 7, Zulfiquar (nephew) in the said incident. As per judgement of Hon'ble Supreme Court in Geeta Malhotra and Another (supra) proceedings against applicant nos. 1, Kuslum (Nand), 2, Smt. Zaibun (Nand), 3- Smt. Amina (Nand), 4-Smt. Kubra (Nand), 6, Yunus (Nephew) and 7, Zulfiquar (nephew) are hereby quashed, but, as reasons stated above, prayer for quashment of aforesaid charge-sheet as well as impugned order against the applicant nos. 5 & 8, is refused.

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However, it is directed that in case, applicant nos. 5 & 8 appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be decided expeditiously preferably on same day in accordance with law after hearing all the parties concerned. For a period of 30 days from today, no coercive action shall be taken against them. However, in case, applicant nos. 5 & 8 do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid observations/directions, the application under Section 482 Cr.P.C. is disposed off accordingly.

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Order Date :- 19.4.2019

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Vibha Singh

Kulsum and Others v. State of U.P. and Others

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Kulsum and Others v. State of U.P. and Others

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