This court allowed no offence to be disclosed based on prima facie evidence in a matrimonial dispute case. The quashing prayer was refused, but bail consideration was offered if the applicant surrendered within forty five days.
Prayer for quashing refused with forty five days to appear, apply for bail, and no coercive action during this period.
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Court No. - 75
Case :- APPLICATION U/S 482 No. - 44818 of 2018
Applicant :- Shoaib Ali Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rishabh Agarwal Counsel for Opposite Party :- G.A.,Mohd. Arif Siddiqui
Hon'ble Rajiv Gupta, J.
Heard learned counsel for the applicant, learned A.G.A. for the State, Sri Arif Siddiqui, learned counsel for opposite party no. 2, and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing of the summoning order and entire proceeding of Complaint Case No. 2193 of 2016, under Sections 406 I.P.C, Police Station - Mahila Thana, District - Firozabad, and the summoning order dated 31.05.2017, pending in the Court of Chief Judicial Magistrate, Firozabad.
As per the allegation made in the complaint and the statement of the victim recorded under Sections 200 & 202 Cr.P.C, it is alleged that the of O.P. No.2 was married to the applicant no. 1 on 03.11.2012 and at the time of marriage various articles which is the Stri-dhan of the opposite party no. 2 was given, which was entrusted to the applicant, however, even after repeated requests made by the opposite party no. 2 to return the same, the same has not been returned back by the applicant to opposite party no. 2 and has been illegally retained by him.
Learned counsel for the applicant further submitted that no such article has been given to her and only on account of
matrimonial dispute, the present proceedings have been initiated against him.
Per contra learned A.G.A as well as learned counsel for opposite party no. 2 supported the impugned order and have submitted that from the allegations made in the complaint as well as in the statements of the witnesses recorded under Section 200 & 202 Cr.P.C. prima-facie offence is clearly disclosed against the applicant and he has rightly been summoned under Section 406 I.P.C.
The contention of counsel for the applicant is that no offence against the applicant is disclosed and the present application has been instituted with a mala-fide intention for the purposes of harassment. He has also pointed out certain documents in support of his contention.
From the perusal of the material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.
At this stage, disputed question of fact cannot be considered, therefore, in view of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 , the prayer for quashing the entire proceeding order is refused.
However, it is directed that if the applicant appears and surrenders before the court below within forty five days from today and apply for bail, his prayer for bail shall be considered and decided in view of settled law laid down by this Court in the case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
For a period of forty five days from today or till the applicant surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 06.01.2020. Vinod.
3 issues framed by the court
Whether the application for quashing of the summoning order and proceedings under Section 406 IPC should be allowed as no offence is disclosed.
Whether disputed questions of fact regarding the alleged matrimonial dispute can be adjudicated by this court at this stage.
Whether bail directions can be issued subject to the appearance of the applicant within forty five days.
Colour shows how this judgement treated each authority
R.P. Kapur Vs. State of PunjabReferred¶13
R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866 · Who else cites this
State of Haryana Vs. Bhajan LalReferred¶13
State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426 · Who else cites this
State of Bihar Vs. P.P. SharmaReferred¶13
State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 · Who else cites this
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and anotherReferred¶13
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 · Who else cites this
Amrawati and another vs. State of U.P.Referred¶14
Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290
Lal Kamlendra Pratap Singh Vs. State of U.P.Referred¶14
Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC)
4 provisions across 2 enactments
Shoaib Ali
State of U.P.
Opposite Party No. 2
Rajiv Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
