# Mohd. Ayub Rizvi & Ors v. Smt. Salma Khan & Anr

- **Citation:** (2023) 9 ILRA 556
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-11
- **Case number:** Application U/S 482. No. 7795 of 2018
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ayub-rizvi-ors-v-smt-salma-khan-anr-50847
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860
-
Sections
498-A
&
323
-
Dowry
Prohibition Act, 1961 - Section4 - Code
of Criminal Procedure, 1973 - Section
173 - Summoning order - Quashing of -
Opposite Party No. 2 filed complaint on
31.01.2018,
later
lodged
FIR
on
16.02.2018,
both
alleging
dowry
harassment by applicants - Trial court,
in violation of Section 210 Cr.P.C.,
proceeded to summon applicants under
above
mentioned
Sections
without
staying proceedings or seeking a police
report - St.ments of complainant and
witness recorded under Sections 200
and
202
Cr.P.C.
do
not
disclose
genuineness or address of applicants,
resulting in non-compliance of Section
202(1) Cr.P.C. - Absence of reasons in
summoning order vitiates the same in
eyes of law, thus impugned order, set
aside - Matter remitted back. (Para 10,
11, 12, 17)

Application allowed. (E-13)

List of Cases cited:

## Text

556 INDIAN LAW REPORTS ALLAHABAD SERIES
Bachan Karu (Dead) does not deal with
the facts akin to the facts of the present
case and therefore is distinguishable.

25. It was also contented on behalf of
the petitioner that the proceedings before
the prescribed authority were without
jurisdiction inasmuch as the tenancy was
created prior to coming into force the
provisions of Public Premises and Eviction
Act, 1971. In support of his contention is
he relied upon the judgment of the Supreme
Court in the case of Suhas H. Pophale vs
Oriental insurance Co Ltd and its estate
officer (2014) 4 SCC 657. A perusal of the
impugned judgement discloses that the said
issue was never raised either before the
prescribed authority or either in the appeal
before the District Judge. The question as
to when the tenancy was created or when
the petitioner or his predecessor in interest
became a tenant, is not merely a question of
law but a mixed question of fact and law.
The petitioner having not raised this
question before either the Prescribed
authority
or
the
appellate
Court
is
precluded for raising the same for the first
time in the present writ proceedings. It is
further noticed that the appeal preferred by
the petitioner has also been dismissed on
the ground that he did not have any right to
file the appeal against the order of the
prescribed authority before the District
Judge. No leave to appeal was sought nor
granted by the District Judge. No ground
has been taken in the present writ petition
to assailed the said findings, nor any
arguments has been advanced in this regard
by the counsel for the petitioner, and
accordingly no interference is required with
the said findings.

26. From the perusal of the sale letter
it is clear that no tenancy rights were
transferred to the petitioner and merely the
business in the name and style of M/S A.
James and Company was transferred
along with the goodwill stock in trade,
furniture etc. There is a clear stipulation
in the said sale letter that the petitioner
would be free to obtain lease from the
owners. It is not disputed that petitioner
never informed or took consent from the
respondent-bank prior to entering into the
tenanted
premises
and
merely
by
unauthorisedly occupying the tenanted
premises did not ipso facto become the
tenant
and
certainly
not
the
legal
representatives of the original tenant and
accordingly did not have any locus standi
to challenge the order of the prescribed
authority in appeal before the District
Judge. No arguments were advanced by
the Counsel the petitioner in this regard,
and
therefore
the
findings
by
the
appellate
court
do
not
merit
any
interference.

27. In light of the above, this Court
does not find any ground to interfere with
the concurrent findings of fact recorded by
both the courts below. The writ petition is
devoid of merits and is accordingly
dismissed.
----------
(2023) 9 ILRA 556
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 11.09.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 7795 of 2018

Mohd. Ayub Rizvi & Ors. ...Applicants
Versus
Smt. Salma Khan & Anr. ...Opposite Parties

Counsel for the Applicants:
Jageshwari Prasad Mathur
9 All. Mohd. Ayub Rizvi & Ors. Vs. Smt. Salma Khan & Anr.
557
Counsel for the Opposite Parties:
G.A., Manish Singh Chauhan, Sayyed
Farooq Ahmad

Criminal Law - Indian Penal Code, 1860
-
Sections
498-A
&
323
-
Dowry
Prohibition Act, 1961 - Section4 - Code
of Criminal Procedure, 1973 - Section
173 - Summoning order - Quashing of -
Opposite Party No. 2 filed complaint on
31.01.2018,
later
lodged
FIR
on
16.02.2018,
both
alleging
dowry
harassment by applicants - Trial court,
in violation of Section 210 Cr.P.C.,
proceeded to summon applicants under
above
mentioned
Sections
without
staying proceedings or seeking a police
report - St.ments of complainant and
witness recorded under Sections 200
and
202
Cr.P.C.
do
not
disclose
genuineness or address of applicants,
resulting in non-compliance of Section
202(1) Cr.P.C. - Absence of reasons in
summoning order vitiates the same in
eyes of law, thus impugned order, set
aside - Matter remitted back. (Para 10,
11, 12, 17)

Application allowed. (E-13)

List of Cases cited:

1. Geeta Mehrotra Vs St. of U.P. & ors., 2012
(10) ADJ 464

2. Kahkashan Kausar @ Sonam & ors. Vs St. of
Bihar & ors., (2022) 6 SCC 599

3. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& anr., (2017) 3 SCC 528

4. Anil Kumar & ors. Vs M.K.Aiyappa & anr.,
reported in (2013)10 Supreme Court Cases 705
(Para 11)

5. Maksud Saiyed Vs St. of Gujarat & ors.,
reported in (2008)5 Supreme Court Cases, 668
(Para 13)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1 . Heard Sri Jageshwari Prasad
Mathur, learned counsel for the applicants,
Sri Sayyed Farooq Ahmad, learned counsel
for the opposite party no.2, Sri Aniruddh
Kumar Singh, learned A.G.A.-I and Sri
Sanjay Kumar Yadav, learned A.G.A. for
the State and perused the material placed
on record.

2. Instant application has been filed
with the prayer to stay the entire
proceedings 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/Judicial
Magistrate,
Unnao
alongwith
the
summoning order dated 13.9.2018.

3. Factual matrix of the case is that on
11.3.2012, the opposite party no.1 got
married with Aayaz @ Babu son of
applicant no.1 at Lucknow, and as Aayaz
was working at Saudi Arabia, therefore, the
opposite party no.1 is willing to live with
him at Saudi Arabia. When Aayaz, while
leaving the opposite party no.1 in India,
went to Saudi Arabia on 20.4.2015 then she
started creating trouble in the entire family
and went to 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 also
lodged on 16.2.2018. The trial court passed
the order on 13.9.2018 and summoned the
present applicant under Section 498A, 323
I.P.C. and Section 4 of the Dowry
Prohibition Act which is under challenge in
the instant application.

4. Contention of the learned counsel
for the applicants is that two criminal
proceedings were initiated simultaneously -
one by way of lodging F.I.R. on 16.2.2018
and another by way of instituting a
558 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint on 13.1.2018 wherein the present
applicant has been summoned. He submits
that the trial court has violated mandate of
Section 202 (1) of Cr.P.C. He further added
that admittedly, the applicants reside
outside the territorial jurisdiction of the
Magistrate concerned as the applicants
reside at Lucknow and summons have been
issued by the trial court at Unnao. He added
that
neither
any
enquiry
nor
any
investigation has been done prior to
proceeding in the matter, which is apparent
from
the
order
itself.
Adding
his
arguments, he further submits that there is
also violation of Section 210 of Cr.P.C. as
once the Magistrate is proceeding in the
complaint case and, during the course of
hearing, if it comes in the knowledge of the
Magistrate that an investigation by the
police is in progress in relation to the
offence, which is the subject matter of
enquiry or trial by him, the Magistrate shall
stay proceedings of such enquiry or trial
and shall call for a report in the matter from
the
police
officer
conducting
the
investigation. It is further prayed that if a
report is made under Section 173 Cr.P.C.,
such Magistrate shall enquire into or try
together the complaint case and the case
arising out of the police report as if both the
cases were instituted on the police report.
He added that so far as the present case is
concerned, the F.I.R. was also lodged on
16.2.2018 for the same offence and without
calling any report from the Investigating
officer, the trial court proceeded in the
complaint case which is against the
provisions of Section 210 Cr.P.C. He
further argued that the summoning order
dated 13.9.2018 is unreasoned and have
been passed in a cavalier manner. He
submits that it has been a settled law that
while proceeding in the matter arising out
of complaint case if a Magistrate is of the
view that summon be issued to the accused
persons, the reason must be recorded which
is missing in the impugned order dated
13.9.2018 and, in this view also, the order
dated 13.9.2018 is not sustainable.

5. Further contention of the learned
counsel for the applicants is that the
applicants are in-laws, husband and brother
in law of the opposite party no.1. There are
general allegations against the applicants
for committing torture for the dowry
though
the
applicants
are
residing
separately and since long back the opposite
party no.2 is not residing with them and,
therefore, the question does not arise for
demand of dowry or torture of the opposite
party no.2. He added that after the husband
of the opposite party no.2 alone went to
Saudi Arabia, she is annoyed as she was
not taken by him and, therefore, the
applicants being the soft target are being
harassed as criminal proceedings have been
initiated against them.

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

7. Concluding his arguments, he
submits that the dispute, if any, may be 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 mentioned in the complaint by the
opposite party no.2. He submits that there
is no cogent piece of evidence against the
applicants so as to connect them in
committing offence under which the
9 All. Mohd. Ayub Rizvi & Ors. Vs. Smt. Salma Khan & Anr.
559
present applicants have been summoned by
way of impugned order dated 13.9.2018.
Therefore, the submission is that the order
dated 13.9.2018 may be set aside and
criminal proceedings against the applicants
may be dropped.

8. Per contra, learned counsel for the
State
and
the
opposite
party
no.2
vehemently
opposed
the
contention
aforesaid and has categorically replied the
contention raised by the learned counsel for
the applicants and submit that so far as the
question with respect to violation of
mandate
of
Section
202
Cr.P.C.
is
concerned, the Magistrate has recorded the
statements of complainant and the witness,
wherein the witness, in his statement, has
stated the name of the present applicants,
which clearly shows that the applicants are
the persons, who have committed the
offence and, therefore, the procedure
prescribed under Section 202 Cr.P.C. has
not been violated.

9. It is submitted that the applicants
are admittedly the in-laws but the opposite
party no.2 is residing in the same house
where the present applicants are living and,
therefore, merely saying that the opposite
party no.2 is residing at Unnao, is not
correct. Further submitted that there is no
erroneousness in the summoning order as
the fact as well as the reasons have very
well been mentioned in the same, which are
apparent from the bare perusal of the order
dated 13.9.2018. He added that truth is
being belied by the applicants though the
complaint is supported by the statement of
the complainant under Section 200 and the
statement of witness under Section 202 of
Cr.P.C. which is the prima facie statutory
requirement for proceeding in the matter
and
the
applicants
would
have
all
opportunity to say before the trial court,
therefore, submission is that there is no
perversity or unlawfulness in the order
passed by the trial court.

10. Having heard learned counsel for
the parties and after perusal of the records,
it transpires that a complaint was instituted
by the opposite party no.2 on 31.1.2018,
whereby, it has been stated that the
applicants have 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 learned counsels
for the applicants that whether there is any
violation of mandate of Section 210 of
Cr.P.C., it reveals from the record that after
lodging the complaint on 31.1.2018, an
F.I.R. was lodged at 16.2.2018, for the
same incident, whereas the procedure
prescribed under Section 210 of Cr.P.C. is
very specific that if the case is instituted
otherwise than the police report and it
appears to the Magistrate during the course
of enquiry or trial that an investigation by
the police is in progress which is the
subject matter of the enquiry or trial held
by
him,
the
Magistrate
shall
stay
proceeding of such enquiry or trial and call
for a report from the police conducting
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 under
Sections 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 statement of the
complainant and the witness under Sections
560 INDIAN LAW REPORTS ALLAHABAD SERIES
200 and 202 Cr.P.C., respectively, have
been recorded, wherein there is no whisper
regarding
the
genuineness
of
the
applicants/accused
persons
and
their
address as the provision prescribed under
Section 202 (1) clearly speaks that if the
proposed
accused
are
living
outside
territorial
jurisdiction
of
Magistrate
concerned, he shall make an enquiry or
investigation though if the statement of the
witnesses or complainant are enough to
show the genuineness of such proposed
accused persons, no further investigation or
enquiry is required.

13. In case of Abhijit Pawar Vs.
Hemant Madhukar Nimbalkar and another,
(2017) 3 SCC 528, it has been held that
requirement of conducting enquiry or
directing
investigation
before
issuing
process is not an empty formality and,
therefore, the Magistrate or court is to
follow the '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 or manner of enquiry.

14. The Apex Court in the case of
Anil
Kumar
and
Others
Versus
M.K.Aiyappa and Another, reported in
(2013)10 Supreme Court Cases 705 in
paragraph no. 11 of the said Judgment held
as under :-

"11. The scope of Section 156(3)
CrPC came up for consideration before this
Court in several cases. This Court in
Maksud
Saiyed
case
examined
the
requirement of the application of mind by
the
Magistrate
before
exercising
jurisdiction under Section 156(3) and held
that where jurisdiction is exercised on a
complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case,
the Special Judge/Magistrate cannot refer
the matter under Section 156(3) against a
public servant without a valid sanction
order. The application of mind by the
Magistrate should be reflected in the order.
The mere statement that he has gone
through the complaint, documents and
heard the complainant, as such, as reflected
in the order, will not be sufficient. After
going through the complaint, documents
and hearing the complainant, what weighed
with the Magistrate to order investigation
under Section 156(3) CrPC, should be
reflected in the order, though a detailed
expression of his views is neither required
nor warranted. We have already extracted
the 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 to apply it's mind
and the application of mind by the
Magistrate must be reflected in the order
and the mere statement that he has gone
through the complaint,documents and heard
the complainant, will not be sufficient.

16. Further the Hon'ble Supreme
Court in case of Maksud Saiyed Versus
State of Gujarat and Others, reported in
(2008)5 Supreme Court Cases, 668 has
held in paragraph no. 13 which is quoted
hereinunder :-

"13. Where a jurisdiction is
exercised on a complaint petition filed in
terms of Section 156(3) or Section 200 of
the Code of Criminal Procedure, the
Magistrate is required to apply his mind.
The Penal Code does not contain any
provision for attaching vicarious liability
on the part of the Managing Director or the
Directors of the Company when the
accused is the Company. The learned
9 All. Ramjit Singh Vs. Directorate of Enforcement Alld. Sub-Zonal Office
561
Magistrate failed to pose unto himself the
correct question viz. as to whether the
complaint petition, even if given face value
and taken to be correct in its entirety,
would lead to the conclusion that the
respondents herein were personally liable
for any offence. The Bank is a body
corporate.
Vicarious
liability
of
the
Managing Director and Director would
arise provided any provision exists in that
behalf in the statute. Statutes indisputably
must
contain
provision
fixing
such
vicarious liabilities. Even for the said
purpose, it is obligatory on the part of the
complainant to make requisite allegations
which
would
attract
the
provisions
constituting vicarious liability."

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

18. In view of the aforesaid
submissions and discussions, this Court is
of
the
considered
opinion
that
the
impugned
summoning
order
dated
13.9.2018, passed by the trial court is
against the settled proposition of law.

19.

Consequently,
impugned
summoning order dated 13.9.2018 passed
by the trial court is hereby set aside.

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

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

22. With the aforesaid observations,
instant application is hereby allowed.
----------
(2023) 9 ILRA 561
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.09.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application No. 1518
of 2023
(Under Section 438 Cr.P.C.)
And other cases

Ramji Singh ...Applicant
Versus
Directorate of Enforcement Alld. SubZonal Office ...Respondent

Counsel for the Applicant:
Purnendu Chakravarty, Anuj Taandon, Rishabh
Chauhan

Counsel for the Respondent:
Rohit Tripathi

A. Criminal Law - Prevention of Money
Laundering Act, 2002 - Section 45 -
Anticipatory Bail - Restrictions on bail
under
Section
45
not
applicable
to
Constitutional Courts due to Section 44(2)
- Special powers of High Courts under
Section 439 Cr.P.C. preserved.

B. Criminal Law - Anticipatory Bail -
Economic Offences - Allegations of illegal
coal diversion - No proceeds of crime
recovered from applicants - Applicants
cooperated
with
investigation
-
Complaints filed after 7-12 years delay -
Interim anticipatory bail granted and
confirmed.

Held:
The court held that the restrictions on granting
bail under Section 45 of the PMLA do not apply
to Constitutional Courts due to the provision in
Section 44(2), which preserves the special