# Riyazuddin & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-18
- **Case number:** Application u/s 482 No. 29856 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/riyazuddin-ors-v-state-of-u-p-anr-opp-parties-49962
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Indian
Penal Code, 1860- Sections 498-A, 323,
504, 506 & 3⁄4 D.P. Act-Challenge tocognizance as well as summoning ordermarriage performed 18 years before the
alleged incident-no medical report in
support of the prosecution version no
date, time and place of the alleged
incident has been given by the opposite
party and the witnesses-no specific role
has
been
assigned-no
allegation
of
additional dowry-Learned Magistrate has
not assigned the reason regarding not
taking the cognizance under the impugned
all sections-While taking cognizance only
file
was
provided
to
the
concerned
Stenographer and he transcribed the order
and thereafter without applying judicial
mind, it was signed by the Judicial
Magistrate-the learned Magistrate has not
even thought to follow the relevant
judicial precedents while passing the
order-No prima facie case is made out-the
impugned order is liable to be set
aside.(Para 1 to 20)

The application is allowed. (E-6)

List of Cases cited:

## Text

4 All. Riyazuddin & Ors. Vs. State of U.P. & Anr.
403
order and his aforesaid undertaking before
the Passport Officer/authority concerned
for renewal or reissue of his passport, as the
case may be.

(iv) In case such application is moved
by
the
applicant,
the
Passport
Officer/authority concerned considering the
case of the applicant afresh in the light of
observation made by this Court in this
order as well as contents of undertaking of
the applicant, shall decide the application
of the applicant in accordance with law
within three weeks from the date of moving
application by the applicant before him.
----------
(2023) 4 ILRA 403
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 29856 of 2022

Riyazuddin & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Shams Tabrez Alam Ansari

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Indian
Penal Code, 1860- Sections 498-A, 323,
504, 506 & 3⁄4 D.P. Act-Challenge tocognizance as well as summoning ordermarriage performed 18 years before the
alleged incident-no medical report in
support of the prosecution version no
date, time and place of the alleged
incident has been given by the opposite
party and the witnesses-no specific role
has
been
assigned-no
allegation
of
additional dowry-Learned Magistrate has
not assigned the reason regarding not
taking the cognizance under the impugned
all sections-While taking cognizance only
file
was
provided
to
the
concerned
Stenographer and he transcribed the order
and thereafter without applying judicial
mind, it was signed by the Judicial
Magistrate-the learned Magistrate has not
even thought to follow the relevant
judicial precedents while passing the
order-No prima facie case is made out-the
impugned order is liable to be set
aside.(Para 1 to 20)

The application is allowed. (E-6)

List of Cases cited:

1. Kahkashan Kausar @ Sonam & ors. Vs St. of
Bih. & ors. (2022) 0 Supreme (SC) 117

2. Lalita Kumari Vs St. of U.P. & ors. (2014) 2
SCC 1

3. Social Action forum for Manav Adhikar & anr.
Vs UOI, Ministry of Law & Justice & ors. (2018)
10 SCC 443

4. Rajesh Sharma & ors. Vs St. of U.P. &
anr.(2018) 10 SCC 472

5. Arnesh Kumar Vs St. of Bih. & anr. (2014) 8
SCC 273

6. Preeti Gupta & anr. Vs St. of Jharkhand & anr.
(2010) 7 SCC 667

7. Geeta Mehrotra & anr. Vs St. of U.P. & anr.
(2012) 10 SCC 741

8. K. Subba Rao Vs St. of Telangana (2018) 14
SCC 452

9. St. of Guj. Vs Girish Radhakrishnan Varde
(2014) 1 JIC 595 SC

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Shams Tabrez Alam
Ansari, learned counsel for the applicants
404 INDIAN LAW REPORTS ALLAHABAD SERIES
and Shri Pankaj Kumar Tripathi, learned
A.G.A for the State- opposite parties.

2. This application has been filed to
quash the proceeding of Criminal Case No.
5150 of 2022 arising out of Crime No. 86
of 2021 under Sections 498-A, 323, 504,
506 I.P.C and Section 3⁄4 Dowry Prohibition
Act and Section 3⁄4 of Muslim Women
(Protection of Rights on Marriage) Act,
2020, Police Station Dohari-Ghat, District
Mau,
and
the
charge
sheet
dated
11.05.2019 as well as cognizance and
summoning order dated 18.04.2022 passed
by Judicial Magistrate F.T.C (Crime
against Women), District Mau.

3. In brief, fact of the case are that the
applicants lodged the aforesaid F.I.R in
P.S. Madhuban, District- Mau, in which
after investigation a charge-sheet has been
submitted in the aforementioned Sections
against the applicants upon which on
18.04.2022 cognizance has been taken and
applicants are summoned as accused.

4. In the application and the affidavit
the applicant has averred that the marriage
of the applicant no. 1 and the opposite party
no. 2 was solemnized on 03.03.2019 as per
Muslim Rites & Rituals. The I.O had given
notice under Section 41-A of the Cr.P.C to
the applicants, they appeared and their
statements were recorded by the I.O but he
did not arrest them as they fully cooperated
with the investigation.

5. From perusal of the F.I.R and the
statements of the witnesses, no prima-facie
offences under the aforesaid Sections are
made out. There is no evidence to
prosecute them. The marriage between the
applicant nos. 5 and 6 (both are the wife
and husband) was performed 18 years
before the alleged incident; they are living
in Village : Banzari, P.S. Ghosi, District
Mau. There is 40 k.m. distance between
both the village. The applicant no. 4 is also
a married woman and lives in her
matrimonial house with her husband,
whereas applicant nos. 2 and 3 unmarried
brother and sister are living with applicant
no. 1, hence they had been falsely
implicated in the present case.

6. The I.O. recorded the statement of
Head Muharrir and added Section 3⁄4 of
Muslim Women (Protection of Rights of
Marriage) Act, 2020. There is no medical
report in support of the prosecution version
no date, time and place of the alleged
incident has been given by the Opposite
party no. 2 and the witnesses, no specific
role has been assigned except general role
against all the applicants. There is no
allegation of additional demand of dowry,
learned Magistrate neither perused the
charge-sheet nor applied his judicial mind
and has taken cognizance under Sections
498-A, 323, 504 & 506, I.P.C and Section 4
of D.P. Act; while the charge-sheet was
submitted under aforesaid Sections and also
under Section 3⁄4 D.P. Act and 3⁄4 Muslim
Women (Protection of Rights on Marriage)
Act, 2020. The learned Magistrate has not
assigned the reason regarding not taking
the cognizance under the impugned all
Sections.

7. Prior to the F.I.R, the opposite party
had also filed a petition under Section 13 of
the Hindu Marriage Act, which was rejected
by the concerned Court, thereafter, she filed
an application under Section 125 Cr.P.C,
which has also been rejected thereafter she
filed second application under Section 125
Cr.P.C, which is still pending.

8. The applicants are wholly innocent
and they have falsely been implicated in the
4 All. Riyazuddin & Ors. Vs. State of U.P. & Anr.
405
present case. Opposite party no. 2 wanted
to live separately, therefore the disputes
arose with her husband, who refused her
request thereafter she went to her parental
house and never came back.

9. Learned counsel has annexed all
the referred documents as annexures to the
application; notice was personally served
upon opposite party no. 2, but she did not
turn up. However, the State has filed
counter affidavit no. 1/22, in which State
has denied all the allegations leveled in the
application.

10. The applicants have filed
rejoinder affidavit against the counter
affidavit on 09.12.2022 and has reiterated
and reaffirmed all the facts already narrated
in the petition, denying the facts averred in
the counter affidavit, but could not deny the
allegation regarding triple Talak.

11. Heard and perused the record.

12. As per F.I.R, when the opposite
party no. 2 refused to lift the case, the
applicant no. 1 - Riyazuddin given her
triple Talak on telephone at about 3:50 p.m
on 04th January, 2021, thereafter she
visited the house of Riyazuddin then he
abused her and said that without Halala she
cannot live/reside in the house. All the
accused persons threatened to kill her if she
comes again. Any untoward incident may
occur at any time. This fact has also been
affirmed by the informant in her statement.
The informant's father Badruddin and
mother Jolekha have also given similar
statements in support of this allegations
(regarding allegation of triple Talaak); the
Head Constable Nasim Farukhi has stated
that by mistake Section 3⁄4 the Muslim
Women (Protection of Rights on Marriage),
Act, 2020 had been left, thereafter
according to his statement Section 3⁄4
Muslim Women (Protection of Rights on
Marriage) Act, 2020 was also added; this
fact has also been mentioned in the
application moved under Section 125
Cr.P.C.

13. Learned counsel for the applicants
has relied on the judgment Kahkashan
Kaussar @ Sonam and Ors. Vs. State of
Bihar & Ors. 2022 0 Supreme (SC) 117, in
which, niece, mother-in-law, sister-in-law
and brother-in-law were made accused and
general allegations were levelled against
them.

14. Earlier, the informant had also
lodged F.I.R on 11.12.2017; the present
F.I.R was lodged on 01.04.2019; seven
accused persons including the husband
were implicated, however, only five
accused persons had challenged the F.I.R;
the Apex Court has also relied on the
citation Lalita Kumari Vs State of U.P. &
Ors. (2014) 2 SCC 1 and Social Action
Forum for Manav Adhikar & Another Vs.
Union of India, Ministry of Law & Justice
and Ors. (2018) 10 SCC 443.

15. The Apex Court held that now-adays, a tendency is increased to apply
provisions such as Section 498-A I.P.C as
instrument to settle personal spores against
the husband and his relatives. The Apex
Court cited the previous judgment of
Rajesh Sharma and others vs. State of
U.P. & Anr. (2018) 10 SCC 472; Arnesh
Kumar Vs. State of Bihar & Anr. (2014) 8
SCC 273, Preeti Gupta & Anr. Vs. State of
Jharkhand & Anr., (2010) 7 SCC 667,
Geeta Mehrotra & Anr. Vs. State of U.P &
Anr. (2012) 10 SCC 741 and K. Subba
Rao Vs. State of Telengana, (2018) 14
SCC
452
and
observed
that
false
implication by way of General and
406 INDIAN LAW REPORTS ALLAHABAD SERIES
Ominibus allegations made in the course of
matrimonial dispute, if left unchecked
would result in misuse of process of law.
Therefore, this Court by way of this
judgment has warned the courts from
proceedings against the relatives and inlaws of the husband if no prima-facie case
is made out against them.

16. The Apex Court found that no
specific and distinct allegations have been
made against either of appellants herein.
They have not been attributed any specific
role in the cited case; the order of High
Court Patna and the F.I.R was set aside.

17. Learned counsel for the applicants
has relied on the Precedence State of
Gujrat Vs. Girish Radhakrishnan Varde
2014 (1) J.I.C 595 (Supreme Court). In
paragraph 13 of the judgment, it is held that
the Magistrate cannot hold inquiry if any
F.I.R is registered by the Police and chargesheet has been submitted. The Magistrate
cannot exclude or include any Section or
any charge after submission of the chargesheet.

18. In this case, the F.I.R had been
lodged in the aforementioned Sections and
the Charge-sheet has also been submitted
under the same Sections, but while taking
cognizance without assigning any reason
only noting that there is sufficient ground
for taking cognizance, the accused persons
have been summoned under Sections 498A, 323, 504, 506 I.P.C and Section 4 of the
D.P. Act, why the cognizance was not
taken under Section 3 D.P. Act, and under
Section 3/4 the Muslim Women (Protection
of Rights on Marriage), Act, 2020, no
reason has been assigned. Even in the first
para of the order, it is not written that the
charge-sheet has been submitted under
Section 3/4 D.P. Act and Section 3⁄4 of the
Muslim Women (Protection of Rights on
Marriage), Act, 2020. It clearly shows and
establishes that at the time of taking
cognizance only file was provided to the
concerned Stenographer that let the order
be transcribed and thereafter without
applying judicial mind, it was signed by the
Judicial Magistrate F.T.C (Offence against
Women), District Mau. It is matter of
concern that when the officer is specially
deputed for trial for offence against
women, he did not pay attention as to why
he was not taking cognizance under Section
3 D.P. Act and Section 3⁄4 of the Muslim
Women (Protection of Rights on Marriage),
Act, 2020; so far as the applicability of the
principles laid down in Kahkashan Kausar
@ Sonam (supra) concerned, the learned
Magistrate has not even thought to follow
the relevant judicial precedents while
passing the order.

19. In the aforesaid circumstances,
this Court is of the view that to prevent the
abuse of process of the Court and to secure
the ends of justice there is no any
alternative remedy except to exercise the
inherent power under Section 482 Cr.P.C.

20. On the basis of the above
discussions, the impugned order regarding
cognizance is liable to be set aside.

O R D E R

21. In view of above, this application
under Section 482 Cr.P.C is allowed.

22. The impinged order dated
18.04.2022, regarding taking cognizance by
Judicial Magistrate F.T.C (Crime against
Women), District Mau. is hereby set aside.

23. The learned Judicial Magistrate
F.T.C (Offence against Women), District
4 All. Harish Chandra & Ors. Vs. State of U.P. & Anr.
407
Mau, is directed to go through the Case
Diary and the Charge-sheet and thereafter
pass
afresh
order
in
light
of
the
observations made above.

24. The District Judge Mau, is
directed to guide the concerned Judicial
Officer.
----------
(2023) 4 ILRA 407
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 32841 of 2008

Harish Chandra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Brijendra Kumar Ojha, Sri B.D. Sharma, Sri P.K.
Dubey, Sri Suresh Dhar Dwivedi

Counsel for the Opp. Parties:
G.A., Sri Anupam Tripathi

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 & 311 -
Indian Penal Code, 1860 - Sections 304,
323 & 504-Challenge to-Summoning order
u/s
311
Cr.P.C-allowed-injured
eye
witnesses were medically examined and
the original injury reports had been taken
by the police-Police did not made them
witness under the connivance of the
accused
persons
while
the
proposed
witnesses had received injuries with the
deceased at the time of incident-Inspite of
getting
their
medical
report,
their
statement had not been recorded by the
IO nor the same has not been annexed
with the charge sheet-Mentioning the
name of all witnesses in FIR or in
statements u/s 161 Cr.P.C. is not a
requirement of law-Such witnesses can
also be examined by prosecution with the
permission of the court-Non-mentioning
of the name of any witness in the FIR
would not justify rejection of evidence of
eye-witnesses-Thus, the trial court rightly
allowed the application.(Para 1 to 20)

B. The object underlying Section 311 CrPC
is that there may not be failure of justice
on account of mistake of either party in
bringing the valuable evidence on record
or leaving ambiguity in the statements of
the witnesses examined from either side.
The determinative factor is whether it is
essential to the just decision of the case.
It is, however, to be borne in mind that
the discretionary power conferred u/s 311
Cr.PC has to be exercised judiciously.(Para
16)

The application is dismissed. (E-6)

List of Cases cited:

1. Raja Ram Prasad Yadav Vs St. of Bih. & anr.,
(2013) AIR SC 3081

2. R.B. Mithani Vs St. of Mah. (1971) AIR
SC1630

3. St. of Har. Vs Ram Prasad (2006) Cr.L.J. 1001

4. Shailendra Kumar Vs St. of Bih. (2002) SC
270

5. Ramasami Vs Sriniwasan (1987) 3 Crimes 89
Madras

6. Rama Paswan Vs St. of Jharkhand (2007) Crl.
L.J. 2750

7. Popat Lal & ors. Vs St. of Mah. (2002) Crl L.J.
794

8. V.N. Patil Vs Niranjan Kumar & ors. (2021) 3
SCC 661

9. Bhagwan Singh Vs St. of M.P. (2002) 44 ACC
1112 SC

10. Raj Kishor Jha Vs St. of Bih. (2003) 47 ACC
1068 SC

11. Chittarlal Vs St. of Raj. (2003) 6 SCC 397