# Smt. Habiba v. The State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-02
- **Case number:** Application U/S 378 No. 54 of 2017
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-habiba-v-the-state-of-u-p-ors-48465
- **Pages:** 5

## Headnote

Law
-
Criminal
Procedure
Code,1973 - Sections 156(3), 200, 202,
246, 378 & 378 (4) - Indian Penal
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
Code,1860 - Sections 498-A & 323 - Leave
to prefer Appeal - against judgment & order of
acquittal - complaint - filed by a free minded
women (Azad khayaal) - quarrel between closed
relatives - no injury case - no prove of
maltreatment - contradiction in St.ments of
complainant and her witnesses - hence, all the
summoned opposite parties are acquitted from
Charges - Prosecution case is not proved
beyond reasonable doubt - held, that duty of
Court to punish the guilty person when guilt is
established beyond reasonable doubt not less
than - even it is not a case of two opinion can
be drawn - accordingly, appeal dismissed.(Para
- 5, 9, 10)

Appeal Dismissed. (E-11)

## Text

5 All. Smt. Habiba Vs. The State of U.P. & Ors.
1223
2010 (15) SCC 228, Raja Khan v. Uttar
Pradesh Sunni Central Waqf Board and
another.

19. In the instant case, the learned
Single Judge has assumed jurisdiction to
send the matter for mediation at Lucknow
on a stated submission which according to
the
learned
Single
Judge
was
a
concession."

---------*******------******-------
*******-----*****

"20. We are of the considered
opinion that a jurisdiction cannot be
assumed on the concession of the counsel
for the parties or even otherwise, in a
matter that squarely relates to the dispute
at Allahabad.

21. Merely because the opposite
party had lodged an F.I.R. at Lucknow
and instituted a criminal case, the same
would not make the application under
Section 24 CPC maintainable in relation
to the dispute pending before the Family
Court at Allahabad. This assumption,
therefore, by the learned Single Judge in
our considered view is not the correct
view for assuming jurisdiction that is
totally lacking."

22. Applying the principles to the
instant case, it is found that the averments
made in the petition relates to the threat
received by the counsel for the petitioner
while he was arguing the case before the
Court in Tilhar district Shahjahanpur. The
difficulty is being faced at Tilhar. Thus,
the cause of action for the instant petition
for transfer wholely accrues at District
Shahjahanpur
which
is
beyond
the
specified area of Oudh.

23. In matters relating to transfer of a
case from one district to another, it is to be
noticed that if the case is pending before a
Court which is within the specified area of
Oudh only in respect of such cases does
this Court exercises the powers of transfer
under Section 24 C.P.C.

24. In the instant case, the petition for
transfer relates to a suit pending in District
Shahjahanpur which as noticed above, is
beyond the specified area of Oudh,
accordingly, this Court has no hesitation to
hold
that
the
instant
case
is
not
maintainable here at Lucknow. Since the
Court has come to the conclusion that it
does not have the territorial jurisdiction to
entertain the matter, hence, for the said
reason the Court does not deem appropriate
to examine the averments of the respective
parties on merits.

25. The petition is dismissed solely on
the ground that it is not maintainable at
Lucknow, however, liberty is granted to the
petitioner to move the appropriate Court in
Prayagraj.
----------
(2022)05ILR A1223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Application U/S 378 No. 54 of 2017

Smt. Habiba ...Applicant
Versus
The State of U.P. & Ors. ...Respondent

Counsel for the Petitioners:
Zafar Abbas

Counsel for the Respondents:
G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Sections 156(3), 200, 202,
246, 378 & 378 (4) - Indian Penal
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
Code,1860 - Sections 498-A & 323 - Leave
to prefer Appeal - against judgment & order of
acquittal - complaint - filed by a free minded
women (Azad khayaal) - quarrel between closed
relatives - no injury case - no prove of
maltreatment - contradiction in St.ments of
complainant and her witnesses - hence, all the
summoned opposite parties are acquitted from
Charges - Prosecution case is not proved
beyond reasonable doubt - held, that duty of
Court to punish the guilty person when guilt is
established beyond reasonable doubt not less
than - even it is not a case of two opinion can
be drawn - accordingly, appeal dismissed.(Para
- 5, 9, 10)

Appeal Dismissed. (E-11)

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Sri Zafar Abbas, learned
counsel for the applicant and Sri Sanjay
Sharma, learned A.G.A. for the State and
perused the record.

2. The instant application has been
moved by applicant under Section 378(4)
of Cr.P.C. for granting leave to prefer
appeal against the judgement and order of
acquittal dated 15.3.2017 passed by
learned
Additional
Chief
Judicial
Magistrate, Court No. 12, Azamgarh in
Criminal Complaint Case No.1574 of
2016 ( Smt. Habiba Vs. Jamal Ahmed and
another).

3. The brief facts of the case is that
the complainant moved an application
under
Section
156(3)
Cr.P.C.
on
1.12.2009, which was treated as complaint
alleging therein that her marriage was
solemnized with opposite party no.2 Jamal
Ahmed on 21.5.2008 in the village
Asadha, Police Statio- Saraimeer, District-
Azamgarh according to Muslim Rights
and Ceremonies. Opposite party no.2 is
the resident of Village Bisaham, Police
Station- Mehnagar, District- Azamgarh.
After her marriage she went to the house
of opposite party No.2 and performed her
obligations as wife. After sometime they
blessed with a son namely Ismaile. The
family members of her in-laws are very
rich, but they are very greedy for dowry.
After sometime of marriage, her husband
Jamal Ahmed, mother-in-law Farzana,
Nanad Nazia began to taunt her for
bringing meagre dowry and starting
creating pressure upon her for bringing
Rs.3,50,000/- from her father so that Jamal
Ahmed may go to abroad or may purchase
a shop. On account of non-fulfilment of
the demand, they used to taunt and harass
her and were also not giving her sufficient
food. They were torturing her physically
and mentally. On 8.8.2008 at about 10:00
a.m., she was beaten by them and driven
out from the house with only clothes
which she wore and they retained her
remaining clothes and ornaments. Anyhow
she reached at the house of her parents
weeping and told the entire incident to her
parents. She did not sustain any visible
injury, therefore, she was not subjected to
medical examination. She went to the
Police Station- Mehnagar to lodge the
report along with her father, but the
Station House Officer of that police
station assured them stating that wait he
will registered the case against the accused
after inquiry he will arrest them, but no
action was taken by him. Thereafter, she
visited the Circle Officer and apprised him
regarding the incident, but no action was
also taken. Thereafter, she sent an
application by registered post on 8.9.2009
to the Senior Superintendent of Police,
Azamgarh, but again no action was taken.
Thereafter, the application under Section
156(3)
of
Cr.P.C.
was
moved
on
1.12.2009, which was treated as complaint
vide order dated 1.12.2009.
5 All. Smt. Habiba Vs. The State of U.P. & Ors.
1225
4. Learned Judicial Magistrate has
recorded the statement of complainant Smt.
Habiba under Section 200 of Cr.P.C. and
also recorded the statements of Kashif and
Sahabuddin under Section 202 of Cr.P.C.
and after hearing the learned counsel for
the complainant vide order dated 9.8.2010
has summoned opposite party no.2 Jamal
Ahmed and opposite party no.3 Farzana for
facing trial for offence punishable under
Sections 498-A & 323 I.P.C. Thereafter,
opposite party nos.2 & 3 appeared and the
statement of Smt. Habiba was recorded as
PW-1 and Kashif was recorded as PW-2
under Section 244 of Cr.P.C. Thereafter,
charges of offence punishable under
Sections 498-A & 323 I.P.C. was framed
against the accused opposite party nos.2 &
3 to which they have not pleaded guilty and
claimed to be tried. PW-1 Smt. Habiba and
PW-2 Kashif were cross examined at the
stage of Section 246 of Cr.P.C. and
witnesses Shahabuddin (PW-3) and R.V.
Yadav (PW-4) were also examined at the
stage of Section 246 of Cr.P.C.

5. Learned lower court after appreciating
the evidence of witnesses has held that in
cross examination the complainant has stated
that her first marriage was taken place with
Asif who is resident of village Chhaun,
District Azamgarh on 25.12.2006 and no
child was born out of that wedlock. She has
further admitted that she did not go to village
Chhaun second time after marriage. She went
to Bhimandi and remained there for five
months and being tensed with her in-laws
family she came to her parental home,
thereafter, her first husband divorced her in
year 2008. She has further stated that after
that she married with Jamal Ahmed. She has
further admitted that it was the first marriage
of Jamal Ahmed. Kashif (PW-2) has stated
that he is the brother of complainant and
Jamal Ahmed is son of his maternal uncle.
Learned lower court has held that there are
contradictions
in
the
statement
of
complainant and complainant witnesses.
Learned lower court has also held that the
marriage of Smt. Habiba with Jamal Ahmed
was taken place under pressure of her
maternal grandfather Athar Ali. She has also
admitted in her cross examination that when
she first time went to her in-laws house she
felt no problem. She was harassed and
maltreated thereafter, but has not given the
detail in what manner she was harrassed and
maltreated. Kashif (PW-2) has also stated that
when Smt. Habiba went to her in laws house
she lived there happily. He has further stated
that her second marriage has taken place with
Jamal Ahmed and out of their wedlock a son
namely Ismaile was born. Learned lower
court has also held that the complainant and
her husband are close relatives. Learned
lower court has also held that no injury was
found on the body of complainant which
establishes that she was not beaten and
maltreated. The defence witness Matin as has
stated that complainant is free minded (azad
khayaal) women. Due to her incompatibility,
her first husband has given divorce to her.
There was no chance of her second marriage.
The complainant was close relative of Jamal
Ahmed and her marriage with Jamal Ahmed
was taken place under pressure of her
maternal grandfather without any dowry. Her
husband
and
her
mother-in-law
never
maltreated her or demanded dowry and held
that offence punishable under Sections 323,
498-A I.P.C. is not made out against accused
Jamal Ahmed and Farzana and has acquitted
them from the above charges vide impugned
judgement against which the application for
grant of leave to prefer appeal has been filed.

6. It is contended by learned counsel
for the applicant that from the statement of
PW-1, PW-2, PW-3 it is proved that
opposite party no.2 has demanded dowry of
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.3,50,000/- and when the applicant failed
to fulfil the demand, the applicant was
kicked out from her in-laws house on the
very same year of marriage, but learned
lower court without considering the said
evidence
has
illegally
acquitted
the
opposite party nos.2 & 3. It is further
contended that the complainant as well as
all the witnesses of the fact established and
proved the case against opposite party
nos.2 & 3 for offence punishable under
Sections 498-A I.P.C., but they were
illegally acquitted by learned lower court. It
is further contended that the learned lower
court has over looked and failed to consider
the ingredients of Section 498-A I.P.C. It is
further contended that from perusal of the
complaint and the statement of the
witnesses before the court, the offence
punishable under Section 498-A I.P.C. is
proved without any reasonable doubt
against opposite party nos.2 & 3. It is
further contended that there was ample
evidence to prove the offence punishable
under Sections 498-A, 323 I.P.C., but
learned Judicial Magistrate has illegally
held that the case of complainant for
offence punishable under Sections 498-A,
323 I.P.C. is not proved and illegally
acquitted the opposite party nos.2 and 3.
On these grounds, learned counsel for the
applicant has contended that this court may
graciously be pleased to grant leave to
prefer
appeal
against
the
impugned
judgement and order of acquittal.

7. Learned A.G.A. has opposed the
application and has contended that the
second marriage of the complainant has
taken place with the son of her maternal
uncle in close relation. It is further
contended that the applicant is quarrelsome
lady and her divorce has taken place with
her previous husband and thereafter her
second marriage has taken place with
opposite party no.2. It is further contended
that she is non-compatible so she used to
quarrel with her husband and his family
members. It is further contended that there
is no infirmity in the impugned judgement
and order of the lower court by which the
opposite party nos.2 & 3 were acquitted
from the charges of offence punishable
under Sections 498-A, 323 I.P.C. and
prayed that the application for grant of
leave to prefer appeal is liable to be
dismissed.

8. I have gone through the file and lower
court record including the depositions of the
witnesses. From perusal of the complaint and
the testimonies of the witnesses, it is proved
that second marriage of the complainant has
taken place on 21.5.2008 with opposite party
no.2 Jamal Ahmed. From the evidence on
record, it is also proved that opposite party
no.3 Farzana is her mother-in-law. It is not
disputed that they were blessed with a son
named Ismaile. She had stated in her
statement recorded under Section 200 of
Cr.P.C. that the demand of dowry of
Rs.3,50,000/- was demanded after two
months of marriage. She has categorically
stated that her son was born in June, 2009,
who is living with her. She has also stated
that she has driven out from in-laws house on
8.8.2008, thereafter, she did not go to her
husband's house. Witness Shahabuddin is her
Mausa. Witness Kashif is her brother. PW-1
Smt. Habiba in her statement recorded under
Section 246 of Cr.P.C. has stated that her first
marriage was taken place with Asif resident
of
village
Dhaaun,
Police
Station
Gambhirpur,
District
Azamgarh
on
25.12.2006. After marriage, she did not go to
village Dhaaun second time. Thereafter, she
went to Bhimandi, Maharastra and remained
there for five months and returned thereafter
due to tension in her family and did not go to
the resident of her first husband. She has
5 All. Anand Kumar Mishra Vs. State of U.P. & Ors.
1227
further stated that there was some quarrel
with her family members of in-laws between
her. She did not file any complaint against
her first husband and her family members.
She was divorsed by her first husband in
February, 2008. She showed ignorance
regarding payment of maintenance during
iddat by her first husband after divorce. She
has further stated that divorce with her first
husband was taken place with mutual
consent. She has further stated that her
maternal uncle Athar father of the accused
Jamal Ahmed was in Dubai at the time of her
marriage. She has further stated that her
family members of in-laws forbade her not to
make complaint regarding dowry to her
maternal grandfather. She has further stated
that she remained in her in-laws house only
for one month and thereafter she came to her
parents house after bidai and since then she is
living in her parents house. She has further
stated that the relations of her Mausa
Shahabuddin and Jamal Ahmed was tensed.
She has further stated that after the divorce
from her first husband her son was born after
11 months. She has admitted in her statement
that her first husband has divorced her in
February, 2008 and her marriage with Jamal
Ahmed was taken place on 21.5.2008. From
perusal of the statement of Smt. Habiba (PW1), it is clear that she has admitted that she
went to the house of her in-laws once and
thereafter her brother visited to her and taken
her back to his home.

9. In above circumstances, I find it
justified that prosecution case is not proved
beyond reasonable doubt and learned lower
court has rightly acquitted the accused from
the charges of offence punishable under
Sections 498-A, 323 I.P.C. From above
discussion, it is proved that the complaint
was filed on false and frivolous ground. A
special leave to appeal could be granted
only where the view taken by acquitting
judge is clearly unreasonable, it is the duty
of the court to punish the guilty person
when the guilt is established beyond
reasonable doubt not less than, it is the duty
to acquit the accused when it is not so
established.

10.
In
such
circumstances,
the
impugned judgement and order of acquittal
is justified and even it is not a such case in
which
two
opinion
can
be
drawn.
Accordingly, I find no merit in the
application for special leave to appeal and
consequently, the application for special
leave to appeal is dismissed.

11. Lower court record be returned
back to the concerned court forthwith.
----------
(2022)05ILR A1227
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ-A No. 9049 of 2020

Anand Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Srideep Chatterjee

Counsel for the Respondents:
C.S.C., Abhinav Trivedi, Avadhesh Kumar Singh,
Baldev Singh, Dr. V.K. Singh, Shubham Tripathi

Civil Law - Constitution of India,1950 -
Article 226, - UP King George Medical
University Act, 2002 - Sections 4, 13,
42(1) & 42(2) - UP Recruitment of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 1974 - Rule - 5
- Compassionate Appointment - father of
petitioner died-in-harness - Complaint received