- (1.) BY means of this petition under Section 482 Cr.P.C., the petitioners challenge the Criminal Proceedings of Complaint Case no. 1031 of 2010 (Barkat Ali Vs. Salman Sayyad Abdul Qadir and Ors.) under Section 379 I.P.C. pending in the court of Judicial Magistrate-II, Gonda, whereunder they are being prosecuted. In short, petitioners' case is that Salma Syyed Abdul Qadir, petitioner no. 1 was married with son of respondent no. 2, Barkat Ali Idrisi on 23-05-2008 as per Muslim rites and rituals in Mumbai and fulfilled all the matrimonial obligations. After marriage both the husband and wife resided at Mumbai. However, husband turned out the petitioner no. 1 on 14-06-2008 and divorced her by pronouncing Talaknama on 14th June, 2008 over phone. This Talaknama was invalid and she continues to be legally wedded wife of son of the respondent no. 2. Since 15th June, 2008, the petitioner no. 1 is residing with her brother who was taking care of her all expenses. Petitioners regularly made request to the son of the opposite party no. 2 to bring back the applicant no. 1 but all the efforts to settle the matter have failed. Ultimately, petitioner no. 1 filed application under Section 125 Cr.P.C. in the Family Court at Bandra, Mumbai which was partly allowed on 03-04-2010 to the extent that as interim maintenance Rs. 2,500/- per month would be payable from the date of application i.e. 18-05-2009. As a counter-blast, father-in-law of the petitioner no.1 filed a complainant case under Section 379 I.P.C. before the Judicial Magistrate, Gonda.
(2.) IN the complaint case, he has alleged that Salma(petitioner no. 1) and his brother came to Gonda on 30th April, 2010. On 01-05-2010, complainant was to attend a marriage so he asked the petitioner no. 1 and her brother to accompany but they refused to do so, therefore, he had left them in his house. When he came back around 6(?), he found the house locked and on inquiry from neighbour, namely, Sri Harishanker Singh, he found that the petitioners have taken Jewellery and cash amount of Rs. 35,000/- and ran away. When complainant's son went to the petitioner's house in Mumbai they threatened with dire consequences. Statement of Barkat Ali was recorded under Section 200 Cr.P.C. and statements of Nankau and Harishanker Singh were recorded under Section 202 Cr.P.C. Learned Magistrate vide order dated 19-10-2010, summoned the petitioners under Section 379 of the I.P.C. This very order is sought to be challenged on the ground that the petitioners are resident of Mumbai. This is an abuse of process of the Court summoning the petitioners and the said order has been passed without applying the mind etc. I have perused the complaint and statements recorded under Sections 200 and 202 Cr.P.C.
(3.) IN the complaint it is not stated that as to what was the relation between the complaint and the proposed accused persons. Only accused persons are said to be relative with visiting terms. Nankau in his statement recorded under Section 202 Cr.P.C. although states that the petitioners were on visiting terms but he too failed to mention the fact that she was the daughter-in-law of the complainant. Time for opening the door is mentioned to be 6 (?) in the complaint. IN the statement recorded under Section 200 Cr.P.C., no specific time was given while in the statement recorded under Section 202 Cr.P.C. specific time was given. Magistrate was supposed to apply his mind before passing the summoning order. Prosecution in a criminal case cannot be initiated merely on asking. The accused persons were resident of Mumbai. Learned Magistrate has not considered the impact of amended Section 202 Cr.P.C. which makes it incumbent upon him to make inquiry if the proposed accused persons are not residing within the jurisdiction vested with him. Magistrate should have carefully seen the complaint and the statements recorded in support thereof. Circulars of the High Court are specific that the statement under Section 200 Cr.P.C. would be recorded by Magistrate himself. This was done so that Magistrate may elicit the truth. Had Magistrate observed this, she would have immediately known that the petitioner no. 1 was daughter-in-law of the complainant. At least, he should have been asked to disclose the relationship which was supposedly so intense that complainant would hand over all the keys of his house.;