- (1.) R. K. Rastogi, J. This is an application under Section 482 Cr. P. C. for quashing the order of the Magistrate dated 22-11- 2004 whereby the accused had been summoned under Section 420 I. P. C. in Criminal Case No. 274 of 2004, State v. Aun Mohammad and Ors. , pending before the C. J. M. Varanasi.
(2.) THE facts relevant for disposal of this application are that the complainant opposite party No. 2 had filed an application under Section 156 (3) Cr. P. C. against the accused applicants in the Court of C. J. M. Varanasi against Aun Mohammad, Shada Bano and Qadir Hussain with these allegations that talks of marriage of the complainant's son S. J. Hussain were going on and the accused applicants No. 1 and 2 offered for marriage of their daughter Shaihar Bano alias Shahana with S. J. Hussain. THE complainant and his wife after seeing the girl gave their consent on 25-1-2004 for marriage with their son S. J. Hussain and also gave Gifts worth Rs. 10,000/- to Shaihar Bano. THEreafter on 7-2- 2004 the accused applicants and their another daughter Shabana and some witnesses Nargish and others came to the complainant's house and they saw S. J. Hussain, son of the complainant. THEy again came to the house of the complainant alongwith some more persons and then they took one week's time. THEreafter they gave their consent for marriage and about Rs. 10,000/- were again spent in their reception at the complainant's house. THEreafter on 15-2-2004 the accused again came to the house of the complainant and gave consent for marriage and the date 6-6-2004 was fixed for marriage. Engagement ceremony of the girl was performed at her house on 30-4-2004 and a sum of Rs. 60,000/- was spent by the complainant. THEreafter engagement ceremony again took place on 15-5-2004 at the boy's house and a sum of about Rs. 60,000/- was spent by the complainant. THEreafter the complainant started preparation for marriage and got the invitation cards printed and a sum of about Rs. 50,000/- was spent in all these arrangements. On 28-5-2004 the complainant received a telephonic message from the accused applicant that he would not perform marriage of his daughter with the complainant's son. When complainant told him that all the preparations had been made, he told in reply that the complainant may do whatever he likes. THE complainant thereafter came to know that the accused wanted to perform marriage of their daughter with some other boy. THEn the complainant asked the accused to give him a sum of Rs. 2 lacs spent by him. THEn the accused refused to pay this amount. THE complainant's prestige and reputation was badly affected, and in this way the accused committed offences under Sections 420 and 500 I. P. C. THErefore the complainant filed an application under Section 156 (3) Cr. P. C. praying for a direction to the police station concerned for registration and investigation of the case by the police. At the initial stage the learned Magistrate had passed order on 15-6-2004 for investigation of the case by the police. The police after investigation submitted a final report in the case. The complainant filed a protest petition. On that protest petition an additional report was sought from the police station concerned. It was submitted on 13-6-2004. Thereafter the learned Magistrate passed order on 22-11- 2004 summoning the accused applicants under Section 420 I. P. C. Aggrieved with that order the accused have filed this application under Section 482 Cr. P. C. I have heard the learned Counsel for the applicant and Mr. Rajendra Kumar Rathor, learned Counsel for the opposite party No. 2 as well as learned A. G. A. for the State and perused the record.
(3.) IT was submitted by the learned Counsel for the applicant that after submission of inquiry report by the police in the matter the proper procedure for the Magistrate was to consider the protest petition as a complaint and there was no justification for passing an order summoning the accused as a State case. Learned Counsel for the applicant further contended that the order passed by the Magistrate was completely illegal and unjustified. Learned Counsel for the complainant as well as the learned A. G. A. for the State submitted in reply that the order passed by the learned Magistrate was correct and, in support of their contentions they relied upon a Division Bench ruling of this Court in Prakhando and Ors. v. State of U. P. and Anr. , 2004 (3) JIC 66 (SC) : 2001 (43) ACC 1096 and another ruling of Hon'ble Apex Court in Jagdish Ram v. State of Rajasthan and Anr. , [2004 (3) JIC 66 (SC) : 2004 Supreme Court Cases (Crl) 1294] in which it has been held that where is sufficient material in the case diary against the accused, they can be summoned.;