Abdul Rasheed and Others vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard the learned Counsel for the Applicants, for the Respondent No. 2 and the A.G.A. for Respondent No. 1 and perused the record.

This is a petition u/s 482, Code of Criminal Procedure for quashing the summoning order dated 4.5.2006 passed in Case No. 697 of 2005 Smt. Neha v. Abdul Rasheed and Ors. u/s 406. I.P.C, police station Sadar Bazar, district Shahjahanpur.

It appears that the Respondent No. 2 filed a complaint in the court of Chief Judicial Magistrate, Shahjahanpur with the allegation that the Applicants have misappropriated her jewelleries and other STRIDHAN given at the time of NIKAH. So far as the allegations regarding torture, harassment and demand of dowry are concerned, a separate case Crime No. 310 of 2005 under Sections 498A, 323, 504 and 506, I.P.C. and Section 3/4 of the Dowry Prohibition Act, police station Sadar Bazar, district Shahjahanpur is already pending. In the present case it is alleged that the Applicants committed criminal breach of trust in not returning the Jewelleries and other STRIDHAN belonging to the Respondent No. 2 and misappropriated the same.

In the entire complaint, there is no specific allegation to show as to whom the jewelleries and other articles were entrusted. It is also not clear whether it was entrusted to all the accused or to any one of them. The statement of the Respondent No. 2 was also recorded u/s 200, Code of Criminal Procedure but no attempt was made by the C.J.M. to clarify the ambiguity by putting appropriate questions from the Respondent No. 2. The statement is mere repetition of the allegations made in the complaint. There is also no such specific statements of the witnesses Tara Begam and Mohd. Aslam Khan recorded u/s 202, Code of Criminal Procedure Again no attempt was made by the C.J.M. to make queries from these two witnesses for clarifying the aforesaid ambiguities. In absence/of any specific material as to whom the jewelleries and other articles were entrusted, the question of commission of criminal breach of trust does not arise. The recording of statements of the complainant and the witnesses u/s 200, Code of Criminal Procedure as well as holding an inquiry u/s 202, Code of Criminal Procedure is a most important function of the Magistrate, therefore, Magistrate should not behave as a silent spectator. In order to extract the truth from the complainant and the witnesses, relevant questions must be put to them so that filing of false and frivolous complaint are checked and a just and proper order is passed on the complaint. Mere a repetition of the complaint allegations by the complainant and witnesses does not fulfill the object behind the provisions providing for recording of the statements under Sections 200 and 202, Code of Criminal Procedure, therefore, relevant questions touching merits of the case as well as credibility of the complainant and witnesses must be put by the Magistrate. Any slackness in this regard may render the ultimate order passed in the matter bad in law.

For the reasons discussed above, the impugned order which is based on no proper inquiry u/s 202, Code of Criminal Procedure cannot be upheld.

The petition is allowed. The impugned order dated 4.5.2006 passed by the learned Chief Judicial Magistrate, Shahjahanpur in the aforesaid case (Annexure-7 to the petition) is set aside. The learned Chief Judicial Magistrate is directed to proceed afresh in the light of the observations made hereinbefore and pass an appropriate order in accordance with law.