Noor Banoo alias Noor Begum and Others vs State of U.P. and Others

Binod Kumar Roy and D.C. Srivastava, JJ.—In this writ petition the prayer is to quash the First Information Report dated 15th July, 1996 registered as Crime Case No. 133 of 1996 u/s 366/383, I.P.C., police station Nakhasa, Sambhal, District Moradabad appending its copy as Annexure 4.

Heard the learned Counsel for the parties and perused the record. A perusal of the impugned first information report shows that Respondent No. 4 Smt. Mehmooda, wife of Zahir Akhtar, lodged a written information before the thanadhyaksh. Police Station Nakhasa alleging, inter alia, to the effect that her son Zamla Akhtar was married about three months earlier with Noor Begum, daughter of Sri Iftikhar Hussain resident of Deepa Sarai, that she, her daughter-in-law and her daughter-in-law''s sister Gulshan were wearing gold jwelleries weighing about twelve tolas while they were on their way to their relation and reached in front of the house of Tauquir Pehalwan, that Tauquir Pehalwan asked his son Akram to lift them on which Akram, Mota, their mother Naseema Begum and sister Muzamil, who were standing on the door, forcibly lifted her daughter-in-law and took her in the house and threatened the informant to be killed and asked her to run away; on her creating cries Akram son of Sri Mohd. Ismail, Rizvan son of Sri Zahid Hussain, and others, arrived and saw the incident; that it is being apprehended that her daughter-in-law may be raped or murdered by the accused persons and hence legal action be taken.

Petitioner No. 1 is the alleged daughter-in-law of the informant, Petitioner No. 2 is Akram, Petitioner No. 3 is Naseema Begum, Petitioner No. 4 is Muzamil and No. 5 is Mota.

The writ petition describes Petitioner No. 5 as a minor aged about 12 years under the guardianship of his mother Naseema Begum (Petitioner No. 3) though in Mohammedan Law the mother cannot be guardian of her minor son as laid down by the Hon''ble Supreme Court in Mahboob Sahab v. Syed Ismail AIR 1994 SC 1205. Even the Vakalatnama filed along with this writ petition does not state that the Petitioner No. 3 mother is executing Vakalatnama as guardian of Petitioner No. 5. To this, the learned Counsel for the Petitioner states that since father of Petitioner No. 5 is in Jail, hence this writ petition on behalf of Petitioner No. 5 is through the mother guardian. The mother has not executed any Vakalatnama in the capacity of guardian for Petitioner No. 5 nor can she be appointed guardian for Petitioner No. 5. This writ petition so far as he is concerned is not maintainable. Besides, no legal material has been produced alongwith this petition for recording any positive finding that Petitioner No. 5 is a minor.

The writ petition asserts that Petitioner No. 1 was married with Petitioner No. 2 earlier on 4.2.1996. The learned Counsel for the Petitioners strongly relied upon the testimony (Annexure-3) of the Petitioner No. 1 recorded u/s 200, Code of Criminal Procedure given in support of her complaint dated 22.7.1996. This claim cannot be adjudicated in this writ proceedings, besides it has not been stated that the necessary ceremonies which are required to be performed during a Mohammedan marriage were performed at the time of the alleged marriage of the Petitioner Nos. 1 and 2.

The allegation made in the first information report does show, prima facic, commission of offences by the Petitioner Nos. 2 to 5. For this reason, the first information report cannot be quashed.

In the first information report, the Petitioner No. 1 has not been shown as an accused. Thus, Petitioner No. 1 has no locus to move this Court for quashing the first information report. Learned Counsel for the Petitioner falls to show us any ratio of either our Court or of the Supreme Court or any other High Court to show that the Petitioner No. 1 has got a locus for quashing the first information report.

We also put on record the statement made by the learned Counsel for the Petitioner that the Petitioner No. 1 has been recovered by the police from the house of Taukir Pehalwan and she has been presently put in Nari Niketan. It is for the police and the Magistrate to find out the truth or otherwise of the defence of the Petitioners that Petitioner No. 1 was married earlier with Petitioner No. 2.

For the reasons aforementioned, we dismiss this writ petition.