Syed Izhar Husain vs State of U.P. and Others

V.P. Pathak, J.—Present petition has been filed with the prayer to set aside the impugned order dated 21.01.2013 passed by Metropolitan Magistrate 1st, Kanpur Nagar in complaint No. 10 of 2012, under Sections 315, 504, 506 IPC, P.S. Kohana, District Kanpur Nagar, whereby the complaint filed by the petitioner has been rejected under Section 203 Cr.P.C.

Heard learned counsel for the petitioner as well as learned AGA for the State and learned counsel for the opposite parties No. 2 to 5 and perused the record.

The factual matrix of the present case is that the opposite party No. 2, Sumaira Sheik @ Simmi is the wife of the petitioner and the opposite parties No. 3 & 4, Sheik Shahida Begum and Sheik Nuruddin are mother-in-law and father-in-law of the petitioner and the opposite party No. 5, Dr. Shobha Vij is said to have provided medical treatment to opposite party No. 2.

The petitioner namely Syed Izhar Husain filed an application under Section 156(3) Cr.P.C. in the court of Metropolitan Magistrate Ist, Kanpur Nagar against the opposite parties No. 2 to 5, under Sections 315, 504, 506 IPC with the prayer to direct the Station Officer, Police Station Kohana, District Kanpur Nagar to register the case and investigate the matter. The said application moved by the petitioner was registered as a complaint. According to the allegations made in the complaint moved by the petitioner, his wife (opposite party No. 2) left his house on being instigated by her parents (opposite parties No. 3 & 4) and was residing in her parental house. She was not ready to live with the petitioner even making much efforts by the petitioner. The petitioner''s wife wanted to kill the foetus, whom she was conceiving in her womb at that time and when she did not pay any heed towards persuasion of the petitioner, an application was moved by him to Police Station Becanganj. It is further alleged that during 27.07.2011 to 31.07.2011 the wife of the petitioner in collusion with her parents got her six months'' pregnancy terminated in Laxmi Sehgal Nursing Home, Arya Nagar, Kanpur Nagar. The petitioner after knowing the said act on 30.07.2011 went to the said hospital, where father of his wife and 4 - 5 unknown persons met him outside the hospital and abused him badly and also threatened him to kill. The said incident was witnessed by Izhar Alam and Tanvir Alam, who were present there. The petitioner made a complaint before the Deputy Inspector General Police, Kanpur Nagar and on his direction the police of Police Station Kohana reached on the spot and assured him for taking action, but no action was taken and only this much was told that enquiry was being done. It is also alleged that the wife of the petitioner and her parents and other family members are threatening to kill him or to implicate him in some false case.

After taking cognizance of the said complaint, the learned Magistrate recorded the statement of the complainant u/s. 200 Cr.P.C. and also recorded the statements of two witnesses namely Izhar Alam and Tanvir Alam u/s. 202 Cr.P.C.

On behalf of the applicant an affidavit along with several annexures including several investigation reports of the Police Station concerned, enquiry reports of Circle Officers and report of C.M.O. and Medical Board were also filed.

The learned Magistrate after considering the allegations made in the complaint, statement of the complainant, statements of the witnesses and several complaints and reports filed along with the affidavit has rejected the complaint filed by the petitioner vide the order impugned dated 21.01.2013 finding no prima facie basis to summon the accused persons (opposite parties No. 2 to 5).

Learned counsel for the petitioner has submitted that the learned Magistrate has wrongly rejected the complaint filed by the petitioner without properly considering the entire material on record and the fact that according to medical report also no external injury was found to his wife, opposite party No. 2, whereas it was alleged by her and her parents that due to slip at the house, she fell down and in the morning when bleeding started, she went to Laxmi Sehgal Nursing Home for her treatment. It is also submitted that from the allegations made in the complaint and the statement of the complainant and witnesses along with other material, prima facie case was made out against the opposite parties No. 2 to 5 for the offences punishable under Section 315, 504, 506 IPC, but the learned Magistrate has illegally rejected the complaint filed by the petitioner under Section 203 Cr.P.C. It is also contended that the learned Magistrate has wrongly considered the FIR lodged by the opposite party No. 4, father-in-law of the petitioner against the petitioner and his family members for the offences under Sections 498A, 323, 504, 506 IPC and Section 3/4 of the Dowry Prohibition Act to be the basis of rejecting the complaint of the petitioner, whereas the said FIR was got lodged after the present complaint was filed by the petitioner against the opposite parties No. 2 to 5.

On the other hand learned counsel for the opposite parties No. 2 to 5 and learned AGA for the State have supported the order impugned passed by the learned Magistrate and have contended that the learned Magistrate has rightly and legally rejected the complaint filed by the petitioner under Section 203 Cr.P.C. after considering the entire material on record including the enquiry reports of two Circle Officers and medical report of the expert Doctor and Medical Board. It has also been contended that the FIR was also got lodged by the opposite party No. 4, Sheik Nuruddin, father of Sumaira Sheik @ Simmi, opposite party No. 2, wife of the petitioner against the petitioner and his family members for the offences under Sections 498A, 323, 504, 506 IPC and Section 3/4 of the Dowry Prohibition Act on correct facts and although it was got lodged on 25.01.2012, but the incident took place during the period 22.05.2010 to 08.11.2011 and during enquiry made by the police officers and officials on the complaint made by the petitioner, the correct fact had come and the allegations made by the petitioner were not found to be true.

I have considered the said arguments and have perused the order impugned along with all other material available on record.

The learned court below while passing the order impugned dated 21.01.2013 whereby rejecting the complaint filed by petitioner under Section 203 Cr.P.C. has considered the allegations made in the complaint, statements of the complainant and witnesses along with other materials including the report of Shri Ram Lal Rai, Circle Officer, Swaroop Nagar, Kanpur Nagar on the complaint of the petitioner, report of Police Station Kohana, report of Circle Officer Colonelganj, Kanpur Nagar, report of Medical Board including the medical expert and all other materials available on record.

The allegations of the petitioner were that the opposite parties No. 3 and 4 namely Sheik Shahida Begum and Sheik Nuruding, mother-in-law and father-in-law of the petitioner took her wife namely Sumaira Sheik @ Simmi (opposite party No. 2) on 04.07.2011 to their house without consent of the petitioner and at that time his wife was pregnant for 5 months. It has also been alleged by the petitioner that his wife, father-in-law and mother-in-law without the consent of the petitioner got the foetus aborted in Laxmi Sehgal Nursing Home and when after knowing the said fact the petitioner reached to the said hospital, he was abused and misbehaved by his father-in-law and his 4 - 5 other associates and they also threatened to kill him and as such, he was compelled to run away from there. It has also been alleged that the said incident was witnessed by Izhar Alam and Tanvir Alam, who were present there. It has also been alleged that the complaint was also made to the Deputy Inspector General of Police, Kanpur Nagar.

From perusal of the record it appears that on the complaint made by the petitioner to Deputy Inspector General of Police, Kanpur Nagar, an enquiry was got conducted and after completing the enquiry a detailed report was submitted by Shri Ram Lal Rai, Circle Officer, Swaroop Nagar, Kanpur Nagar. During the said enquiry, statement of the complainant, his wife, Sumaira Sheik and the statement of his father-in-law and mother-in-law and other witnesses were recorded and certain documentary evidence were also considered and it was concluded that Smt. Sumaira Sheik @ Simmi was married with Syed Izhar Husain, petitioner on 22.05.2010 according to Muslim rites and rituals. According to Sumaira Sheik, her husband was wine addict and after 5 - 6 months of the marriage, he took her to Delhi, where after taking liquor along with his friends was telling her also to take liquor and compromise with his friends, due to which quarrel took place between them and she asked him to go to her parental house at Kanpur Nagar. Her husband on 04.07.2011 at about 10.00 PM left her at the door of her parents'' house and went away. At that time she was pregnant for 4 months. She also stated that on 26.07.2011 when she was coming down from terrace of her house for urination, due to rain her legs were slipped and she fell down and in the morning when bleeding started she went to Laxmi Sehgal Nursing Home for treatment, where ultrasound was also made and the foetus in her womb was found to be dead, hence the dead child was got born. It has also been stated that the petitioner along with his father had come to see her, where some quarrel took place between the petitioner and her parents, for which the information was sent to Kohana Police Station and after investigation the allegations made by the petitioner were not found to be established.

On the record, an enquiry report dated 11.09.2011 submitted by the Circle Officer, Colonelganj is also available, which shows that during the said enquiry also the Circle Officer, Colonelganj, Kanpur Nagar got recorded the statements of the petitioner, his mother-in-law, wife and the statement of Dr. Shobha Viz and it was concluded that Sumaira Sheik, wife of the petitioner was pregnant for four months and her treatment was already going on in Laxmi Sehgal Nursing Home by Dr. Shobha Viz. On 27.07.2011, the said Sumaira Sheik went to the Doctor along with her parents and told that she fell down from the terrace, due to which she was suffering from fever and pain in abdomen, on which she was admitted and ultrasound was got conducted and it was found that she was pregnant for 17.2 weeks. Dr. Shobha Viz has also told that she tried her best to save the child in womb. The petitioner Syed Izhar Husain had also come along with police on 30.07.2011 and had made allegations for killing the foetus, whereas at that time the foetus was in womb, which was also shown to the petitioner. On 31.07.2011, the dead child was born from wife of the petitioner, which was placed in a Jar in the Hospital and subsequently it was handed over to the family members. The Circle Officer, Colonelganj, Kanpur Nagar has concluded in his report that according to statement of the Doctor and Sumaira Sheik (wife), it was clear that full attempt was made to save the child in womb, but it could not be saved and Sumaira Sheik has also told that if she wanted to make abortion, she would have done it earlier. The Circle Officer, Colonelganj has also opined that regarding giving of treatment to save the child in womb by Dr. Shobha Viz may be got independently enquired by the medical expert and the same may be properly made by the Chief Medical Officer.

On the record the report of Medical Board constituted by Chief Medical Officer is also available, according to which it appears that the petitioner was informed by Chief Medical Officer on 11.11.2011 in writing about the constitution of the Medical Board and also told the petitioner to give his statement after presenting before the Board along with entire evidence. According to said report of Medical Board, it has been found that there was no evidence of abortion being done about the child in womb of Smt. Sumaira Sheik, wife of Syed Izhar Husain and it appears that the child in womb was died due to some unknown reasons and due to which abortion was automatically made although there was no sign of any injury on the external part of the body of Sumaira Sheik. According to said medical report it appears that abortion was not got made by Sumaira Sheik with the connivance of her parents or Dr. Shobha Viz, but the said child in womb was died due to some unknown reasons.

So far as the FIR lodged by opposite party No. 4, Sheik Nurruddin, father of opposite party No. 2, Sumaira Sheik @ Simmi under Sections 498A, 323, 504, 506 IPC and Section 3/4 of the Dowry Prohibition Act is concerned, the said FIR was lodged on 25.01.2012 regarding the occurrence alleged to have been taken place during 22.05.2010 to 08.11.2011, which was registered as case crime No. 48 of 2012 against the petitioner and his family members. In this matter the application under Section 156(3) Cr.P.C. was filed by the petitioner on 21.01.2012, but during investigation and enquiry on the complaint made by the petitioner, the entire facts as stated in the FIR have also come in the statement of the opposite party No. 2, wife of the petitioner and other witnesses and after enquiry and investigation made by the police, the allegations made by the petitioner were not found to be correct. The learned Magistrate while rejecting the complaint of the petitioner has only mentioned the lodging of the said FIR in his order impugned, but the same has not been made the basis to reject the complaint of the petitioner.

The learned Magistrate after considering the entire material on record has come to the conclusion that the abortion of the wife of the complainant/petitioner was not got done forcibly by the opposite party No. 2 (wife) herself or with connivance of her father and mother or Dr. Shobha Viz. It has also been observed that from the enquiry report of Circle Officer, it is clear that the petitioner/complainant himself had left her wife (opposite party No. 2) to her Mayaka. It has also been held by the learned Magistrate that the allegations made by the complainant/petitioner against the opposite parties No. 2 to 5 were found to be baseless and accordingly finding no prima facie sufficient basis to summon the opposite parties No. 2 to 5 has rejected the complaint filed by the petitioner under Section 203 Cr.P.C.

In view of the aforesaid considerations and discussions, I find no infirmity, illegality, irregularity or jurisdiction error in the order impugned passed by the learned Magistrate and this petition appears to be meritless and is liable to be dismissed.

Accordingly, the petition is dismissed.