Court No. - 44
Case :- APPLICATION U/S 482 No. - 25663 of 2018 Applicant :- Vakeel Khan And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mohammad Mustafa Counsel for Opposite Party :- G.A.,Ganesh Shanker Srivastava
Hon'ble Rajeev Misra,J.
Heard Mr. Mohammad Mustafa, the learned counsel for the applicants, the learned A.G.A. for the State and Mr. Ganesh Shanker Srivastava, the learned counsel appearing for the opposite party No.2.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 12.04.2018 passed by Chief Judicial Magistrate, Siddharth Nagar, in Complaint Case No.57 of 2018 (Smt. Rubeena vs. Arif Khan and others), under Section 376 I.P.C., P.S. Mishrauliya, District Siddharth Nagar as well as the entire proceedings of the above mentioned complaint case.
Learned counsel for the applicants submits that from the perusal of the complaint filed by the opposite party No.2, copy of which is on the record at page 61 of the paper book, the case setup by the complainant opposite party No.2 appears to be highly improbable. He further submits that the allegations made in the complaint to the effect that one Arif Khan induced the complainant by making some after to grant divorce to her husband by means of a panchayat cannot be believed. It is next contended that as per the allegations made in the complaint itself, the complaint herself accompanied the said Arif Khan and therefore, there was no deliberate act on the part of the applicants in committing the alleging crime. The statement under Section 164 is the solitary piece of evidence upon which reliance is placed by the learned counsel for the respondent in opposition to the present application under Section 482 Cr.P.C.
The Apex Court in the Case of Vineet Kumar And Ors vs State Of U.P. and Anr 2017 13 SCC 369 has clearly observed that merely on the basis of the statement of the prosecutrix under Section 164 Cr.P.C. and without there being any medical evidence to support the charge, the proceedings are liable to be quashed. In the case in hand there is no medical evidence to even remotely suggest the occurrence of the alleged crime under Section 376 I.P.C.
The learned counsel for the applicants has invited the attention of the Court at page 50 of the paper book wherein a categorical recital is contained to the effect that the prosecutrix has herself refused to get herself medically examined. On the equitably stability of the notice above, it is urged by the learned counsel for the applicants that the present complaint case lodged by the opposite party No.2 is wholly malicious. He further elaborates that proceedings under Section 498A etc, Section 125 Cr.P.C., Section 12 of the Domestic Violence Act were initiated by the complaint opposite party No.2 against her husband Farookh Khan. The allegations made in the application under Section 125 Cr.P.C. and the averments made in the complaint are totally contradictory to each other which remains unexplained. In the light of the facts as noted herein above, the applicants have made out a case for the grant of interim order.
Consequently, it is provided that the further proceedings of the above mentioned complaint case shall remain stayed till further orders.
Notice on behalf of the opposite party No.1 has been accepted by the learned A.G.A.
Mr. Ganesh Shanker Srivastava has put in appearance on behalf of the opposite party No.2.
All the respondents may file their respective counter affidavits within a period of three weeks.
The applicants will have two weeks thereafter to file rejoinder affidavit.
List after the expiry of the aforesaid period.
However, it is made clear that the pendency of the present application will not be taken as a ground to defer the proceedings of other cases pending before the Court below in between the complainant-opposite party No.2 and her husband.
Order Date :- 21.8.2018 cks