Allahabad High Court
Ritesh Gupta vs State Of U.P. And Another on 13 August, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:131160 Court No. - 74 Case :- APPLICATION U/S 482 No. - 19880 of 2020 Applicant :- Ritesh Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Alok Kumar Kushwaha,Ashok Kumar Nigam Counsel for Opposite Party :- Ambuj Kumar Shukla,Arun Kumar Singh,G.A.,Vinay Prakash Shukla Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Rajkumar Sharma, Advocate holding brief of Shri Alok Kumar Kushwaha, learned counsel for applicant, Shri Arun Kumar Singh, learned counsel for opposite party no. 2 and learned A.G.A for State.
2. The present application under Section 482 Cr.P.C. has been filed on behalf of applicant to quash the summoning order dated 16.05.2019, passed by Additional Chief Judicial Magistrate, Court No. 18, Allahabad in Complaint Case No. 172 of 2016 (Shishr Jaiswal Vs. Ritesh Gupta) u/s 498/504 I.P.C., Police Station- George Town, District- Allahabad, including the entire proceedings of the case.
3. The applicant before this court was summoned by the impugned order dated 16.05.2019 to face trial under Sections 498 and 504 I.P.C. and for reference Sections 498 and 504 I.P.C. are reproduced hereinafter respectively:-
Section 498 I.P.C.:-
"Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 504 I.P.C.:-
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
4. Initially the complainant has lodged an application under Section 156(3) Cr.P.C. against the present applicant alleging that he has enticed away his wife as well as has committed other offences also. The above referred application was directed to be considered as a complaint. Thereafter, complainant recorded his statement under Section 200 Cr.P.C., however, complainant was not able to produce any witness in support of his statements, though certain documents were filed. For reference the statement so recorded under Section 200 Cr.P.C. is reproduced hereinafter:-
"???? ???????? ???? 200 ???????????? ??????-13.11.2017 ???- ????? ??????? ????? ???? ????? ?????? ???? 45 ????, ????- ???????? ?????, ???- 95/2, ??????? ???, ??????? ???, ???????? ????? ????, ???????? ?? ?? ???????? ??? ???? ???? ???? ?? ???? ???? ???? ?????? ???? ???? ??????? ?? ?????? ???? ????? ?? 15.12.2001 ?? ??? ??? ???? ????? ????? ?????? ?? ???? ??? ?? ???????, ?????? ? ???????? ?? ??? ???? ??? ?? ??? ???? ??? ??? ????? ????? ?????? 12.6.15 ?? ???? ????? ???? ??? ??????? ?????? ???? ??????? ?????? ?????? ?? ??? ???? ????? ??? ???, ???? ??? ???? ??? ???? ???? ?? ????? ?????? ?? ????? ?? ????? ?? 30 ??? 2015 ?? ???? ????? ????? ?????? ?? ??? ????? ??? ??? ???? ????? ?? ???? ????? ?????? ?? ?? ??? ????? ??? ???? ?? ???? ????? ?????? ?? ????? ?? ???? ???? ??? ????? ?????? ?? ?? ???? ????, ?????? ? ?????? ??? ??? ???? ???? ????? ?????? ???? ?????? ??? ?? ????? ?????? ?? ??? ???? ????? ???? ?????? ??????? ?? ?????? ???? ???? ????? ?? ???? ?? ??? ??, ??? ???? ????? ????? ?????? ?? ????? ?? ????? ?? ?? ????? ?????? ?? ??? ?? ?? ??? ??? ??????? ?????? ?? ??? ???? ?? ?? ????? ?????? ?? ??? ???? ????? ?? ???? ??????? ??? ????? ?????? ???? ???? ???? ? ??? ?? ????? ?? ??????? ?? ???? ???"
5. The impugned order is also reproduced hereinafter:-
"???????? ??? ???? ??????? ?? ??????? ???????? ?? ???? ??? ???????? ?? ??????? ?????
???????? ??????, ??????? ?????? ????? ??????? ?????? ??????? ????? ?????? ?? ??????? ????? ???? ??? ?? ??? ????? ??????? ?? ??? ?? ?????? ??? ???? ?? ????? ?? ??? ???
?????????? ?? ????? ??? ??????? ?? ???? ???????? ???? 200 ?????????? ??? ???? 202 ?????????? ?? ???????? ??????? ?????? ???? ???? ???????? 09.01.2018 ?? ?????? ?? ???-??? ??? ???? ?????? ??????? 1 ?? 5, ???? ?????? ?? ????, ????? ?? ?????? ?? ???? ?????, ????? ?????? ???????? ?? ???? ?????? ??? ???? ?????? ????????? ?? ?????, ???????? ?? ???? ???????? ???????? ?? ?????? ?? ??? ???
???????? ?? ?????? ?? ?????? ?? ?? ????? ??? ??????? ?? ?????? ????????????? 156(3) ?????????? ???????? ???? ??? ?? ???? ???????? ?????? ???? ???????? 09.02.2016 ?? ?????? ?? ?????? ?? ??? ??? ???? ???? ?? ???? ????? ???? ???? ??????? ?????? ???? ???? ?? ??????? ??????? ??? 75/2016 ??????? ?? ??? ?? ?? ??????? ???????? ?????? ?????? ?? ?? ???? ???
??????? ?????? ???????? ??????? ???????? ???? 200 ?????????? ??? ?? ?????? ??? ?? ??? ???? ?? ?? ???? ???? ???? ?????? ???? ???? ??????? ?? ?????? ???? ????? ?? ?????? 15.12.2001 ?? ??? ??? ???? ????? ????? ?????? ?? ???? ??? ?? ????????, ?????? ? ???????? ?? ??? ???? ??? ??????? ?? ??? ?? ?? ??? ???? ?? ?? ?????? 12.06.2015 ?? ???? ????? ???? ??? ??????? ?????? ???? ??????? ?????? ?????? ?? ??? ???? ????? ??? ??? ???? ??? ???? ??? ???? ???? ?? ????? ?????? ?? ????? ?? ????? ?? 30 ??? 2015 ?? ???? ????? ????? ?????? ?? ??? ????? ??? ??? ???? ????? ?? ???? ????? ?????? ?? ?? ??? ????? ??? ???? ?? ???? ????? ?????? ?? ????? ?? ???? ???? ??? ??? ?????? ??????? ?????? ???????? ??????? ??????? ???????? ???? 202 ?????????? ??? ??????? ?? ????? ?? ?????? ???? ??? ??? ??????? ????? ?? ???? ?? ???????? ????? ?????? ?? ???? 498,504 ????????? ?? ???????? ??? ??? ???? ????? ????
????
???????? ????? ?????? ?? ???? 498,504 ????????? ?? ???????? ?????? ???? ???? ???? ???? ??? ??????? ????? ????? ?????? ???? ???????? ?????? ?????? ???????? ?????? 17.06.2016 ?? ??? ???
(???????? ???) ??? ????? ??????? ??????????, ???? ???6 ?????????"
6. Learned counsel for applicant submits that even after considering statement of complainant, basic ingredients of Sections 498 and 504 I.P.C. are missing and prima facie no case is made out against the applicant as there is no allegation that the applicant has took away or enticed away the wife of complainant with the intention that she may have illicit intercourse or concealed or detained her with that intent. Even there is no specific allegation that wife of complainant went along with the applicant or stayed with him. He also refers that ingredients of Section 504 I.P.C. are also not made out since there is no averment that the nature of threat was of such extent that it may provoke the complainant to breach peace.
7. The aforesaid submissions were opposed by learned counsel for opposite party no. 2 and he refers that after the application was filed by the complainant under Section 156(3) Cr.P.C on 18.01.2016, the wife of present applicant has lodged an FIR wherein it was referred that present applicant had illicit relationship with wife of opposite party no. 2. i.e. the complainant, however, outcome of the said FIR is not on record.
8. Learned counsel for opposite party no. 2 also submits that the documents which were necessary to support the complainant's case were placed on record, such as whats app chat records as well as tickets on which allegedly complainant's wife traveled to Mumbai from Lucknow.
9. Heard Counsels for the parties and perused the record. The court is considering whether the impugned order passed under Section 204 Cr.P.C. has assigned requisite reasons that there are sufficient grounds to proceed against the applicants or not, as well as that even on basis of material before the learned Magistrate, basic ingredients of Sections 498 and 504 I.P.C. are even made out or not.
10. The complainant in the present case made an allegation against the applicant that he has enticed away his wife and took her to Mumbai. The said allegation is based on the information given by the applicant's wife, however, she has not been examined by the complainant under Section 202 Cr.P.C. Therefore, the source of the information remained absolutely uncorroborated. Even if it is considered that wife of the complainant has traveled from Lucknow to Mumbai, it would not fall within four corners of Section 498 I.P.C., since much more has to be shown that there was an intention to took her away or entice away as well as the intention was for a particular purpose i.e. to make illicit relationship, however, said allegations are absolutely silent either in the complaint or in statement of the complainant or in the impugned order. Therefore on the basis of the material available the ingredients of Section 498 I.P.C. are not made out.
11. So far as Section 504 I.P.C. is concerned as referred above, there must be an allegation that the nature of threat or abusive language was to the extent, that it could provoke the complainant to breach peace, however, as referred above, the allegations does not mention to that extent. In this regard the Court takes note of judgement passed by Supreme Court in Mohammad Wajid and Anr. Vs. State of U.P. and Ors. 2023 INSC 683.
12. Outcome of above discussions is that the impugned order has attained infirmity, since ingredients of Sections 498 and 504 I.P.C. are absolutely not made out, even the source of allegation was not examined. The Court cannot take any cognizance on contents of the FIR lodged by the wife of the present applicant, wherein she has referred about the allegations of illicit relationship since not only the outcome of it is not on record but it was not part of pleadings before the learned trial court who has passed the impugned order.
13. In the aforesaid circumstances, aforesaid impugned order is quashed and the present application is allowed.
14. Registrar (Compliance) to take steps.
Order Date :- 13.8.2024 Saurabh