The Allahabad High Court has refused to quash the summons issued under Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act.
The Court said that under section 494 I.P.C falls within chapter XX of Indian Penal Code and as per provisions of Section 198 Cr.P.C, the Court cannot take cognizance of offence punishable under chapter XX of I.P.C except upon a complaint made by some person aggrieved by the offence.
A Single Bench of Justice Raj Beer Singh passed this order while hearing an application under section 482 filed by Jaan Mohd.
The application u/s 482 Cr.P.C has been filed with the prayer to quash the entire proceedings, including charge-sheet dated 06.07.2023 and cognizance/summoning order dated 06.10.2023, of Criminal Case under Section 494 IPC and Section 3/4 The Muslim Women (Protection of Rights on Marriage) Act, 2019, P.S- Khorabar, District- Gorakhpur, pending in the court of A.C.J.M-Ist, Gorakhpur.
It has been submitted by the counsel for the applicant that the impugned proceedings are nothing but an abuse of the process of the Court and no prima-facie case under Section 3/4 Muslim Women (Protection of Rights on Marriage) Act, 2019 (M.W Act) is made out.
The allegation that applicant has pronounced triple talaq by way of Talaq-e-Bidat is wholly false, rather the applicant has divorced the opposite party no 2 by sending three notices each after a lapse of one month and, therefore, the said divorce cannot be termed as instantaneous divorce (Talaq-e-Bidat), and thus, the provisions of M.W Act are not attracted.
It was also stated that the applicant has also filed a suit seeking declaration of talaq between the parties. Referring to facts of the matter, it was submitted that no case under Section 3/4 M.W Act is made out, and thus, the impugned proceedings are liable to be quashed.
A.G.A has opposed the application and submitted that during investigation, in her statement the informant has clearly stated that on 21.07.2022 at 11:00 AM, the applicant has pronounced triple talaq by pronouncing the same simultaneously and deserted her. Similarly, Salman Khan, who is the son of applicant, has also made a similar statement. It was submitted that in view of these facts, it cannot be said that no prima-facie case is made out against the applicant.
The Court observed that,
The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the CrPC.
In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs Ch Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.
It has been held that if a prima facie case is made out disclosing ingredients of the offence, court should not quash the charge sheet/complaint. It is equally well settled that at this stage questions of fact cannot be examined and a mini trial cannot be held. At this stage, the matter cannot be examined meticulously.
The Court further observed that,
In the matter, as per prosecution version, opposite party no 2 was legally wedded wife of applicant and that on 21.07.2022 at 11:00 AM, the applicant has pronounced triple talaq in one go and thereby the opposite party no 2 was divorced by way of Talaqe-Biddat, whereas the case of applicant is that he has pronounced talaq by way of sending three notices at the interval of one month each, and thus, applicant has not divorced the opposite party no 2 by way of Talaq-e-Bidat. It is apparent that the matter involves a question of fact whether the talaq was pronounced by way of Talaq-e-Bidat or otherwise.
It is well-settled that at this stage, matter cannot be examined meticulously. In fact, the submissions raised by counsel for the applicant call for determination on questions of fact, which may adequately be adjudicated only by the trial Court. The submissions made on the point of law can also be more appropriately gone into by the trial Court. Thus, at this stage, it cannot be said that no prima-facie case under Section 3/4 M.W Act is made out. Hence, prayer for quashing of proceedings and charge-sheet is refused.
“In so far, the summoning of applicant under Section 494 I.P.C is concerned, it may be pointed out that Section 494 I.P.C falls within chapter XX of Indian Penal Code and as per provisions of Section 198 Cr.P.C, the Court cannot take cognizance of offence punishable under chapter XX of I.P.C except upon a complaint made by some person aggrieved by the offence. In this matter, there is nothing to show that any such complaint was made by the opposite party no 2.
It appears that opposite party no 2 has lodged First Information Report under Section 494 I.P.C and Section 3/4 W.M Act and after investigation police have submitted a charge-sheet for these offences and accordingly the trial Court has taken cognizance for these offences. Thus, so far the summoning of applicants under Section 494 I.P.C is concerned, the same is barred by the provision of Section 198 Cr.P.C. Hence, the summoning of the applicant for offence under Section 494 I.P.C is not in accordance with law”, the Court also observed while disposing the application.
“In view of aforesaid, the summoning of applicant under Section 494 I.P.C is quashed and the impugned summoning order stands modified to that extent. The case under Section 3/4 M.W Act would proceed further in accordance with law”, the Court ordered.