MST. SALEEM BIBI Versus FAZAL HUSSAIN

This is a petition for quashment of the proceedings under section 498, P. P. C. pending in the Court of Mr. Nasir Javid, M. I. C., Gujrat against the petitioners.

2. The brief facts of the case are that the respondent filed a complaint under sections 498/315/571/419/420 and 380, P. P. C. against the petitioners. The learned Magistrate after recording the preliminary evidence summoned the petitioners under section 498, P. P. C. only, vide his order dated 13‑12‑1974. It may be mentioned here that there is no section 571 in the Penal Code and it may be some other section.

3. In support of this application learned counsel for the petitioners submitted that petitioners 1 and 3 are women and they cannot be summoned under section 493, P. P. C. as accused persons. It was also submitted that the proceedings cannot be quashed partly, therefore, it had to be quashed qua Ghulam Hussain and Khushi Mohammad petitioners.

4. Learned counsel for the respondent vehemently argued that the proceedings are at the initial stage and, therefore this Court is not competent to quash the proceedings because the evidence in the case is yet to be recorded by the learned Magistrate.

5. I see force in the contentions of the learned counsel for the petitioners. It is a well settled law now that a woman cannot be an accused person in a case under section 497/498, P. P. C. Therefore, the learned Magistrate was not competent to summon petitioners 1 and 3, who are women, as accused persons.

6. So far as the other ground is concerned, as laid down in 1974 P Cr. L J 84 Note 135, the complaint cannot be quashed partly and partly allowed. As the learned Magistrate was not competent to summon the petitioners 1 and 3 as accused persons, therefore, the proceedings have to be quashed. And in view of the above cited case, the proceedings cannot be quashed partly. therefore, I have no option but to quash the proceedings in so far as Ghulam Hussain and Khushi Mohd. petitioners are concerned.

9. The result of the above discussion is that this petition is accepted and the proceedings under section 498, P.P.C. against all the petitioners area quashed.

Petition allowed.