Court No. - 44
Reserved on 16th August, 2018 Delivered on 21st August, 2018 Case :- APPLICATION U/S 482 No. - 27678 of 2018 Applicant :- Abdul Kadir Alias Kadir Ansari Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ganesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Ganesh Kumar, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Amit Kumar, Advocate who has put in appearance on behalf of the opposite party no.2 by filing his Parcha in Court today.
2. This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 6th July, 2018, passed by the Special Judge (POCSO Act)/Additional Sessions Judge, Court No.1, Basti in Complaint Case No. 12 of 2017 (Ramkali vs. Kadir Ansari), under Sections 354-B, 506 I.P.C. And 7/8 POCSO Act, Dubauliya, District Basti as well as the entire proceedings of above mentioned complaint case.
3. Learned counsel for the applicant submits that in respect of the incident, which occurred on 26th December, 2016, a first information report dated 13th March, 2017 was lodged at Police Station Dubauliya, District Basti, which was registered as Case Crime No. 117 of 2017, under Sections 354-B, 506 I.P.C. and 7/8 POCSO Act, Police Station Dubauliya, District Basti. During the course of the investigation of the above mentioned case crime number, the statement of the prosecutrix was recorded in terms of Section 164 Cr.P.C., which is at page 34 of the paper book. The prosecutrix has not supported the prosecution version of the case, as unfolded in the first information report. Upon completion of the statutory investigation, as contemplated under Chapter XII Cr.P.C., the Investigating Officer formed an opinion that no criminality can be said to have been committed by the accused persons. Accordingly, he submitted the final report dated 21st March, 2017. Upon submission of the aforesaid final report, a protest petition was filed by the first informant i.e. the complainant-opposite party no.2 herein on 22nd September, 2017. This protest petition filed by the complainant-opposite party no.2 was allowed, the final report was rejected and the protest petition was treated as a complaint and consequently, to be tried as a complaint case vide order dated 21st September, 2017. Thereafter the court below vide order dated 6th July, 2018 has summoned the present applicants.
4. Learned counsel for the applicant submits that in the present case, the victim herself has been inconsistent in respect of the incident, which occurred on 26th December, 2016. Her statement under Section 200 Cr.P.C. is totally contradictory to the statement under Section 164 Cr.P.C. Placing reliance upon Section 145 of the Indian Evidence Act, learned counsel for the applicant submits that even though the prosecutrix will have an opportunity to explain the aforesaid contradiction so occurring in her statement at the time of trial but that by itself it cannot be a ground to sustain the criminal proceedings against the applicant in absence of any medical evidence to corroborate the allegations made in the complaint. He has further invited the attention of the Court that the first information report dated 13th March, 2017 has been lodged in respect of the incident dated 26th December, 2016. The same has been engineered in opposition to the first information report dated 15th October, 2016 lodged by the applicant against Gaya Prasad, Ram Chet and Laxmi Devi under Sections 323 and 504 I.P.C.
5. All the contentions raised by the applicant's counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
6. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
7. Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR; 1963 SC 1430 (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker; AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi; 1976 3 SCC 736 may be usefully referred to in this regard.
8. The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab; AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal; 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi; 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section- 482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
9. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
10. The submissions made by the applicant's counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
11. The prayer for quashing the same is refused as I do not see any abuse of the Court's process either.
12. However, it is provided that if the bail has not been obtained as yet, the applicant may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application of the applicant in the light of the judgement of this court in the case of Brahm Singh and Ors. Vs. State of U.P. and Others, reported in 2016 (7) ADJ 151.
13. As an interim measure, it is provided that for a period of two months from today or till the applicant appears before the court below, whichever is earlier, no coercive action shall be taken against the applicant.
14. With the above observations, this application stands disposed off.
(Rajeev Misra, J.) Order Date :- 21.08.2018 Sushil/-