Court No. - 70
Case :- APPLICATION U/S 482 No. - 3839 of 2019 Applicant :- Adil And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Saleem Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of leaned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the order dated 02.11.2018 passed by Ist Additional Session Judge, Muzaffar Nagar in Criminal Revision No.204 of 2018, whereby the applicants have been summoned by summoning order dated 18.6.2018 in Criminal Case No. 461/9 of 2018, under Sections 363, 376 (2) (g), 506 IPC, Police Station Ratanpuri, District - Muzaffar Nagar pending in the court of Judicial Magistrate Ist, Muzaffar Nagar.
Learned counsel for the applicants submitted that:-
(i) On 14.5.2012 opposite party no.2 lodged FIR against the applicants as Case Crime No. 94 of 2012, under Sections 363, 366, 376 IPC, Police Station Ratanpuri, District Muzaffar Nagar.
(ii) The prosecutrix was medically examined on 4.6.2012. In the medical examination report, she was found aged about 19 years.
(iii) Statement of the prosecutrix was recorded on 5.6.2012, in which, she has not levelled any allegation against the applicants.
(iv) On 16.9.2012, Investigating Officer submitted final report, which was objected by the father of the prosecutrix by filing protest application dated 5.6.2016, which was allowed and again Investigating Officer submitted the final report dated 26.10.2016. This time also the father of the prosecutrix filed protest application 13.1.2017, which has been treated by learned Magistrate as complaint.
(v) Learned Magistrate adopting the procedure of complaint case, recorded the statement of complainant under Section 200 Cr.P.C. and witnesses, namely, Sashufata (prosecutrix) as PW-1 and Hasmat as PW-2 under Section 202 Cr.P.C. on 19.12.2017. There is contradiction in the statement of the prosecutrix recorded under Section 164 Cr.P.C. on 5.6.2012 and under section 200 Cr.P.C. recorded on 19.12.2017, therefore, summoning order is bad in law.
Per contra, learned AGA for the State submitted that considering the material evidences and allegations against the applicants on record, as on date, as mentioned in the impugned complaint, the statement of the complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C., the cognizable offence against the applicants is made out. Under the facts and circumstances of the present case as well as materials on record against the applicants, the criminal proceedings against the applicants cannot be said to be abuse of the process of the Court.There is no illegality in the impugned orders dated 02.11.2018 and 18.6.2018. It is submitted that this application is liable to be dismissed.
After having heard the learned counsel for the parties and perusing the entire record, I find that from the statement of victim recorded under Section 200 Cr.P.C. appended as Annexure No.16 with the application, it is apparently clear that specific allegation of rape has been levelled by the victim Sashufta against the applicants. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sprangly, only in such a appropriate cases, where uncontroverted allegations made in the complaint and the evidence relied in support of same, do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.
It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused.
In view of above, this Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. There is no manifest error of law in the impugned orders dated 02.11.2018 and 18.6.2018. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicants is not liable to be quashed. The relief as claimed by the applicants in this application is accordingly refused.
At this stage, learned counsel for the applicants submitted that in case some protection is granted by this Court, the applicants will surrender before the concerned court below. The learned Additional Government Advocate for the State does not dispute such prayer of the applicants.
Considering the last prayer made by the learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within 45 days from today and apply for bail, the bail application of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with settled law. For the period of 45 days from today, no coercive action shall be taken against the applicants.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 29.1.2019 AK Pandey