Court No. - 65
Case :- APPLICATION U/S 482 No. - 26419 of 2019 Applicant :- Ajay @ Monu Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Abhishe Pandey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Abhishek Pandey, learned counsel for the applicant, Sri G.P Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet no.371 of 2019 dated 28.04.2019 as well as cognizance order dated 22.05.2019 and stay the entire proceedings of Case No.665 of 2019 (State vs. Ajay) arising out of Case Crime No.0295 of 2019, under section 326-A, 328, 376, 506 IPC and section 67-D of the Information Technology Act, 2000, Police Station Deoband, District Saharanpur pending before the court of Additional Chief Judicial Magistrate, Deoband, District Saharanpur.
It is argued by the learned counsel for the applicant that the accused- applicant has been falsely implicated by opposite party no. 2 (victim). To prove the false implication has drawn attention to Parcha of case diary which is at page at 27 of the paper book in which it is recorded by the Investigating Officer that when he reached at the clinic of Dr. J.K. Jain, mother of the victim along with victim and other relatives were present, where the victim has clearly admitted that while she was sweeping the floor with aid of broom, the acid bottle had fallen on her because of which she got badly injured and that in order to take political advantage, one Vikas Tyagi belonging to Bajrang Dal had made publicity that a Muslim boy has thrown acid on the victim so that communal disharmony could spread. He has also drawn attention of the court that thereafter the victim had borrowed money from the accused for getting herself treated and the applicant accused had advanced her Rs.one lac on 4.7.2016 and thereafter for plastic surgery of the victim, he had further given Rs.2,35,000/- to her and statement of bank account has been filed at page 31-32of the paper book. Therefore, he pointed out that when he demanded the said amount back, the present false case has been imposed against the accused- applicant. Therefore, the police has not investigated the case properly and has erroneously submitted charge sheet, which needs to be quashed .
On the other hand, learned A.G.A. despite having been given opportunity to file counter affidavit specifying medical examination report of the victim, has failed to file counter affidavit and has stated that despite letter having been sent to SSP concerned, no reply has been given by the SSP. He has pointed out that in the statement of the victim recorded under section 161 Cr.P.C., she has clearly stated that on 29.6.2015 at about 12.00 noon the victim was called by the accused at his room giving her assurance that all the indecent video clipping, which was made by him earlier, would be deleted by him in her presence and when the victim reached there, the accused had already kept there acid which was thrown on her and on the screaming of the victim, the accused fled away and thereafter she became seriously injured. She has undergone treatment for about two months. It is also stated that the accused had earlier given a sleeping inducing drug to the victim and when the victim became unconscious, the accused committed rape upon her and also prepared video clipping. Therefore, it was argued that the said statement of the victim cannot be disbelieved particularly when the charge-sheet has been submitted after investigating the case by the Investigating Officer, hence quashing of the criminal proceedings should be refused.
I have gone through FIR, in which the victim has mentioned that the accused was having access to her family and he had given her false promise that he would marry her. On 1.5.2015 at about 1.00 A.M., he came to her house along with juice of sugarcane which was served to her and by consuming it, she fainted and thereafter the accused committed rape upon her and he had also made video clipping and thereafter he was continuously exploiting her. After investigation in the matter, the police has submitted charge-sheet against the accused. The statement which has been recorded by the Investigating Officer cannot be disbelieved at this stage in proceedings u/s 482 Cr.P/C and it cannot be denied that cognizable offence is made out on the basis of evidence gathered by the Investigating Officer.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R.
P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court within 30 days from today to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law within the same period. However, in case the discharge application is not moved or the same is rejected on merit within the aforesaid period, the trial court shall proceed in accordance with. The committal court shall commit the case within seven days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to stick to time limit for disposal of discharge application.
For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With aforesaid direction, this application is finally disposed of.
Order Date :- 25.7.2019 AU