Court No. - 72
Case :- APPLICATION U/S 482 No. - 21909 of 2019
Applicant :- Akbar Ali And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mirza Ali Zulfaqar Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Sri Ram Surat Patel, Advocate has filed appearance on behalf of opposite party no. 2 and also filed a short counter affidavit of that party. Taken on record.
2. Heard Sri Mirza Ali Zulfaqar, learned counsel for the applicants, Sri Ram Surat Patel, learned counsel for opposite party no. 2 and learned A.G.A. on behalf of State.
3. Present 482 Cr.P.C. application has been filed to quash the charge sheet dated 01.4.2016 as well as entire proceedings of Case No.770 of 2017 ( State Vs. Afsar Ali and others) arising out of Case Crime No.20 of 2013, under Sections 147, 452, 323, 506, 376/511 IPC, P.S. Swar, District Rampur pending before the learned Additional Chief Judicial Magistrate-Ist, Rampur.
4. Learned counsel for the applicants submits that the applicant no. 5 is the first wife of Mohd.Hafeez to whom the opposite party no. 2 was subsequently married. Arising out of matrimonial discord between those parties, applicant no. 5 had initiated proceedings under Section 125 Cr.P.C. against the said Mohd. Hafeez. While those proceedings were still pending, the opposite party no. 2 lodged a wrong prosecution against the applicant no. 5, her father Afsar Ali and her three brothers. In that prosecution an allegation of attempt to rape was made against one of the brother of applicant no. 5, namely, Akbar Ali.
5. Besides, inherently improbable and absurd allegations, the applicants along with father and two brothers were implicated in case wherein it was further alleged that the third brother had committed rape upon opposite party no. 2, there is also no medical evidence or other cogent material to corroborate such an absurd allegation. Clearly, therefore a dispute is stated to have arisen from matrimonial discord between the parties which dispute got completely exaggerated and thus, allegation of attempt to rape have emerged. Even otherwise, it has been submitted that no occurrence took place and no criminal offence was committed by any of the applicants.
6. During pendency of the proceedings, the real dispute between the parties are stated to have been resolved such that applicant no. 5 has withdrawn her proceedings under Section 125 Cr.P.C. and is living separately from opposite party no. 2 and the said Mohd. Hafeez. Upon such withdrawal of proceedings, the opposite party no. 2 has also lost interest in the present proceedings which were lodged only by way of counter blast to the earlier prosecution lodged by the applicant no. 5 under Section 125 Cr.P.C. A written compromise reached between the parties has also been annexed to the present application as Annexure-3 which appears to have signed by the opposite party no. 2 and the present applicants. In the short counter affidavit filed, today, the opposite party no. 2 has stated as under:-
"That, the contents of the aforesaid Criminal Misc. Application along with its annexure filed by applicants have been got read over and explained to the deponent as such he understood the contents thereof and now in a position to reply the same.
That, the opposite party no. 2 lodged the F.I.R. against the applicant in case crime no. 20/2013 at Police Station Swar, District Rampur.
That, after investigation the investigation officer submitted charge-sheet on 31.01.2013 against the applicant no. 2 to 5 and thereafter a supplementary charge-sheet no. 20A of 2013 on 01.04.2016 against the applicant no. 1 under section 147, 323, 452, 506 376/5111 IPC.
That, it is pertinent to mention here that the husband of the opposite party no. 2 married with the sister of the applicant no. 1 namely Farheen Jahan and the matter between the parties due to matrimonial dispute.
That, the matter is already settled between the parties and the opposite party no. 2 does not want to proceed against the applicant and at present there is no dispute between the parties.
That, the paragraph no. 9 of the affidavit of 482 Cr.P.C. application is admitted and compromise deed executed between the parties which is annexed as Annexure No. 3 in the 482 of Cr.P.C. application.
That, in view of the aforesaid fats and circumstances, it is expedient in the interest of justice that this Hon'ble Court may kindly be pleased to accept the present short counter affidavit and the same may be taken on record and passed appropriate order on the basis of compromise between the parties in accordance with law otherwise both the parties shall suffer irreparable loss and injury."
7. In view of the above, no useful purpose would be served in allowing such a prosecution to proceed any further where the opposite party no. 2, who would be a key prosecution witness, if the trial were to proceed, has declared her unequivocal intent to turn hostile by stating that she had made allegations upon misunderstandings and misgivings between the parties and no real occurrence had taken place.
8. Thus, in view of the well settled principles of law as laid down by the Hon'ble Apex Court reported in 2003(4) SCC 675 (B.S. Joshi Vs. State of Haryana) as well as the Judgment of the Apex Court reported in J.T., 2008(9) SC 192 (Nikhil Merchant Vs. Central Bureau of Investigation and another), the proceedings of the aforesaid case is hereby set aside.
9. Accordingly, application is allowed.
Order Date :- 31.5.2019 Meenu