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Anil Kumar @ Kalyan Singh And Others vs State Of U P And An Other

High Court Of Judicature at Allahabad|18 December, 2018
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JUDGMENT / ORDER

Court No. - 55
Case :- APPLICATION U/S 482 No. - 45884 of 2018
Applicant :- Anil Kumar @ Kalyan Singh And 2 Others Opposite Party :- State Of U.P. And An Other Counsel for Applicant :- Shailendra Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the summoning order dated 11.9.2018 passed by the Special Judge (D.A.A.)/Additional Sessions Judge, Court No. 8, Mainpuri in Complaint Case No. 09 of 2018 (Arti Vs. Anil Kumar @ Kalyan Singh), under Sections 323, 376, 504 I.P.C. and 3/4 POCSO Act, Police Station Kishni, District Mainpuri, pending in the court of learned Additional Sessions Judge, Court No. 8, Mainpuri.
It is submitted by learned counsel for the applicants that the applicant nos. 1 and 3 are real brothers and the applicant no. 2 is wife of the applicant no. 3. It is further submitted that there is dispute of partition between the parties and on the application dated 15.6.2015, challan order was passed against the father and uncle of opposite party no. 2 namely Antram and Ramanand. It is further submitted that due to this reason, an application under Section 156(3) Cr.P.C. was filed by opposite party no. 2 in which the date of incident was mentioned as 15.6.2015. Thereafter under the order of Chief Judicial Magistrate, Mainpuri, an F.I.R. was lodged on 29.7.2015 in which final report was submitted by the police. Against the final report, the opposite party no. 2 filed protest petition on 27.7.2016. On the basis of protest petition, the final report was rejected and the case was treated as complaint case and summoning order dated 11.9.2018 was passed against the applicants. It is next submitted that it is not possible for the applicants to commit rape with their family member in presence of wife of the applicant no. 3. It is also submitted that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. At this stage, the argument raised by learned counsel for the applicants involves factual disputes and appraisal of evidence.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants at this stage. All the submissions made at the bar, relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
The prayer for quashing the entire proceeding of the aforesaid case is refused.
However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 18.12.2018 Rmk.
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Title

Anil Kumar @ Kalyan Singh And Others vs State Of U P And An Other

Court

High Court Of Judicature at Allahabad

JudgmentDate
18 December, 2018
Judges
  • Neeraj Tiwari
Advocates
  • Shailendra Kumar Tripathi