Court No. - 65
Case :- APPLICATION U/S 482 No. - 28913 of 2019 Applicant :- Badrul Hasan And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pradeep Kumar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Sri S.M. Khalid, Advocate has filed vakalatnama on behalf of opposite party no. 2 which is taken on record.
Heard Sri Pradeep Kumar, learned counsel for the applicants, Sri S.M. Khalid, learned counsel for the opposite party no. 2. 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 entire criminal case no. 03 of 2019 in charge-sheet no. 70 of 2019 dated 05.05.2019 arising out case crime no. 7 of 2019 under section 323, 324, 504, 147 and 376 IPC P.S. Quolodiya, District Bareilly by which applicant no. 2, Shamsul Hasan has been charge-sheeted under section 323, 324, 504, 376, 147, 308/506 IPC P.S. Quolodiya, District Bareilly and the applicant no. 1, Badrul Hasan, applicant no. 3, Smt. Sakeena, applicant no. 4, Km. Anjum, applicant no. 5, Km. Tabbasum and applicant no. 6 Muzammil have been charge-sheeted under section 323, 324, 504, 147, 308 IPC and cognizance has been taken on 22.06.2019 by the Judicial Magistrate Nawabganj, District Bareilly and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicants that the accused- applicant nos. 1, 3, 4, 5 and 6 were husband, mother-in-law, Unmarried Nanands and Unmarried Devar of opposite party no. 2 and they have been charge-sheeted by the police under sections 323, 324, 504, 147, 308 IPC only while accused-applicant no. 2 Shamsul Hasan who is father-in-law of the opposite party no. 2, charge sheet has been submitted against him under section 323, 324, 504, 376, 147, 308/506 IPC erroneously as no such occurrence has taken place. It is further argued that the opposite party no. 2 has implicated the entire family of her husband therefore, the charge sheet needs to be quashed.
Learned A.G.A. as well as learned counsel for opposite party no. 2 have vehemently opposed the prayer for quashing of the charge sheet. Learned counsel for opposite party no. 2 has further argued that in the statement under section 164 Cr.P.C. the opposite party no. 2/victim has clearly stated that the accused-applicant no. 2, who is father-in-law had committed rape upon her and when a com,plaint was made by the victim through her husband about this, all the accused-applicants had beaten her badly causing her as many as seven injuries, which are annexed at page 35 of the paper book and also a fracture of parietal bone. Therefore, the quashing of charge-sheet should be refused.
I have gone through the FIR. It is stated in the FIR by the opposite party no. 2, that on 5.1.2019 at about 6.20 p.m. she had gone to her matrimonial home with her husband where her husband abused her and when she resisted, she was beaten badly. Thereafter, investigation was conducted and during the course of investigation, statements of the victim were recorded. The veracity of the said witness cannot be tested in proceedings u/s 482 Cr.P.C.
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 charge-sheet of the aforesaid case is refused.
However, it is provided that if the applicant nos. 1, 3, 4, 5 and 6 appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant nos. 1, 3, 4, 5, and 6 be considered and decided in view of the settled law laid-down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant nos. 1, 3, 4, 5 and 6. However, in case, the applicant nos. 1, 3, 4, 5 and 6 do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With aforesaid direction, this application is finally disposed of with regard to applicant nos.1, 3, 4, 5 and 6.
The application u/s 482 with regard to applicant no. 2 Shamsul Hasan is rejected.
Order Date :- 26.7.2019 AU