Court No. - 65
Case :- APPLICATION U/S 482 No. - 34224 of 2019
Applicant :- Balvir
Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Akhilesh,Wasif Misbah Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Supplementary-Affidavit has been filed by learned counsel for the applicant and the same is taken on record.
Heard Akhilesh, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet dated 27.01.2018 and cognizance order dated 01.08.2019 issued by Additional Chief Judicial Magistrate, Court No. 5, Aligarh in Case No. 1335 of 2019 arising out of Case Crime No. 690 of 2017 under Sections 376 and 506 I.P.C., P.S. Gabhana, District Aligarh.
Learned counsel for the applicant has argued that the accused applicant has been falsely implicated in this case by O.P. No.2 who is married lady. In F.I.R., there is no allegation of rape nor is there any allegation in the statement under Section 161 Cr.P.C. but making improvement upon earlier statement, in statement under Section 164 Cr.P.C., she has levelled allegation of rape upon the accused applicant which is unbelievable. No external injury was found on the person of the victim, even no live or dead spermatozoa was found. This false case has been lodged by the O.P. No.2. and I.O. has not taken into consideration all these aspects and has filed charge-sheet in superficial manner.
Learned A.G.A. has opposed the prayer of quashing and stated that because of the statement of the victim having been given against the accused applicant in which it is clearly stated that rape was committed upon her (physical infirm lady) by the accused, at this stage, her statement cannot be disbelieved in proceeding under Section 482 Cr.P.C. hence quashing of the charge-sheet should be refused.
I have gone through the F.I.R. It is recorded in it by the victim that on 11.12.2017 in the night at about 10-11 p.m., the accused had called through the mobile phone and talked her stating that he cannot survive without her and that he wanted physical relationship with her and if she denies, he would get her abducted and also had given her threat that if she tells about this to anyone, she would be killed. 15 days prior to that, accused had been telling her that whatever he states must be complied by her failing which her entire family would be abducted. Earlier he made several attempts to have physical relationship with her forcibly. The husband of the victim works as contractor and lives out of home most of time. After lodging of this report, the Investigating Officer has conducted investigation and has filed charge-sheet against the accused after recording as many as seven witnesses. In statement under Section 164 Cr.P.C., which has been filed today through Supplementary-Affidavit, she has clearly stated that on 11.12.2017 at about 4:00 a.m., when she had gone to attend the call of nature, accused reached there and after holding both her hands, he committed rape upon her and threatened that in case she tells anybody about it, her children would be killed and her husband would be got abducted. Because of this, the victim had to live with her children at a rented accommodation in Aligarh. It is further mentioned in the statement that once her husband had gone to make complaint about this occurrence to the house of accused where his nephew Harinder, one Bobby had beaten her husband badly and, thereafter, the false case was also lodged from the side of accused against the husband of O.P. No.2 in order to create pressure to compromise the matter. Statement of the victim cannot be disbelieved in proceeding under Section 482 Cr.P.C. nor the statement which has been recorded by the I.O. can be scrutinized in proceeding under Section 482 Cr.P.C.
The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 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, 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 is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the aforesaid direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 30.9.2019
A. Mandhani