Court No. - 73
Case :- APPLICATION U/S 482 No. - 34310 of 2016 Applicant :- Dilip Kumar Patel Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amit Kumar Singh,Anjeet Singh Counsel for Opposite Party :- G.A.,Rakesh Kumar Gupta,Sudhir Kumar (Chandraul)
Hon'ble Om Prakash-VII,J.
Heard Sri Amit Kumar Singh, learned counsel for the applicant, Sri R. K. Gupta, learned counsel for the opposite party no.2 as well as learned A.G.A. for the State.
The present application under section 482 Cr.P.C. has been filed with a prayer to quash the charge sheet dated 28.09.2016 and entire criminal proceeding of Case No. 1736 of 2016 arising out of Case Crime No. 60 of 2016, under Sections 417, 376, 420 IPC, Police Station Chandpur, District Fatehpur pending in the Court of Judicial Magistrate, Fatehpur.
Submission of learned counsel for the applicant is that offences under Section 417, 376, 420 I.P.C. are not attracted in the present matter. At the time of marriage as disclosed i.e. on 28.08.2011, opposite party no.2 was major. Physical sexual intercourse established between the parties was consensual. At this juncture, learned counsel for the applicant referred to the contents of the F.I.R. as well as statement of the witnesses recorded under Section 161 Cr.P.C. and further argued that concerned Magistrate while passing the order did not take into consideration the statement recorded under Section 161 Cr.P.C. and without applying judicial mind took the cognizance in the matter on the charge sheet submitted by investigating officer. Continuation of the criminal proceedings of aforesaid criminal case is an abuse of process of law.
Learned A.G.A. as well as learned counsel for the opposite party no.2 argued that although opposite party no.2 was major at the time of her marriage but divorce decree was obtained by the applicant committing fraud. Opposite party no.2 approached before this Court by filing a writ petition and same was disposed of directing the parties to appear before the court concerned. It is also argued that a recall application to set aside the ex parte divorce decree was also moved before the court concerned which is still pending. All the offences levelled against the applicant are attracted, there is no illegality, infirmity or perversity in the cognizance order. Hence, the application is liable to be dismissed.
I have considered the rival submission made on behalf of parties and gone through the entire record.
In this matter as is evident from the record, one F.I.R. was lodged by the opposite party no.2 dated 13.04.2016 regarding offence said to have been committed in between 01.01.2008 to 13.04.2016 for the offence under Sections 417, 468, 376, 420 I.P.C. mentioning therein that applicant who was studying in coaching Centre at Kakadev, Kanpur became acquainted with the opposite party no.2 and he used to come her residence. Thereafter, applicant proposed to marry with the opposite party no.2. Initially, she was denying but on his repeated requests, she agreed to marry with him. Thereafter, applicant took her in Arya Samaj Mandir, Heeraganj, Kanpur and they married with each other there on 28.08.2011. It is also mentioned that thereafter they started living as husband and wife. In the year 2012, applicant took admission in M.B.B.S. Course. Since the family members of the applicant were not happy with the marriage, they were not paying any amount for the education of the applicant. When this fact was disclosed by him to the opposite party no.2, she requested to her father and entire expenses for studying in M.B.B.S. course was spent by the father of the opposite party no.2 i.e. more than Rs. 25 lakhs. On one day, applicant came at the house of the opposite party no.2 and stated that marriage between applicant and opposite party no.2 had taken place through Arya Samaj procedure, he intend to perform the Court marriage procedure. Thereafter, he took the opposite party no.2 to the court concerned and also obtained signatures of the opposite party no. 2 on the pretext that papers are marriage papers. F.I.R. further shows that opposite party no.2 signed on the said papers trusting him without perusing/reading it. Later on, it was detected that said papers were divorce papers. Thus, allegation was levelled against the applicant that he has committed fraud and forgery. Allegation is also that applicant was establishing sexual intercourse with opposite party no.2 continuously since 2008. Thus, prayer was made to take legal action against the person named in the F.I.R. It appears that after investigation, charge sheet was submitted and cognizance was taken on 27.10.2016. Feeling aggrieved with the cognizance order present application has been filed.
Before adverting to the submissions raised across the bar, I find it necessary to quote the order dated 28.04.2016 passed by Division Bench of this Court in First Appeal Defective No. 141 of 2016 annexed with the counter affidavit. The said order is reproduced as under:-
“Heard learned counsel for the parties.
Application under Section 13-B of the Hindu Marriage Act was filed before the Additional Principal Judge, Family Court, Kanpur Nagar being Case No. 1397 of 2015 by the husband Dileep Kumar against the appellant Smt. Archana. It appears that the records of the aforesaid case were placed before the Lok Adalat on 12.03.2016. On the said date the Additional Family Judge has been pleased to grant a decree of divorce on mutual consent having regard to an application filed on behalf of the parties along with their photographs. It has also been recorded that the said application was filed by the parties who were present before the Lok Adalat.
It is the case of the appellant that an imposter was set up before the Lok Adalat, she was neither present nor the application along with the photographs was signed by her. It is in this back ground that the present appeal under Section 19 of the Family Court Act has been filed.
Section 21 (2) prohibits an appeal against the Award of the Lok Adalat but this prohibition under Section 21(2), in our opinion, will come into play only when the parties had agreed for the matter being resolved under the Legal Service Authorities Act, 1987. Since, in the facts of the case, it is alleged that the appellant before us had not consented for the matter being adjudicated by the Lok Adalat nor she was served with the notice of proceedings and further since there are allegations of fraud, we are of the opinion that the issue with regards to the maintainability of the present appeal is highly debatable. We leave the issue at this stage inasmuch as every Court/authority has inherent power to recall an order obtained by fraud as fraud vitiates all solemn acts.
We further clarify that we are not expressing any final opinion on the issue of fraud having been committed or not as we are of the opinion that such issue can be appropriately examined by the Lok Adalat itself on an appropriate application being made for the purposes.
Therefore, we grant liberty to the appellant to make an application before the Lok Adalat, stating therein that the order dated 12.03.2016 has been obtained by fraud by setting up an imposter, along with a certified copy of this order. On such an application being made within one month from today, the Family Court, after affording an opportunity of hearing to the parties, shall decide the same by means of a reasoned speaking order preferably within one month thereafter.”
It is evident from the record that first information report is lodged with the allegation that signatures of the opposite party no.2 were obtained on the divorce papers committing fraud and misrepresenting the fact. If the order dated 28.04.2016 passed in the First Appeal Defective No. 141 of 2016 is taken into consideration, plea was to set aside the order dated 12.03.2016 passed in the Lok Adalat which was said to be obtained committing fraud setting up an imposter before Lok Adalat. Specific plea had also been taken by the opposite party no.2 in the aforesaid first appeal that she was neither present before the court concerned nor the application alongwith photographs was signed by her. It is also evident from the record that a recall application is said to be pending to recall the order dated 12.03.2016 passed in Lok Adalat on the divorce petition.
In the facts and circumstances of the present case, if the ingredients of offence under Section 376 I.P.C. is taken into consideration and also compared with the statement of the opposite party no.2 recorded under Section 164 Cr.P.C., it is clear that nothing was mentioned by the opposite party no.2 in the F.I.R. dated 13.04.2016 to attract the offence under Section 376 I.P.C. Admittedly, opposite party no. 2 was major on the date of marriage. Physical sexual relations were established between them with the consent of opposite party no2. In the statement recorded under Section 164 Cr.P.C. on 27.08.2016, one line was stated by the opposite party no. 2 in the last of the statement that applicant committed offence of rape against her after the divorce decree. Date, time and place about committing the offence of rape are not disclosed in the statement recorded under Section 164 Cr.P.C. In the present matter opposite party no. 2 herself has stated that no divorce had taken place between the parties. It is also evident that both are major, marriage took place between them with their free consent, thus, in the opinion of the Court, offence under Section 376 I.P.C. is not attracted in the present matter. Cognizance taken in regard to offence under Section 376 I.P.C. is illegal.
As far as other offences under Sections 417, 468 and 420 I.P.C. are concerned, a recall application to recall the divorce decree is said to be pending before the Court concerned in compliance of the liberty extended by the Division Bench of this Court in aforesaid First Appeal Defective No. 141 of 2016. At one point of time, opposite party no. 2 in the F.I.R. has stated that her signatures were obtained by the applicant on the pretext that papers are relating to Court marriage whereas in the aforesaid first appeal plea was taken on the part of the opposite party no.2 that she did not sign on the divorce papers but papers were prepared by setting up an imposter. Both the plea are self contradictory. It appears that present F.I.R. was lodged against the applicant with malicious intention. Since offence under Section 376 I.P.C. is not made out in the present matter, recall application to set aside the divorce decree is pending between the parties, contradictory plea to the averments made in the F.I.R. lodged on the part of the opposite party no. 2 have been taken in the aforesaid first appeal, therefore, Court is also of the opinion that present F.I.R. was lodged against the applicant with a view to put pressure on the basis of false facts. It also appears that concerned Magistrate while taking the cognizance did not go minutely to the facts and evidence of the present matter and in mechanical way without applying judicial mind took the cognizance on the charge-sheet only mentioning that:-
“अपराध का पसजान िलया गया दजर रिजसटर"
On the basis of aforesaid discussion and keeping in view the law laid down by Apex Court in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 S.C. Page 604 prayer made in the application is liable to be allowed. Continuation of the proceedings of aforesaid criminal case against the applicant on the basis of charge sheet and cognizance order taken thereon are abuse of process of law. Thus, application is hereby allowed. Entire proceedings of aforesaid criminal case are hereby quashed.
Order Date :- 26.8.2019 AKT