Court No. - 65
Case :- APPLICATION U/S 482 No. - 28686 of 2019 Applicant :- Gulam Mustafa @ Suhail Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mohd. Ashraf Abbasi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Mohd. Ashraf Abbasi, learned counsel for the applicant, 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 charge-sheet dated 25.1.2019 arising out of Case Crime No. 156 of 2018 under sections 506, 328, 376, 392 IPC, Police Station Holagarh, District Allahabad pending before the court of A.C.J.M.-5, Allahabad.
It is argued by learned counsel for the applicant that the applicant has been falsely implicated in the present case by opposite party no.2 because earlier the wife of the applicant had lodged an FIR against opposite party no.2 being Case Crime No. 148 of 2018 under sections 323, 504, 506 IPC. He has drawn the attention of the Court towards statement of the victim u/s. 164 Cr.P.C and argued that the said statement is incredible as no such occurrence could be believed that the accused, after having committed rape upon the victim, would continue to be sitting in the same room and would be threatening the victim that if she disclosed that she has been raped, the video clip which has been made by the accused would be made viral. Hence, the charge-sheet deserves to be quashed, the same being malicious prosecution of the applicant.
On the other hand, learned A.G.A. has opposed the prayer stating that cognizable offence is made out on the basis of allegations made in the FIR.
I have gone through the impugned FIR.
It is recorded in the same that opposite party no.2 is a married lady and her husband lives out of town for earning his livelihood. On 16.05.2017, at about 8.00 p.m., when the accused knocked the door of her house for offering laddu which he disclosed to have been offered at Mazaar and on that pretext, he entered the house of the victim and made her consume the said laddu. After consuming the same, she fainted and when she recovered, she came to know that she had been raped.
Thereafter, she was threatened that the dirty video clipping made of her would be made viral and under this threat, she was continued to be exploited sexually by the applicant. Chargesheet has been submitted in the case after completion of investigation and therefore, the witnesses which have been examined by the Investigating Officer cannot be scrutinized in proceedings under Section 482 Cr.P.C. and it cannot be denied that cognizable offence is made out on the basis of evidence gathered by the Investigating Officer.
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 proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 15 days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to hear and dispose of discharge application.
The applicant may appear before Committal Court within 15 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 15 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal Court, the said Court shall take coercive steps to procure his attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 25.7.2019/Madhurima