Court No. - 74 Case :- APPLICATION U/S 482 No. - 44651 of 2019 Applicant :- Irshad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Gautam Dubey,Ajay Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the applicant and the learned AGA appearing for the State.
This application under Section 482 Cr.P.C. with the prayer to quash the charge sheet dated 22.12.2018 submitted in case crime no. 1219 of 2018, under Section 376 D, 342, 506 IPC, Police Station Kotwali Nagar, district Muzaffar Nagar.
Submission of learned counsel for the applicant is that although applicant is on bail granted by this Court in the present matter yet no prima facie case is made out against the applicant. Referring to the FIR (Anneuxre No. 4) it is also argued that incident is said to have taken place on 5.3.2018 but the FIR was lodged on 4.10.2018. At this juncture, learned counsel appearing for the applicant also referred to the Annexure no. SA-1 annexed with the supplementary affidavit and argued that application under Section 156 (3) Cr.P.C. was moved in this matter on 11.9.2018 after a gap of about six months of the incident. No complaint was made by the victim during that period to any authority. It is further argued that there is contradiction in the statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. Prosecution case is also not supported with medical evidence. In the present matter after investigation final report was submitted twice. Investigating Officer concerned had collected the call details of the victim but location of the victim was not found at the place of occurrence. Referring to the call details annexed with the application, it is also argued that calls said to have been made by the applicant to the victim was also not found correct. Victim in the statement recorded under Section 164 Cr.P.C. has disclosed the name of the co-accused Mausam but no charge sheet was submitted by the Investigating Officer against him. It appears improbable and unbelievable that applicant, who has no concern with the previous case pending between the victim and other persons, would involve himself to pacify the matter and will call the victim at his residence. Thus referring to the aforesaid facts as well as the documents annexed with the application and supplementary affidavit it is further argued that continuation of the proceedings of the aforesaid criminal case against the applicant is abuse of process of law. Learned counsel for the applicant also argued that present prosecution was started at the behest of P.S. to Qadir Rana, Ex. Member of Parliament. Call details said to have been made by the victim to the P.S. to Qadir Rana, Ex. Member of Parliament itself support this fact. At this juncture learned counsel appearing for the applicant placed reliance on the case of State of Haryana and others Vs. Bhajan Lal and others reported in AIR 1992 SC 604 and further argued that applicant's case is squarely covered with the law laid down in the aforesaid case.
Learned A.G.A. argued that all the questions raised on behalf of the applicant require leading of evidence which are factual in nature and could best be decided by the Trial Court. Although FIR was lodged belatedly but victim in her statement under Section 161 and 164 Cr.P.C. has clearly supported the prosecution case. Merely on this ground that FIR was lodged belatedly when allegations against the applicant is for committing the offence under Section 376 D IPC, prosecution of the applicant cannot be quashed. Thus it is argued that there is no illegality, infirmity or perversity in the impugned order.
Before adverting to the facts raised at the Bar I find it necessary to quote para 108 of the case of Bhajan Lal (Supra) :
"108. "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the Institution and continuance of the proce3edings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In this matter, as is evident from the record, offence is said to have been committed on 5.3.2018 but the FIR was lodged on 4.10.2018. Application under Section 156 (3) Cr.P.C. had been moved on 11.9.2018 itself. Specific fact has been mentioned in the Application under Section 156 (3) Cr.P.C. that victim was perturbed, therefore, she could not lodge the FIR immediately and when her sister encouraged her she moved application at the police station but no action was taken thereafter application under Section 156 (3) Cr.P.C. was moved.
Keeping in view the nature of allegation levelled in the FIR against the applicant as well as statement made by the victim recorded under Section 164 Cr.P.C. and also comparing the same with the law laid down by Hon'ble Supreme Court in Bhajan Lal case (Supra), it cannot be said at this stage that no prima facie case is made out against the applicant to proceed with the trial. 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. The court dealing with the matter at this stage has to see only a prima facie case. Merely on this basis that there is call details said to have been made by the victim to the P.S. to Sri Qadir Rana, Ex. Member of Parliament it cannot be held that present prosecution was started at the behest of P.S. to Ex. Member of Parliament Sri Qadir Rana.
With the above observations, the application stands disposed of. Order Date :- 17.12.2019 Sachdeva