Court No. - 53
Case :- APPLICATION U/S 482 No. - 17814 of 2018 Applicant :- Jitendra Kumra Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sukendu Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Sukendu Pal Singh, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Abhinav Tripathi appearing for the State.
This Application has been filed with a prayer to quash the impugned orders dated 23.09.2017 and 04.01.2018 annexure no.3 to the affidavit in support of the application in Criminal Case No. 8520 of 2017 'State vs. Jitendra Singh' (arising out of Case Crime No. 0021 of 2017) under Sections 376/511, 506, 452 IPC P.S. Mahila Thana, District Mathura, pending before the learned Judicial Magistrate, Mathura.
By the order dated 23.09.2017, the court has taken cognizance of offences under various sections of the Penal Code mentioned hereinbefore and by the order dated 04.01.2018, it is just said that the accused is not appearing, and, therefore, summons requiring him to appear on 04.01.2018 be issued. In effect thus, the applicant seeks to challenge the entire proceedings of Criminal Case No. 8520 of 2017 above mentioned.
The first information report was lodged by the prosecutrix opposite party no. 2 through an application under Section 156(3) Cr.P.C. dated 04.04.2017 relating to an incident dated 23.03.2017 said to have occurred at 9:30 a.m. when she was sleeping in her room. A co-tenant of hers in the premises, Jitendra Kumar Sharma, the applicant armed with a country-made pistol accompanied by two unknown persons gained entry, put her under fear of death with the aid of a country-made pistol and threw her to the ground in order to commit rape. The ensuing commotion invited the attention of her mother Smt. Omwati and her brother Manoj, who were asleep in the adjacent room. Upon seeing the mother and brother of the prosecutrix, it is alleged that the accused fled away extending death threatens, in case any action was initiated by the prosecutrix. The father of the prosecutrix came back home and on the knowledge of this happening informed the police at number 100. An attempt was made to lodge an FIR but her report was not registered. The SSP, Mathura was also approached for the said purpose on 28.03.2017 but to no avail, which compelled her to take resort to an application Section 156 (3) Cr.P.C.
It is submitted that there is no medico legal examination in support of injury sustained or any medical report to support the prosecution case on record. The matter was investigated by the police of P.S. Mahila Thana but nothing was found against the applicant. Accordingly, the SSP, Mathura by means of an order dated 29.06.2017 entrusted the investigation to one Jagdish Singh, a Sub Inspector posted at P.S. Kotwali, Mathura. In support of the prosecution case, the statement of the prosecutrix was recorded on 23.07.2017 under Section 161 Cr.P.C., a copy of which is annexed as annexure no. 11. The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 21.08.2017, whereof a certified copy is annexed as annexure SA-2 to the supplementary affidavit.
It is argued by Sri Sukendu Pal Singh, learned counsel for the applicant that the applicant has a dispute with one Mukesh Yadav S/o Om Prakash a resident of Chakarpur, P.S. Section 29 Gurgaon, Haryana. He is a very wealthy man and highly influential who considers himself above the law. It is also said that his brother Mahesh Yadav is politically well connected. The dispute between Mukesh Yadav and the applicant is on account of a transaction where the applicant had taken a shop in Krishna Market, Chakarpur, Gurgaon owned by Mukesh Yadav. The average rent of the shop in this building is about 25,000/- per month. The applicant had taken one of the shops on rent initially of Rs. 24,000/- per month with an agreed increase by Rs. 50/- per month. The applicant had paid Rs. 4,50,000/- by way of premium (in local usage referred to as Pugree). There are minute details to the dispute with Mukesh Yadav about a civil transaction relating to the rented shop which runs into very complex details involving other family members of the applicant, and, Mukesh Yadav also. In sum and substance, it is the applicant's case that it is the said dispute between the two on account of which Mukesh Yadav has manipulated the prosecutrix into lodging a false information against him to coerce a settlement of all disputes between the applicant and Mukesh Yadav.
The aforesaid settlement on terms unilaterally favourable to Mukesh Yadav that includes giving up of a prosecution of certain Crime No. 125 of 2017 against Mukesh Yadav giving up his claim to refund of premium (pugree) from Mukesh Yadav regarding the shop, completely vacating the house of Saraswati Vihar, Gurgaon that the applicant was forced to purchase at exorbitant price and selling to persons nominated by Mukesh at a price to be dictated by Mukesh Yadav. The said facts are asserted in paragraph no.
64 of the affidavit. Other issues have also been raised about the prosecutrix giving out details of history of hers with her in-laws where the prosecutrix has lodged a number of FIRs against her in-laws of different kinds of offences including Sections 576 and 511 IPC. Most of the FIRs against her in-laws by the prosecutrix have come after the death of her husband on 19.07.2017.
Learned AGA has opposed the motion to admit this Application to hearing and has pointed out that the prosecutrix is consistent in her allegations in the FIR coming from the application under Section 156(3) Cr.P.C. and the statement under Section 161 Cr.P.C. dated 23.07.2017 (annexure no. 11) and most particularly her statement under Section 164 Cr.P.C. dated 21.08.2017 (annexed as SA-2 to the supplementary affidavit) that leave no scope to interfere in the impugned orders by this Court in exercise of powers under Section 482 Cr.P.C.
No doubt, the applicant has come with a catalogue of particulars of the FIRs lodged by the prosecutrix against her in-laws after the death of her husband which does arouse some kind of suspicion about her bona fides but looking to the fact that in her statement under Section 164 Cr.P.C. there are categorical allegations on oath before the Magistrate, and the fact, that the issues raised by the applicant would run into very minute details of proceedings, it is not possible for this Court in the limited scope of jurisdiction under Section 482 Cr.P.C to adjudicate upon and determine whether the allegations and the impugned proceedings are mala fide and baseless. The same have to suffer scrutiny of a trial.
In view of the aforesaid facts, no case for quashing the charge sheet is made out. Therefore, the prayer for quashing the charge sheet is refused.
However, in case the applicant surrenders before the court below within 45 days from today and applies for bail, the same shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P., 2004 (57) ALR 290 and affirmed by Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC). For a period of 45 days from today, no coercive action shall be taken against him. However, in case, applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
It is made clear that no further time shall be allowed to the applicant to surrender before the Court below.
The Application stands disposed of accordingly.
Order Date :- 30.5.2018 Deepak