Court No. - 72
Case :- APPLICATION U/S 482 No. - 17329 of 2017
Applicant :- Km. Kamini
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Hare Krishna Tripathi Counsel for Opposite Party :- G.A.,Ajay Singh,Harish Chandra Mishra
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Kamal Kishore, learned Senior Counsel appearing for the applicant and Sri Prakhar Saran, learned counsel for the opposite party.
2. The present application under section 482 Cr.P.C. has been filed to quash the entire complain case no. 1040 of 2016 dated 23.12.2016 under Section 323, 498A, 504 and 506 IPC and Section 3/4 D.P. Act before the Judicial Magistrate, Gadhmketshwar, District Hapur.
3. Learned counsel for the applicant submits that in the year 2016, opposite party no.2 having lost the election and the applicant won the same, the opposite party no.2 instituted two proceedings. The challenge of the election of the applicant, by means of an election petition which was filed belatedly, but which was accompanied by application seeking condonation of delay. Second, the opposite party no.2 lodged the present FIR on 3.08.2016.
4. Relying on the decision of the S.D.M. in the election petition, he submits, vide order dated 20.04.2018, the election petition came to be dismissed both on account of delay as also upon a finding recorded in that order, that the date of birth of the applicant being 02.02.1994 had been correctly disclosed in the nomination form and the same was in accordance with the entry made in the family register, Adhar card and High School Certificate of the applicant for year 2017. It is thus being submitted that in the document of unimpeachable character exists in favour of the claim made by the applicant.
5. Further, High School Certificate has not been questioned by the opposite party no.2 till date, and therefore, there is no room to entertain any scope of enquiry to the correct date of birth of the applicant. Necessarily , the date of birth of the applicant has to be taken as 02.02.1994 as was also disclosed in the nomination form.
6. Reliance has also been placed on the school registration and Transfer Certificate issued by the Pt. Deen Dayal Upadhyay Vidyapeeth Inter College Balaji Road, Jhansi. He would also submit that initially the Principal of the college/school attended by the applicant was questioned during the police investigation and he had made statement to the effect that the applicant had studied at the school.
7. Subsequently, under pressure from the opposite party no.2, further statement of those persons have been recorded stating otherwise.
8. In any case, in view of the final decision made by the S.D.M., it has been submitted that there is no room for any further deliberation in that regard. Therefore, the present prosecution must call.
9. Learned counsel for the opposite party no.2 and the learned AGA on the other hand submit that in the first place, the scope of the election petition and the present prosecution is not one and the same, and that both may stand and be concluded on their own merits.
10. The finding recorded in the election petition may not bind the criminal court, where the charge has to be framed and it may be examined and decided on the strength of evidence that may be led before during trial.
11. Alternatively, it has been submitted that FIR had been lodged in the month of August 2016 whereas, undeniably, the applicant passed the High School examination in the year 2017, therefore, the High School certificate per-se would not determine the fate of the criminal prosecution. Even if the applicant had taken admission in Class IX of the Pt. Deen Dayal Upadhyay Vidyapeeth Inter College Balaji Road, Jhansi in the year 2015, however, in view of the statements recorded of the Principal of the college, that the applicant claims to have attended before taking admission in Class IX Pt. Deen Dayal Upadhyay Vidyapeeth Inter College Balaji Road, Jhansi, it is clear that applicant had not attended that school. If that fact is found to be correct, then the very basis for the disclosure of the date of birth as claimed by the applicant does not exist.
12. Learned counsel for the opposite party no.2 has also referred to a list of U.P. Board Advance Board Registration List For Regular Students of Class IX of 2016, wherein, the date of birth of applicant had been mentioned as 20.05.2000. Relying on the same, it has been submitted that the applicant had attained the age of majority while filing her nomination.
13. Having heard the learned counsel for the parties and gone through the record, though it cannot be disputed that there exists a high school certificate, the date of birth of the applicant is 02.02.1994, according to which, the applicant would have been a major on the date of conduct of the election, and also though, it cannot be denied that the High School certificate carries a higher prima facie evidenciary value as to the date of birth, however, in the present case, that certificate has come to the existence after the alleged commission of the offence and it's basis stands questioned.
14. The fact that the election petition has been decided in favour of the applicant may not lead to a final or binding conclusion in favour of the applicant in the criminal prosecution. Both proceedings will triable by different forum, and the rule or the test of evidence being different, the conclusion drawn by the SDM in the election petition, cannot be imposed in the criminal prosecution proceedings, at this stage. The matter has to be examined independent of the findings recorded in the election petition.
15. As to the objection based on the High School Certificate, it is noted that though undeniably on prima facie basis, High School certificate does have a higher evidenciary value, however, in the facts of the present case, that the certificate came to the existence well after the alleged incident had taken place. Also, as to the date of birth, there does appear to exist statement of the Principal of Manager of the Rashtriya Public Convent, Junior High School Khale Baba, Jhansi, Shekh Abdul Kayyum who stated that he had been the Principal of that college from 2005 to 2011 and that the applicant never studied in that college during that period and that school closed in year 2014.
16. In view of the above, it becomes a disputed question and it cannot be said with any certainty, whether the date of birth of the applicant is 02.02.1994 or 20.05.2000. Though, the applicant claims to have filed an application for correction of the date of birth in the registration list for high school, however, that fact may also require evidence to be led before any firm, conclusion can be drawn.
17. In view of the above, it does appear that there is material before the learned court below to examine before reaching any conclusion that no criminal offence was committed by the applicant.
18. However, applicant is a lady, and the offence alleged in respect of her date of birth as disclosed in the High School Certificate and not an offence pertaining to misappropriation of money etc. It is directed that in case the applicant appears and surrenders before the court below within 45 days from today and applies for bail, his prayer for bail 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. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
19. For a period of 45 days, no coercive measure shall be taken against the applicant in the aforesaid case. It is expected that the learned court below will decide the bail application of the applicant, as expeditiously as possible, preferably on the same day of its filing.
20. With the aforesaid directions, this application is finally
disposed of.
Order Date :- 26.4.2019 M. ARIF