Reserved On:- 14.02.2019
Delivered On:- 28.02.2019
Case :- APPLICATION U/S 482 No. - 6049 of 2019 Applicant :- Kuldeep Singh And 2 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Amrendu Singh,M J Akhtar Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
1. Heard learned counsel for the applicants and learned AGA for the State.
2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the impugned judgement and order dated 06.12.2018 passed by 3rd Additional District & Sessions Judge / Special Judge, Hamirpur in Complaint Case No. 38 of 2018 (Sharda Bhadauriya Vs. Kuldeep Singh and others), under Sections 376-D, 392, 504, 506 IPC. Further prayer has been made to stay the further proceedings of the aforesaid case.
3. It is submitted by learned counsel for the applicants that continuation of the proceedings of the aforesaid criminal case is the abuse of process of law. Summoning order passed in the matter is illegal. In fact, one application moved under Section 156(3) Cr.P.C. earlier by the opposite party no. 2 was treated as complaint. Statement under Section 200 Cr.P.C. was recorded but thereafter opposite party no. 2 did not turned up. Therefore, court below rejected the complaint under Section 203 Cr.P.C. in non prosecution. It is further submitted that present complaint is also based on same set of facts. Applicants are real brother. It appears improbable and unbelievable that they would commit such type of offence against the victim. It is further submitted that incident is not supported by medical evidence nor any independent witness. There is also contradiction in the evidence recorded under Sections 200 & 202 Cr.P.C.. Opposite party no. 2 ought to have pressed the first complaint. Since first complaint moved by the opposite party no. 2 was dismissed under Section 203 Cr.P.C., therefore, second complaint was not maintainable. It is next contended that opposite party no. 2 is habitual in making complaint. Present complaint is also started with ulterior motive and mala fide intention. Offence under Section 376(D) IPC is not made out. Concerned Magistrate while passing the summoning order did not take into account the evidence in right perspective and without applying judicial mind passed the summoning order. At this juncture, learned counsel for the applicants placed reliance on the law laid down in Vineet Kumar and others Vs. State of U.P. and another, 2017 Lawsuit (SC) 313.
4. On the other hand, learned AGA argued that a prima facie case is made out to proceed with the trial. Since first complaint was not decided on merits, therefore, second complaint was not barred. It is further submitted that victim in her statement recorded on the complaint has clearly and categorically supported the aforesaid case. Merely on this basis that medical evidence has not been adduced, the statement of the victim cannot be thrown out. Complaint can also not be quashed only on the basis that applicants are real brother. Particularly, when date, time and place of occurrence have been made clear in the statement recorded on the complaint by the victim and witnesses.
5. I have considered the rival submissions and have gone through the entire record including case laws relied upon by the parties.
6. In this matter, as is evident from the record, although first complaint was dismissed under Section 203 Cr.P.C. in non prosecution yet the second complaint started by the opposite party no. 2 for the same set of facts is not barred and it was well maintainable. The submission raised by learned counsel for the applicants on this score is not acceptable.
7. As far as the conduct of the victim is concerned, at the stage of summoning order, the court dealing with the matter has to see only a prima facie case. On perusal of entire evidence annexed with the application, it cannot be said that no prima facie case is made out. Victim in her statement has clearly supported the facts of the complaint to constitute the offence under Section 376(D) IPC. Complaint can also not be quashed merely on this ground that applicants are real brother. What would be the effect of non adducing of medical examination of the victim at initial stage, shall be seen by the trial court during evidence. At this stage, in this proceedings on consideration of entire evidence and comparing the facts of the present matter with the facts of Vineet Kumar case (supra), I am of the view that applicant do not get any help with the law laid down in aforesaid case laws.
8. Thus, on close scrutiny of entire evidence at this stage, no illegality or infirmity is found in the impugned order. Grounds taken in the application to quash the entire proceedings of the aforesaid complaint case are not liable to be accepted. Application being devoid of merits is not liable to be allowed.
9. At this stage, learned counsel for the applicants prays that a direction may be issued to the court below for expeditious disposal of the bail application of the applicants.
10. Hence, it is directed that in case the applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
11. It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
12. With the above observations, the application stands disposed of.
Order Date :-28.02.2019 Sanjeet