Court No. - 65
Case :- APPLICATION U/S 482 No. - 32037 of 2019
Applicant :- Madhusudan Jaiswal
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manoj Kumar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Manoj Kumar, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the charge sheet dated 10.3.2019 and cognizance order dated 2.3.2019 passed by the Additional Chief Judicial Magistrate-I, Gorakhpur as well as entire proceedings of Criminal Case No. 3490 of 2019, arising out of Case Crime No. 91 of 2018, under Section 376, 506 IPC, P.S. Kotwali, District Gorakhpur.
It has been argued by the learned counsel for the applicant that the opposite party no. 2 is residing in Maharashtra, while she has filed above mentioned criminal case in Gorakhpur only to harass the accused-applicant. No such occurrence has taken place as has been mentioned in the F.I.R. and the police has made perfunctory investigation in this matter and submitted charge sheet in routine manner, which is nothing but a malicious prosecution of the accused-applicant, which needs to be quashed.
Learned A.G.A. opposed the prayer of quashing and has argued that evidence which has been gathered by the Investigating Officer is prima facie establishing the charge against the accused-applicant under the above mentioned Sections. Attention is also drawn to the statement of the victim recorded u/s 164 Cr.P.C. at page 41, in which, she has levelled allegation of rape having been committed by the accused-applicant upon her and has also stated that applicant was exerting pressure upon her to take back all the criminal cases, which were initiated by her against the applicant. It is further argued that the Investigating Officer has recorded as many as 15 witnesses on the basis of which charge sheet has been submitted but those statements have not been annexed from the side of the accused- applicant.
I have gone through the F.I.R.. In it is has been mentioned that marriage of the opposite party no. 2 was performed with son of the applicant, Ajay Jaiswal, on 6.2.2015 but soon after that taunts were being made with respect to less dowry, which was brought at the time of marriage and she used to be ill-treated. The accused applicant along with her mother-in-law and nanand had throuwn her out of the house after having beaten her. Soon thereafter, she was staying in her parents home. She has further mentioned that case of Domestic Violance Act has been imposed and harassment for dowry is also alleged by her. When on 1.1.2018 the opposite party no. 2 was coming out of court after attending the case pertaining to Domestic Violence Act, the accused applicant met her and told her to come home and talk with respect to solving the mater. On 2.1.2018 in the after noon at about 2:00 pm, when she reached there, the accused applicant was sitting alone and told her that his son is not ready to keep her and stated that he would keep her and started molesting her, thereafter, F.I.R. was lodged. Pursuant to this F.I.R., investigation has been made in which statement of as many as 15 witnesses have been recorded. The veracity of those statements cannot be tested in proceedings u/s 482 Cr.P.C. at this stage.
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, 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 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 30 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 30 days to get their case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused-applicant 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 :- 22.8.2019
A.P. Pandey