Court No. - 65
Case :- APPLICATION U/S 482 No. - 28695 of 2019 Applicant :- Nitin Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Pankaj Bharti Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Pankaj Bharti, learned counsel for the applicant, Sri G.P Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet dated 24.04.2019 as well as cognizance order dated 07.05.2019 and stay the entire proceedings of Case No.706/9 of 2019 (State vs. Nitin) under sections 323, 328, 376, 506 IPC, Police Station Nai Mandi, District Muzaffar Nagar pending before the court of Additional Chief Judicial Magistrate, Court No.1, Muzaffar Nagar.
It is argued by the learned counsel for the applicant that the accused-applicant was ready to marry the victim (opposite party no.2) but her mother was opposing the said marriage because of which, the applicant could not marry her. The offence u/s. 376 IPC is not made out against the accused-applicant as it was a consensual relationship. Hence, chargesheet has been erroneously filed by the Investigating Officer. The same needs to be quashed as this case is nothing but malicious prosecution of the applicant.
On the other hand, learned A.G.A. has drawn the attention of the Court towards the statement of the victim recorded u/s. 164 Cr.P.C. in which she has made allegations of rape having been committed by the accused-applicant and also of having made a video clip of the same which he threatened would be made viral if she would not concede to his demands.
I have gone through the FIR.
As per the FIR, opposite party no.2 had met the accused- applicant in the year 2016 and at that time the accused had promised opposite party no.2 that he would marry her and there is nothing wrong in their staying together. Thereafter, they continued to stay together for 20 days. He, thus established physical relationship with the victim against her wishes giving false assurances that he would marry her. It is further argued that the victim was given some narcotic drugs in drinks and when she got fainted, she was raped repeatedly. After investigation of the case, chargesheet was submitted. The statements of the witnesses which have been recorded by the Investigating Officer during investigation cannot be disbelieved at this stage in proceedings u/s 482 Cr.P.C. and it cannot be denied that cognizable offence is made out on the basis of evidence gathered by the Investigating Officer.
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 and 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 of the aforesaid case 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 15 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 15 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 15 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal Court, the said Court shall take coercive steps to procure his attendance.
With aforesaid directions, this application is finally disposed of.
Order Date :- 25.7.2019 Madhurima