Court No. - 83
Case :- APPLICATION U/S 482 No. - 12098 of 2021 Applicant :- Parveen Opposite Party :- State of U.P. and Another Counsel for Applicant :- Devendra Kumar Mishra,Smt. Mandvee Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Neeraj Kumar Chaurasia, Advocate, holding brief of Mr. D.K.Mishra, learned counsel for applicant and learned A.G.A. for State. Perused the record.
This application under section 482 Cr.P.C. has been filed challenging charge sheet dated 30.3.2020 submitted in Case Crime No. 05 of 2020, under sections 376, 323 IPC, Police Station- Mahila Thana, District Gautam Budh Nagar, Cognizance Taking Order dated 20.5.2020, passed by Civil Judge, (S.D.)/F.T.C Gautam Budha Nagar as well as entire proceedings of consequential Case No. 1522 of 2020 ( State Vs. Parveen and Others) arising out of aforesaid case crime number, pending in the Court of Civil Judge, (S.D)/F.T.C. Gautam Budha Nagar.
Record shows that an F.I.R. dated 13.1.2020 was lodged by first informant Neha Yadav, which was registered as Case Crime No. 05 of 2020, under sections 376, 354 (ka), 323 IPC and 5 (1)(d) Immoral Traffice (Prevention) Act, 1956 Police Station- Mahila Thana, District Gautam Budh Nagar. In the aforesaid F.I.R. three persons namely, Parveen, Bablu and Nitin have been nominated as named accused.
Prosecution story in brief, as unfolded in F.I.R. is to the effect that accused persons dislodged modesty of opposite party-2 by committing rape.
After registration of aforesaid E.I.R, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer recorded statements of first informant-opposite party-2 and other witnesses under section 161 Cr.P.C.. Subsequently, statement of prosecutrix was recorded under section 164 Cr.P.C. on 16.6.2020. On the basis of material collected by Investigating Officer during course of investigation, which is substantially adverse to applicant, Investigating Officer opined to submit a charge-sheet. Consequently, a charge sheet dated 30.3.2020 was submitted in above mentioned case crime number, whereby applicant Parveen has been charge sheeted under sections 376, 354A and 323 IPC, whereas other named accused Nitin has been charge- sheeted under sections 376 and 323 IPC. Named accused Bablu has been exculpated. Upon submission of aforesaid charge sheet, Court concerned took cognizance upon same vide Coginzance Taking Order dated 20.5.2020. As a consequence of above, Case No. 1522 of 2020 ( State Vs. Parveen and Others) Police Station- Mahila Thana, District Gautam Budh Nagar, came to be registered.
Thus feeling aggrieved by aforesaid, applicant who is a charge sheeted accused has now approached this Court by means of present application under section 482 Cr.P.C.
Learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. Present criminal proceedings have been engineered by prosecutrix i.e. first informant/opposite party-2 on account of same ulterior motive. Admittedly, prosecutrix is major. She is consenting party. Therefore, offence alleged against applicant are not made out. On the aforesaid premise, it is urged that present criminal proceedings are malicious and are abuse of process of Court, which are liable to be quashed by this Court.
Per contra, learned A.G.A. opposed this application. He contends that applicant is a named accused in the F.I.R. Investigating Officer during course of investigation of above mentioned case crime number has collected material which is adverse to applicant. Prosecutrix, in her statement under section 164 Cr.P.C. has supported the prosecution story as unfolded in F.I.R. In the charge sheet so submitted, as many as 5 prosecution witnesses have been nominated. On the aforesaid premise, it is urged by learned A.G.A that at this stage, it cannot be said that prosecution of applicant is false or there is no material to support the prosecution of applicants. It is then contended that charge sheet is the outcome of investigation. Since no deficiency, irregularity or illegality has been pointed out in investigation, consequential charge sheet cannot be challenged. Reliance is also placed upon paragraph 37 of Nupur Talwar Vs. Central Bureau of Investigation and Another, (2012) 11 SCC 465. On the basis of aforesaid, it is urged that at this stage of taking and summoning of accused only this much is to be seen that sufficient amterial exists for summoning an accused and not that material should be sufficient to convict the accused. It is then urged by learned A.g.A. that no interference is warranted by this Court.
When confronted with above, learned counsel for applicant could not over come the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, application fails and is liable to be dismissed. It is accordingly dismissed.
Order Date :- 12.8.2021 Arshad