Court No. - 67
Case :- APPLICATION U/S 482 No. - 21112 of 2019 Applicant :- Ramakant Pal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pradeep Kumar Mishra Counsel for Opposite Party :- G.A.,Lavkush Kumar Shukla
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned counsel for opposite party no.2 as well as learned A.G.A. and perused the record.
By means of the present 482 Cr.P.C. application, the prayer sought by the applicant is to quash the charge sheet dated 15.02.2019 along with summoning order dated 08.05.2019 as well as entire proceedings of Case No.431 of 2019(State vs. Ramakant Pal) arising out of case crime no.124 of 2018 under Sections 376, 323, 504, 506, 406, 120-B IPC, Police Station-Zafrabad, District- Jaunpur pending in the court of A.C.J.M.-V, Court No.16, Jaunpur.
This is a cry of a widow coming in the way in shape of 482 Cr.P.C. application. On 06.08.2018 through 156(3) Cr.P.C. application, she has lodged the FIR against Lalta Pal (father-in-law), Israji Pal(mother-in-law), applicant/Ramakant(devar) and Heera lal Pal(agua/mediator) with the allegation that the informant Seema Pal got married with one Ashok Kumar Pal on 03.07.2010 according to Hindu rites and rituals and the couple blessed with two daughters and they were residing happily in Mumbai. On account of some disease, her husband left heavenly abode on 20.01.2018. Thereafter, after performing last rites of her husband, her father-in-law and mother-in-law consoled her and made an offer that she would not be left in a condition of destitute and would marry her with her younger son-Ramakant(applicant). Taking the advantage of this offer, applicant established physical relationship with her and sexually exploited her. It was a non-serious offer and throughout the period, poor widow was molested to the court and thereafter she was shunted of from their way. Not only this, parent-in-law has taken out their LIC bonds, valuable ornaments and refused to marry Ramakant with her.
Contention raised by learned counsel for the applicant is that she is grown up lady and the facts and circumstances of the case clearly shows that no such offer was made with her and she lodged the FIR with an ulterior motive and purpose. It is further contended that she is major girl and even assuming for the sake of the argument that the applicant has established physical relationship with her, she was consenting party to this relationship.
Per contra, learned counsel for opposite party no.2 has vehemently opposed the prayer sought by the applicant mentioning therein that it was a non-serious offer to a destitute lady and her consent was obtained by misconception and as such, Section 90 of the IPC read thus :-
"90. Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
It clearly indicates that consent was obtained by her under the misconception that she would go to marry with the applicant. Later on, he wriggled out from his promise.
Learned counsel for opposite party no.2 has relied upon the latest citation of Hon'ble the Apex Court in the case of Anurag Soni Vs. State of Chattisgarh decided on 09.04.2019 in Criminal Appeal No.629 of 2019 arising out of SLP(Criminal) 618 of 2019. Hon'ble the Apex Court has opined that :-
"Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC."
Yesterday, an offer was made by the Court to learned counsel for the applicant to inquire from his client whether he is ready to marry with opposite party no.2. Today, in reply to this, learned counsel for the applicant has submitted that there is no such plan of the applicant to marry with her.
In totality of circumstances, the prayer made is hereby refused.
However, considering the entire facts and circumstances of the case and the arguments advanced, this Court is of the opinion that since learned counsel for the applicant has already given up that he does not want to press the case on merit, in the fitness of circumstances, this 482 Cr.P.C. application stands disposed of with the direction that if the applicant surrenders within 30 days from today and applies for bail, his bail application shall be adjudicated and decided by the courts below with speaking and reasoned order, strictly in accordance with law, in the light of the judgment given by Hon'ble Apex Court in the case of Hussain and another Vs. Union of India reported in (2017) 5 SCC Page-702, relevant extract of which reads as under :-
"….......Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time" "Decision of cases of under-trials in
custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial; vested interests or unscrupulous elements try to delay the proceedings"....... "In spite of all odds, determined efforts are required at every level for success of the mission"..... "The Presiding Officer of a court cannot rest in a state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases."
To satiate speedy disposal of the cases, the courts below are issued following directions in accordance with the observations made in the case of Hussain and another (Supra):
(i) Bail applications be disposed of normally within one week :
(ii) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years. (iii). ;
(iv). "
The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.
For the period of 30 days from today, no coercive action shall be taken against the applicant in the aforementioned case.
It is made clear that no time extension application would be entertained for extending the period of 30 days.
The ratio mentioned above is the last word for every judicial officers for abiding with the directions of the Hon'ble Apex Court. In the aforesaid scenario, it would be pertinent to refer the case of Brahm Singh and others Vs. State of U.P. and others decided on 08.07.2016 in Criminal Misc. Writ Petition No.15609 of 2016 whereby co-ordinate Bench of this Court, while taking into account the concerns of most of the counsels with regard to the long pending bail applications at lower courts' stage has expressed their anguish and concern.
In the aforesaid backdrop, learned Sessions Judge/the concerned Trial Judge is directed to ensure that the guidelines given in the case of Hussain and another (supra) as well as in Brahm Singh and others(Supra) has to be carried out in its letter and spirit, failing which an adverse inference would be drawn against the erring officers and this Court would be compelled to take appropriate action against them, if found that there is laxity in adhering the above directions.
In the event, the bail application is not decided within seven days as contemplated above, the learned Judge will have to spell out the justifiable reasons and record the same on the order sheet of such cases.
With the aforesaid observations, the present 482 Cr.P.C. application stands disposed of.
Order Date :- 29.5.2019 Sumit S