Court No. - 65
Case :- APPLICATION U/S 482 No. - 36247 of 2019
Applicant :- Sandeep
Opposite Party :- State Of Up And Anr Counsel for Applicant :- Ramesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Ramesh Kumar, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the Charge-Sheet No. 511 of 2018 dated 17.12.2018 and cognizance dated 15.07.2019 in Case No. 540 of 2019 pending before Court of A.C.J.M., Room No. 17, Allahabad under Sections 376, 452 and 506 I.P.C. arising out of Case Crime No. 0979 of 2018, P.S. Soraon, District, Allahabad.
Learned counsel for the applicant has argued that victim is minor whom O.P. No.2 has falsely implicated. Accused applicant is distant Devar of O.P. No.2. He has drawn attention of this Court towards the F.I.R. which was earlier lodged by the father of the applicant against father-in-law of O.P. No.2 and other family members being Crime No. 771 of 2018 under Sections 147, 323, 504, 506 and 452 I.P.C. which is annexed at page nos. 36 and 37 of the paper book. Other F.I.R. was also lodged by father-in-law of the applicant against two real brothers-in-law of O.P. No.2 along with three others which is Crime No. 911 of 2018 under Section 354 Ka, 504, 506, 379 I.P.C. which is annexed at page nos. 41, 42 and 43 of the paper book, thereafter as a Counter-blast, the present F.I.R. has been lodged by the O.P. No.2 against the accused applicant after about two months of the incident. Further he has drawn attention of this Court towards the statement of the victim recorded under Section 161 Cr.P.C. annexed at page no. 45 of the paper book in which victim has not stated that she was raped by the accused applicant but modifying the said statement, she has stated under Section 164 Cr.P.C. that the rape was committed upon her by the accused applicant. He has further drawn attention of this Court towards the fact that accused applicant was given protection against arrest vide order dated 4.12.2018 in Writ Petition No. 35104 of 2018. It is further prayed that the I.O. has over-looked all these aspects of this case and has submitted charge-sheet in cursory manner without properly investigating the case, hence the same needs to be quashed as being malicious.
Learned A.G.A. has vehemently opposed the quashing and apprised that in Statement under Section 164 Cr.P.C., there is a clear mention by the victim of rape having been committed by the accused applicant upon her which cannot be disbelieved at this stage in proceeding under Section 482 Cr.P.C.
I have gone through the F.I.R.
In F.I.R., O.P. No.2, victim has mentioned that the accused applicant is a neighbour who in relation, happens to be her Devar. On 29.09.2018 at about 10:00 A.M., when the family members of the victim had gone out and the O.P. No.2 was alone in her house, the accused started molesting her and when she cried loudly, cloth was stuffed in her mouth, thereafter she was thrown down on bed whereafter rape was committed upon the victim by accused applicant forcibly. After that, the accused had left the place giving her threat to her life that in case, she tells about the same to her husband, she would be killed. In her statement recorded under Section 164 Cr.P.C., she has narrated that accused has made forcible physical relationship with her, therefore, discrepancy which have been noticed and have been pointed out by the learned counsel for the applicant in the F.I.R. version and in the version of the witness recorded under Section 161 and 164 Cr.P.C., cannot be looked into in proceeding under Section 482 Cr.P.C.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (Emphasis added) The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
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 at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the aforesaid direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 27.9.2019
A. Mandhani