Court No. - 53
Case :- APPLICATION U/S 482 No. - 9584 of 2018 Applicant :- Sanjay Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anshu Singh,Anshu Singh,Hemendra Pratap Singh Counsel for Opposite Party :- G.A.,Alok Mishra
Hon'ble J.J. Munir,J.
1. Heard Sri Hemendra Pratap Singh, learned counsel for the applicant, Sri Pawan Kumar Shukla, Advocate holding brief of Sri Alok Mishra, learned counsel appearing for the opposite party no.2 and Sri Kamal Singh Yadav, learned A.G.A. appearing on behalf of the State.
2. This is an application under Section 482 Cr.P.C. seeking to quash the entire proceedings of Criminal Case no.1698 of 2018, State Vs. Naresh (arising out of case crime no.393 of 2017), under Sections 354, 354A(i)(ii)(iv), 504, 506 IPC, Police Station Kotwali City, District Hapur, pending before Chief Judicial Magistrate, Hapur.
3. It is submitted by Sri Hemendra Pratap Singh, learned counsel for the applicant that opposite party no.2, the first informant, Dr. Vandana Vashisth is an Assistant Professor in the department of Education at S.S.V. Postgraduate College, Hapur, where she is employed since the year 2009. The applicant, Sanjay Kumar is also an Assistant Professor in the said department of the College, last mentioned. It is alleged that the son of the second opposite party passed away on account of cancer and during his treatment, Sanjay Kumar, the applicant, would frequent her home. The informant alleges that as she realized that the intentions of the applicant were to make advances on her, she asked him not to visit her home. Thereupon, it is alleged that the applicant spread rumours about the first informant maligning her good character in the College, particularly, amongst her circle of associates. It is further alleged that when the informant asked the applicant to desist from doing so, he told the first informant that until she gave into his sexual demands, he would go on with his vilification. It is also alleged that the first informant had given an application in this regard to the former Principal of the College, but till date no action was taken on the said application.
4. On 30.03.2017, the informant’s father, as per allegation in the First Information Report, had gone over to the Syndicate Bank in connection with some bank transaction, where the applicant met him and asked him in foul words whether he depended on the earnings of her daughter, who is engaged in prostitution, to which the informant’s father said that he should not level false allegations. This led to a heated exchange of foul words between the applicant and her father, with the applicant threatening that he would get the informant abducted and also dismissed from service. It is alleged that on 31.03.2017 when the first informant was returning home in the evening hours at 6.00 p.m., at a little distance from the College, 2 – 3 colleagues accompanying the applicant accosted her, where he caught hold of her hand and touched intimate parts of her body, addressing her in offensive words mentioned in the FIR. When the informant resisted, the applicant allegedly threatened the informant saying that he had the Manager in reach and could get her terminated from service any time. The said occurrence was witnessed by Sanjay Gahlot and a number of witnesses mentioned in the FIR.
5. The submission of the learned counsel for the applicant is that the allegations are incredible inasmuch as, the Police Chowki is located adjacent to the College and an incident of this kind would have led to immediate apprehension of the applicant if true; also, the delay of 4 days by the first informant to lodge an FIR with the Police Chowki located at arms length, speaks volumes of mala fides attending the prosecution. It is emphatically submitted that the reason for the mala fide implication of the applicant is that the date of joining service by the applicant as well as opposite party no.2 is the same, on account of which there is a dispute between the applicant and opposite party no.2 about their inter se seniority, and, the right to permanent appointment. Learned counsel for the applicant has laid emphasis on the fact that witnesses as independent as the Principal of the College, were examined by the Investigating officer, who said that the allegations have been levelled falsely in order to settle scores as the applicant and opposite party no.2 are associated to two different and mutually hostile group of teachers. He has taken the Court through the statement of the Principal of the College annexed as Annexure 8 to the affidavit. Learned counsel for the applicant has emphasized that successive Investigating Officers investigated the matter examining different witnesses, all of whom dispelled the prosecution story and twice the Investigating Officers drew up final reports, but on the intervention of Circle Officer or the Superintendent of Police, further investigation was ordered or the investigation transferred. It has been emphasized also that the CCTV footage was seen by the Investigating Officer as stated in paragraph 21 of the affidavit and recorded in the CD Parcha dated 04.05.2017, which also did not show any incident as alleged covering the place of occurrence at the relevant time. The Investigating Officer had then put in a final report, which was stalled by the Circle officer, City, Hapur ordering further investigation. A further investigation took the second Investigating Officer to a number of other witnesses, including guards and gunmen, who guard the gates of the College, but nobody supported the informant’s story. The call detail records were also checked, but at the time of occurrence, his location was found at Babugarh Cantt. from 5.5.52 to 8.07 PM, which is at a distance of 10 kilometers from the place of occurrence. A final report was again drawn up with no material against the applicant in the case diary, but the Superintendent of Police stalled the final report and transferred the case to the Crime Branch. The Crime Branch Investigating Officer entrusted with the job filed a charge sheet without looking to materials in the case diary, which show no prima facie case against the applicant. The Chief Judicial Magistrate without application of mind to the fact that there are no materials in the case diary has passed an order of cognizance dated 12.02.2018.
6. The learned A.G.A. has opposed the motion to admit this application to hearing and has drawn the attention of the Court to the statement of the prosecutrix recorded under Section 164 Cr.P.C., which is on record as Annexure 6 to the affidavit. The said statement is a very detailed statement describing in precise and detailed facts constituting the prosecution case, which has been made on oath before a Judicial Magistrate and shows the prosecutrix firmly standing by her version in the FIR.
7. The allegations made may be true or untrue; they may stand at the trial or fall. But looking to the firm stand of the prosecutrix in her statement on oath under Section 164 Cr.P.C., it is beyond the province of this Court to go into the worth of the allegations and pronounce upon, without virtually holding, as if it were, a trial before the Trial. No case for interference with the order is, therefore, made out. The aforesaid proposition that the Court in exercise of jurisdiction under Section 482 Cr.P.C. cannot examine the disputed defence of the applicant is well settled as held in the decisions of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. As such, no case for interference with the impugned proceedings at this stage is made out.
8. The prayer for quashing the impugned charge sheet is, therefore, refused.
9. However, in case the applicant surrenders before the court below within 45 days from today and applies for bail, the same shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P., 2004 (57) ALR 290 and affirmed by Supreme Court in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC).
10. For a period of 45 days from today, no coercive action shall be taken against him. However, in case, applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
11. It is made clear that no further time shall be allowed to the applicant to surrender before the court below.
12. The application stands disposed of accordingly.
Order Date :- 29.5.2018 Anoop