Court No. - 65
Case :- APPLICATION U/S 482 No. - 32017 of 2019 Applicant :- Siddique and 2 others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ajatshatru Pandey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Vakalatnama on behalf of the opposite party No. 2 has been filed by Shri S.K. Tiwari, Advocate. The same is taken on record.
Heard Sri Ajatshatru Pandey, learned counsel for the applicants, Shri S.K. Tiwari, learned counsel for the opposite party No. 2 and Sri Amit Kumar 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 entire proceeding as well as the summoning order dated 11.09.2018 in Case No. 2302837 of 2018 in Case Crime No. 180/2017 (State Vs. Siddhique and others) under Section 376-D I.P.C., Police Station – Kampierganj, District Gorakhpur pending in the Court of Additional Civil Judge (J.D.), Court No. 4, District Gorakhpur and also a prayer is made to stay the said summoning order dated 11.09.2018 in aforesaid case as well as the charge sheet dated 25.09.2017 till the disposal of this application.
It is argued by the learned counsel for the applicants that the accused applicant No. 1 is Jeth of the opposite party No. 2 and accused applicant No. 2 is son-in-law of Nafeesha who is Nanad of the opposite party No. 2 and accused applicant No. 3 is the husband of Nafeesha. It is also argued that false allegation of rape has been made against the accused applicant Nos. 2 and 3 who are father-in- law and son-in-law, which is improbable and impossible. Attention has also been drawn to the page No. 83 of the Paper Book on which one case has been filed by the husband of the opposite party No. 2 against Shahnaz Ansari and others in which Shahnaz Ansari, Atiqurrehman @ Malhar, Tahira Khatoon Tawassum and Afsana Khatoon were summoned under Sections 147, 149, 323, 504, 452, 506 IPC. Thereafter, attention of this Court is drawn to the page No. 89 of the Paper Book. It is a copy of an N.C.R. No. 21/25 under Sections 323, 504, 506 IPC, which shows that the opposite party No. 2 had filed this NCR under the said Sections against accused applicant No. 3 and some other co-accused.
Thereafter, attention has also been drawn to page No. 64 of the Paper Book, which shows a case under Domestic Violence Act was slapped against the husband of opposite party No. 2 i.e. Safiuddin and others and drawing attention to these cases it is argued that the opposite party No. 2 is in habit of initiating false cases against applicants only to malign them. Attention was also drawn to page No.
71 of the Paper Book which contained an FIR lodged by the opposite party No. 2 against the entire family of her husband under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act. It is further argued by the learned counsel for the applicants that the opposite party No. 2/victim had refused to be medically examined as per the statement of the doctor, namely, Sushma, which is at Page No. 37 of the Paper Book. Also, attention of this Court was drawn to an another complaint case which was slapped against the accused applicants by moving an Application under Section 156 (3) of Cr.P.C. which is annexed at page No. 79 t0 80 of the Paper Book. Lastly, it has been argued that this is nothing but a malicious prosecution of the applicants at the hands of the opposite party No. 2; it deserves to be quashed at initial stage.
It is vehemently argued by the learned counsel for the opposite party No. 2 that it is very clearly stated in her First Information Report that undue pressure was being built up upon her from the side of the accused applicant to withdraw this case. As regards the delay in lodging of the said First Information Report, it is argued by the learned counsel for the opposite party No. 2 that immediately on the next date of the occurrence she had approached the police and since no action was taken by the police, then, an application under Section 156 (3) of Cr.P.C. was moved for lodging of the FIR against the accused applicants. It is further argued by him that as regards not permitting herself to be medically examined, the incident took place on 23.09.2016; while she was taken for medical examination on 14.04.2017 i.e. much after the occurrence, hence there was no justification for such delayed medical examination to be conducted.
Learned A.G.A. has vehemently opposed the prayer for quashing of the entire proceedings, summoning order as well as charge sheet and has argued that the victim in her statement under Section 164 Cr.P.C. has specifically levelled allegation of rape against all three accused.
I have gone through the First Information Report. In the First Information Report it has been mentioned that the opposite party No. 2 was married to Safiuddin of the same village, who has expelled her from the house and regarding which a case was filed by the opposite party No. 2. Siddique son of Hameed, Kaish Mohammad @ Guddu son of Inayatulla and Hameed son of Sahmul i.e. the accused applicant Nos. 1 to 3 wanted to pressurize her to enter into a compromise with her husband Safiuddin, which was refused and Kaish Mohammad @ Guddu had an evil eye on her. On 23.09.2016 when she returned from Gorakhpur after watching her case, at about 5:00 P.M. she reached at Shivpur Chauraha in tempo where from she started going home on foot and it had become dark. At about 7:30 P.M. the accused applicants forcibly stopped her and dragged her into the grove of Pandey Ji. There she was raped by all three accused. The said statement has been corroborated in her statement under Section 164 Cr.P.C.
The Investigating Officer has investigated the matter and has submitted the charge sheet in this case after having recorded statements of as many as five witnesses and the veracity of the said witnesses cannot be tested in proceedings u/s 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 applicants. 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, summoning order as well as charge sheet dated 25.09.2017 is refused.
However, the applicants may approach the trial court to seek discharge, if so advised, and before the said forum, they may raise all the pleas which have been taken by them 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 the discharge application.
The applicants may appear before committal court within 30 days to get their case committed to the Court of Sessions so that the accused persons may move discharge application before it. For a period of 30 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 direction, this application is finally disposed of.
Order Date :- 22.8.2019 LBY