1. Heard Shri Anuj Pandey, learned counsel for the applicant, Shri Aniruddh Kumar Singh, learned A.G.A. for the State and Mr. Rishad Murtaza, learned counsel for the opposite party No.2.
2. This application under Section 482 Cr.P.C. has been filed for quashing charge-sheet filed in Case Crime No.617 of 2017, under Sections 147, 148, 149, 452, 504, 506, 323, 354 (kha) I.P.C. and Section 7/8 POCSO, Act, Police Station Poora Kalander, District Faizabad as well as summoning order dated 10.10.2018 passed by the learned Additional Sessions Judge-Ist, Faizabad.
3. Learned counsel for the applicant submitted that the impugned proceeding was initiated by the opposite party No.2 only due to some property dispute, as number of cases are pending in the courts against each other. The applicant has lodged FIR against the opposite party No.2 & others, which was registered as Case Crime No.618 of 2017, under Sections 147,148, 149, 323, 504, 506, 452, 354 (B) I.P.C., Police Station Poora Kalander, District Faizabad on 29.10.2017 in which the investigation was conducted by the Investigating Officer and the charge-sheet has been filed under Sections 147, 148, 149, 323, 504, 506, 452, 325 I.P.C. Learned counsel for the applicant further submitted that on the written complaint of opposite party No.2, cross FIR was registered on the exaggerated facts with the allegation that opposite party No.2 and other family members were assaulted by the applicant and others and in the incident fire arm was used and the applicant received fire arm injures but no such fire arm was recovered, as a result, the Investigating Officer filed the charge-sheet under Sections 147, 148, 149, 323,504, 506, 452 I.P.C against applicant and under Sections 147, 148, 149, 323, 504, 506, 452 (kha) I.P.C. and 7/8 POCSO, Act, against rest of the accused persons. As no incriminating evidence was found to establish the offence under Section 307 I.P.C. as a result, Section 307 I.P.C. was deleted in the charge-sheet. He further submitted that there was a cross version and the opposite party No.2 and his associates were the aggressor and the applicant side received injuries. Therefore, impugned proceedings is liable to the quashed.
4. Learned A.G.A. opposes the prayer of applicant and submitted that the charge-sheet was filed after investigation and it is evident that opposite party No.2 and others received injures. He further submitted that offence under the provision of POCSO Act, is also made out. Therefore, as per the mandatory provisions of Section 35 (1) and the statement of child witnesses shall be recorded within a period of 30 days by the Special Court from the date of taking cognizance of the offence and the trial is to be concluded as for as possible within a period of one year. As the cognizance was taken by the court below on 10.10.2018 and more than one year has been completed but due to non cooperation of the applicant, the trial is not being conducted. The application (u/s 482 Cr.P.C) is not maintainable, the same is liable to be dismissed and the applicant may appear before the trial court and submits his submission, at the appropriate stage.
5. Learned counsel for the opposite party No.2 submitted that the opposite party No.2 and his real brother Dr. Rakesh Pandey are doctors working in J.J. Hospital Mumbai and living there along with their families, as on the occasion of Barsi of his mother, then he came at his village from Mumbai and on 29.10.2017 in the morning at 8:30 a.m. when he was sitting in his house along with other family members, then the applicant and other accused persons entered into the house and started abusing and beating and they were armed with Lathi, Danda, Knife and country made pistol, the opposite party No.2 tried to save her daughter, then fire was opened by Gautam Pandey, as a result, brother of the applicant Dr. Rakesh Pandey received fire arm injury in his left eye. The daughter of opposite party No. 2 also received injuries and accused persons also tried to molest the modesty of the girl of opposite party No.2 by tearing her cloths, then the 100 Number was dialed. Thereafter, Police came on the spot and the accused persons ran away. He further submitted that Medical Examination of the opposite party No.2 and others were conducted and fire arm injury was found on the vital part of Rakesh Pandey but ignoring the injuries of Rakesh Pandey, Section 307 I.P.C. was deleted under the influence of family members of the applicant. He further submitted that only on the basis of concocted facts, the cross FIR was lodged by the applicant which was registered as Case Crime No.618 of 2017, under Sections 147,148, 149, 323, 504, 506, 452, 354 (B) I.P.C., Police Station Poora Kalander, District Faizabad against the opposite party No.2 and 15 other family members along with the 15 unknown villagers, as the informant and his associates are feeling offended, when the opposite party No.2 and his family members visited his native place, as a result, opposite party No.2 and other family members were assaulted by the informant and his associates.
6. Learned counsel for the opposite party No.2 further submitted that under Section 35 (1) POCSO Act, it is obligatory that the evidence of child shall be recorded within a period of 30 days by the Special Court, taking cognizance of the offence, and Section 35 (2) of the POCSO Act, provides that the Special Court shall conclude the trial within a period of one year from the date of taking cognizance. As the cognizance was taken on 10.10.2018 by the court below and more than one year has completed but the applicant and other accused persons were avoiding the trial. Therefore, he filed Criminal Misc. Case No.4160 of 2019 (u/s 482 Cr.P.C.) (Dr. Jitendra Pandey Vs. State of U.P.) which was disposed of vide order dated 30.05.2019 in which the following order was passed:-
"Heard learned counsel for the petitioner, learned AGA and perused the record.
This petition has been filed with the prayer to issue a direction to the Additional District Judge-1, Faizabad to conclude the trial of Sessions Trial No. 171 of 2018, State Vs. Deepti Pandey and others, arising out of case crime no. 617 of 2017 under sections 147,148,149,323,504,506,452,354-B IPC and section 7/8 POCSO Act, Police Station Pura Kalander, District Faizabad, expeditiously within the time stipulated by this Court.
Learned counsel for the petitioner has submitted that summons have been issued against the accused persons vide order dated 10.10.2018 and several dates have been fixed in the matter for appearance of the accused persons, but they have neither surrendered before the trial court nor moved their bail applications. Due to delaying tactics of the accused persons, the trial is not being proceeded. It has also been submitted that ends of justice would be met if necessary direction is issued to the Additional District Judge-1, Faizabad to conclude the trial of the aforesaid Sessions Trial in accordance with law, within stipulated time, to which, learned AGA has no objection.
The Hon'ble Apex Court in the judgment dated 14.07.2016 rendered in Special Leave Petition (CC) No.14061 of 2016; Gayathri vs. M. Girish has relied upon the following:-
"In this context, we may profitable reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd.; (2011) 9 SCC 678 wherein it has been stated that it is sad, but true, that the litigants seek ? and the courts grant ?adjournments at the drop of a hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. The court has further laid down that it is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further.
In Noor Mohammed v. Jethanand; (2013) 5 SCC 202 commenting on the delay caused due to dilatory tactics adopted by the parties, the Court was compelled to say:-
"In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."
And, again:-
"Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be Herculean, the same has to be performed with solemnity, for faith is the "elan vital" of our system."
In the case at hand, it can indubitably be stated that the defendant-petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts."
The speedy justice is the fundamental right of every litigant but at the same time the long pendency of old cases also cannot be ignored and no one can be permitted to linger on the proceedings unnecessarily. It has also been experienced that the lawyers also abstain from work on various counts. A counsel appearing for a litigant has to have institutional responsibility and it is expected that unnecessary adjournments should not be sought.
However, considering all facts and circumstances of the case, without entering into merits of the case, the Additional District Judge-1, Faizabad is hereby directed to conclude the trial of Sessions Trial No. 171 of 2018, State Vs. Deepti Pandey and others, arising out of case crime no. 617 of 2017 under sections 147,148,149,323,504,506,452,354-B IPC and section 7/8 POCSO Act, Police Station Pura Kalander, District Faizabad in accordance with law after affording opportunity of hearing to the parties concerned expeditiously say within six months from the date of production of a certified copy of this order.
With the aforesaid observations and directions, the petition is disposed of finally. "
7. Learned counsel for the opposite party No.2 furhter submitted that aforesaid order was placed before the trial court by the opposite party No.2 on 21.06.2019, the trial court issued bailable warrant with the observation that family members of the Vinod Pandey, Atul Pandey and Ganesh Pandey refused to accepted summons and parents of the applicant also refused to accept the summons and the matter was posted on 29.06.2019 and the S.H.O. was directed to ensure the service of bailable warrant and summons against the rest of the accused persons. On 29.06.2019 the court below issued Bailable Warrant and directed to S.H.O. for compliance and fixed the case on 10.07.2019. Thereafter, the present petition is filed by the applicant for challaning the charge-sheet and cognizance order dated 10.10.2018 passed by the Additional Sessions Judge-I, Faizabad and he further submitted that it is evident from the impugned charge-sheet (appended with the petition as Annexure No.5) that the folio was applied to get certified copy of the charge-sheet, FIR No.617 of 2017 (supra) on 28.02.2019 and it was prepared on 02.03.2019 and charge-sheet was received by the applicant and his counsel on 05.03.2019, as a result, it is crystal clear that applicant was fully aware about the impugned proceeding since February, 2019 but avoiding the proceeding of trial court and he further submitted that at the time of filing the present application (u/s 482 Cr.P.C.), applicant concealed the fact that a direction was given by this Court in Criminal Misc. Case No.4106 of 2019 (u/s 482 Cr.P.C.) for disposal of the S.T. No.171 of 2018 (State Vs. Deepit Pandey and other) arising out of Case Crime No.617 of 2017 under Sections 147, 148, 149, 323, 504, 506, 452, 354-B I.P.C. and Section 7/8 POCSO, Act, Police Station Pura Kalander, District Faizabad, after affording the opportunity of hearing to the parties concerned, expeditiously say within six months from the date of production of certified copy of this order.
8. Learned counsel for the opposite party No.2 further submitted that due to influence of the applicant and his family members, the Section 307 I.P.C was deleted by the Investigating Officer, as it is evident from the injury report, Rakesh pandey received fire arm injury on the vital part of the body.
9. Considering the argument of learned counsel for the parties and going through the record. It is evident that the FIR, as Case Crime No.617 of 2017 (supra) was lodged on the written complaint of applicant on 29.10.2017 at 11:10 a.m. and this incident was entered into G.D. No.21 dated 29.10.2017 and injured Rakesh Pandey, Jitendra Pandey and Sweecha Pandey were medically examined, on the same day. It is evident from the medial report of Dr. Rakesh Pandey, he sustained fire arm injury in his left eye along with other injures. Details of Injuries of Rakesh Pandey, are as under:-
(i). Multiple abrasions of varying sizes 0.5 cm x 0.2 cm. to 0.8 cm to 0.8 cm along with LW of 0.8 cm. x 0.4 cm muscle deep on left eye upper eyelid bleeding present.
(ii). LW of around 1.0 cm x 0.4 cm x depth could not be probed on left eye lower eyelid, injury over in shape. Contusion with blackening present around lower margine of the wound. Contusion reddish in colour. Bleeding present from the left eye.
Weapon/object used- Hard and Blunt Object with friction force with fire arm.
2. Details of injuries of Jitendra Pandey:-
(i) Reddish contusion swelling of 2 cm x 1.5 cm on (Rt.) parietal head 7 cm above from (Rt.) ear pinna.
(ii) Abraded contusion mark of 3 cm x 2 cm on (Lt.) elbow joint.
(iii) Abrasion of 2 cm x 1 cm on (Lt.) leg 14 cm below the (Lt.) knee joint.
Weapon/object used- Hard and Blunt Object.
3. Details of injuries of Sweechha Pandey:-
(i) 3x2 cm. abrasion seen over anterior surface of right shoulder.
(ii)1x1 cm. abrasion present over anterior aspect of right ear lobe.
(iii) 2x2 cm. abrasion present over right upper arm over lateral aspect.
(iv) 2x2 cm. red abrasion over right breast.
(v) 4-5 small abrasion mark over back 1x1 cm. in size
10. It is evident that later on FIR on the written complaint of applicant was registered as Case Crime No.618 of 2017, under Sections 147,148, 149, 323, 504, 506, 452, 354 (B) I.P.C., Police Station Poora Kalander, District Faizabad on 29.10.2017and it was entered into G.D. No.23 and the injuries of the injured of applicant side were also medically examined, namely Chandrawati, Deepti Pandey (applicant), the injury reports are annexed as AnnexureNo.13, and after going through the injury reports of Chandrawait and Deepti Pandey (applicant), it is found that Traumatic Swelling and abrasion were found on the body of Chandrawati and all injuries are simple in nature by hard and blunt object and injury report of Deepti Pandey (applicant) reveals that two contusion on the left shoulder colour reddish and right knee, all injures are simple in nature. Therefore, charge-sheet was filed after investigation by the Investigating Officer, in case crime No.617 of 2017 (supra) by deleting the offfence under Section 307 I.P.C. but it reveals from the injury report of opposite party No.2 Rakesh Pandey that he received fire arm injury on his left eye, as the blackening was present and doctor, who conducted the Medical Examintion also opined that injuries are fire arm. After investigation the sufficient incrimination evidence was found, disclosing the POCSO , Act, as a result, charge-sheet was filed.
11. It is well settled by the Hon'ble Supreme Court in the case of Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra and Others reported in 2019 SCC OnLine SC 182 that the correctness or genuineness of the allegations is to be decided only in the trial and not in the proceedings under Section 482 Cr.P.C. The relevant paras of the aforesaid judgment are read as under-
"6. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.
7. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not.
8. Relying upon the aforementioned judgments of this Court, Mr. M.N. Rao, learned Senior Counsel appearing for the Appellant submitted that the High Court acted in excess of its jurisdiction in setting aside the order of the Trial Court by which process for summoning the accused was issued. He further submitted that the evaluation of the merits of the allegations made on either side cannot be resorted to at this stage.
9. Mr. R. Basant, learned Senior Counsel appearing for the Respondent Nos. 2 to 6 and 8 to 11 submitted that a proper evaluation of the material on record would disclose that the complaint is frivolous. He submitted that the dispute is essentially of a civil nature and the ingredients of the offences that are alleged against the Respondent are not made out. By making the above statement, Mr. Basant commended to this Court that there is no warrant for interference with the judgment of the High Court.
10. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.
12. Thus, looking into the contents of F.I.R, injuries and statement of injured persons and aforesaid decision of Hon'ble Supreme Court, the application (u/s 482 Cr.P.C.) is misconceived and is liable to be rejected.
13. As Section 35 (1) of POCSO Act, 2012 provides that the evidence of child shall be recorded within a period of thirty days by the Special Court taking cognizance of the offences and Section 35 (2) of POCSO, Act clearly provides that the Special Court shall conclude the trial as far as possible within a period of one year from the date of taking cognizance of the offences. As the cognizance was taken on 10.10.2018 and more than one year, it has not been completed. The court below is directed to comply the order passed by this Court in Criminal Misc. Case No.4106 of 2019 (u/s 482 Cr.P.C.) dated 13.05.2019 and conclud the trail after affording the opportunity of hearing to the parties concerned, within six months.
14. In view of the above, the application (u/s 428 Cr.P.C.) is rejected and interim order is hereby vacated.
15. Ofice is directed to communicate this order for compliance to the trial court.
16. Superintendent of Police, Faizabad and Joint Director, prosecution shall ensure the process for expeditious, disposal.
Order Date :- 20.12.2019 Amit/-