Court No. - 75
Case :- APPLICATION U/S 482 No. - 21627 of 2018 Applicant :- Suresh Kankra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Kumar,Shri Krishan Yadav Counsel for Opposite Party :- G.A.,Vikas Srivastava
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicant with the prayer to quash the order dated 2.6.2018 as well as entire proceedings of Criminal Case No. 20 of 2018 (Smt. Lalita Vs. Suresh Kankra) arising out of Case Crime No. 318 of 2018, under Sections 376, 354, 354(B), 504, 506 IPC and 3(2) (V) of SC/ST Act, P.S. Baraut, District- Baghpat, pending in the court of Addl. Sessions Judge, Special (SC/ST Act), Baghpat.
As per the allegations made in the first information report, it is alleged that on 22.9.2017, the applicant had dragged the victim in a sugarcane field and disrobed her and committed rape upon her and on raising alarm by the victim, the applicant had put the country made pistol on her temple and abused her with the name of her caste and threatened her for life.
Learned counsel for the applicant has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicant and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
Learned counsel for the applicant has next submitted that the applicant has been falsely implicated in the present case with ulterior motive just with an intention to drag him in a criminal case with a malafide intention. He has further submitted that on the relevant date and time of incident, he was not present at the scene of incident and had gone to attend the date in the court of Chief Judicial Magistrate, Baghpat and, therefore, the allegations of committing rape upon the victim stands falsified. He has further submitted that the applicant has been falsely implicated at the instance of one Deshpal with whom the applicant having animosity and, therefore, entire proceedings are bad in the eyes of law and are quashed in respect of his argument. Learned counsel for the applicant has placed reliance upon a decision reported in 2017 (5) ADJ 438, Vineet Kumar & Ors. Vs. State of U.P. and another.
Learned counsel for the applicant has also submitted that there are inconsistencies in the statements of the victim recorded under Section 164 Cr.P.C. in respect of the time of incident.
Per contra, learned AGA has submitted that at this stage inconsistencies in the allegations made in the first information report and the statement recorded under Section 164 Cr.P.C. cannot be considered when the evidence is yet to come. He has next submitted that disputed question about the presence of the applicant at the time of incident can also not be determined at this stage as the evidence is yet to come. He has further submitted that from the perusal of allegations made in the first information report and the statement of victim recorded under Section 164 Cr.P.C, specific allegation of committing rape upon the victim has been alleged and at this stage only prima facie case is to be seen against the applicant, as such the entire proceedings cannot be quashed.
The judgment cited, on which the applicant has placed reliance is based on its own fact, which are quite distinguishable from the facts of the present case in which specific allegations of commission of rape has been made in the FIR, which has further been reiterated in the statement recorded under Section 164 Cr.P.C. There is absolutely no reason at this stage for the complainant to falsely implicate the applicant.
Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the impugned order as well as entire proceedings is therefore refused.
However, it is directed that if the applicants appear/surrender before the court below and apply for bail, their prayer for bail shall be considered and decided as expeditiously as possible after giving opportunity of hearing to both the parties.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of.
Order Date :- 27.11.2019 KU