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Ajay Katara vs State Of Up And Another on 16 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 66 AFR

Reserved on 21.11.2019

Delivered on 16.12.2019

Case :- APPLICATION U/S 482 No. – 41533 of 2019

Applicant :- Ajay Katara

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Vimlendu Tripathi,Ajay Kumar Srivastava

Counsel for Opposite Party :- G.A.,Santosh Kumar Yadav

Hon’ble Rajul Bhargava,J.

1. Heard Sri Brajesh Sahai, learned Senior Advocate assisted by Sri Vimlendu Tripathi, Sri Andleeb Naqvi, Sri Bhavya Sahai, learned counsels for the applicant, Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Santosh Kumar Yadav, Sri Pradeep Kumar, counsel for opposite party no. 2 and Sri Vinod Kant, learned Additional Advocate General as well as learned A.G.A. for the State and perused the material available on record.

2. The present application under Section 482 Cr.P.C. has been filed for quashing the summoning and cognizance order dated 3.1.2019 passed by learned A.C.J.M.-II, Budaun and supplementary Charge-sheet No.163A dated 5.12.2018 in Case No.410 of 2014, arising out of Case Crime No.443 of 2013, under Sections 363, Section366, Section376 I.P.C., Police Station- Sehaswan, District- Budaun, pending in the court of Additional Chief Judicial Magistrate-II, Budaun as well as all consequential proceedings.

3. Be it noted, at this juncture as is observed in the order dated 21.11.2019 that since the learned Senior counsel appearing for opposite party no.2, learned Additional Advocate General and learned Additional Government Advocate have categorically stated that they do not intend to file any response/counter affidavit in the present application and therefore, the averments made in the application stands unrebutted and the Court is left with no other option but to accept the averments made in the application as it is to be correct on its face value.

4. The brief facts leading to the present application are that the opposite party no.2, Bhagwan Singh, who is Yadav by caste lodged a first information report on 28.6.2013 at 4:45 P.M. with the allegations that his daughter/victim R (name not being disclosed) aged about 12 years and student of class 6th had come home from her paternal grandfather’s house to spend summer holidays. On 23.6.2013 at about 6 P.M. his daughter went to attend call of nature where from she was enticed away by her cousin brother, Sukhpal, real sister of Sukhpal namley Smt. Chetaniya, Jaiwahan husband of Chetaniya, Shyam Singh brother of Sukhpal after enticing and terrorising her kidnapped her. When she did not return home for long, a frantic search was made and the first informant was told by persons of his village namely Durgesh and Chote that aforesaid five named accused have been seen taking his daughter along with them. Subsequently, victim R and four others filed a Criminal Misc. Writ Petition No.15345 of 2013 (Smt. Rinki and 4 Sectionothers vs. State of U.P. And 2 others) before this Court and vide order dated 31.7.2013 the Court stayed the arrest of named accused. The said writ peition was however dismissed as infructuous vide order dated 1.5.2014 as the charge-sheet was laid against Sukhpal for kidnapping a minor girl. Be it noted that the other named accused who are closely related to Sukhpal were exonerated during investigation.

5. It is pertinent to mention here that the applicant and other co-accused are neither named in the first information report nor any suspicion was laid on them, however, pursuant to the orders of the Court in the aforesaid writ petition the statement of the victim was recorded under Section 161 Cr.P.C. On 22.8.2013 wherein she has stated that she loved Sukhpal and had gone with him and got married in a temple at Ghaziabad where they started leading a married life as husband and wife. There she met one Ajay Katara and he took both of them to Ashok Vatika Sahibabad where he raped her. She has also stated that Sukhpal had made physical relations with her consent. It is also pertinent to note here that the victim did not disclose any date and time of the alleged rape by Ajay Katara and besides him she did not state that anyone else had also raped her. The parentage and residence of Ajay Katara was also not disclosed. She and Sukhpal somehow escaped from there.

6. The victim was produced before the C.J.M. for recording her statement under Section 164 Cr.P.C. On the same day in which she has made several improvements and has stated that she has left her studies about 5-6 years back and was staying at her Nanihal and has come to her village (no date disclosed). Then she called co-accused Sukhpal to Sahaswan and on the pretext of attending call of nature, she came to Sahaswan and from there she went to Ghaziabad and when she got down at the bus stand she met three persons in a white car who asked them as to why they are roaming about. Then they told them that in fact they have run away from their house on being annoyed by the family members then these three persons said that they will help her though they do not know them, out of which one of them said “ये अजय कटारा बैठे हैं, ये सभी की मदद करते हैं तभी उन लोगों ने मुझे व सुखपाल को अपने साथ गाड़ी में बिठा लिया और चल दिये तथा सुखपाल को रास्ते में गाड़ी से उतार दिया तथा मुझे लेकर साहिबाबाद अशोक वाटिका में एक मकान में ले गये वहाँ पर अजय कटारा व उनके दो साथी मेरे साथ शराब पीकर मेरे साथ बुरा काम करते थे व आपस में नाम जयवीर और जोगेन्द्र लेते थे उन्होने मुझे आठ दिन तक रखा और मुझे जान से मारने की धमकी देकर गाजियाबाद अड्डे पर छोड़ गये वहीं सुखपाल मिला और हम दोनों इलाहाबाद चले गये तथा वहाँ पर पेश हुए। यही मेरा बयान है।” Based on the statement of the victim the case was converted under Section 376 I.P.C. at P.S. Sahaswan, district Budaun, be it noted that no F.I.R. was lodged at P.S. Sahibabad, district Ghaziabad either by the victim or Sukhpal. However, on 6.10.2013 the Investigating Officer finding that the victim is minor filed charge-sheet no.163 of 2013 against Sukhpal under Sections 363, 366 I.P.C. while exonerating remaining four named accused persons that their complicity has been found false and it is noted in the said charge-sheet that the investigation against the accused whose names were disclosed by the victim is going on.

7. At this juncture, it is significant to mention here that as the parentage and residence of the accused were not disclosed by the victim and Sukhpal who though has now been made a witness in the impugned charge-sheet. After thorough investigation vide SCD No.1 dated 20.12.2013 the investigation against Ajay Katara and two other persons was closed due to incomplete details of the accused named by the victim and they could also not be found in the area where the victim was allegedly raped and the Investigating Officer has also noted that there does not appear any possibility of being traced in near future and thus closed the investigation. The said Parcha of the case diary has been appended as Annexure-11 to the affidavit. On the charge-sheet against Sukhpal under Sections 363, Section366 I.P.C. cognizance was taken by A.C.J.M., 2nd on 29.3.2014. The certified copy of the charge-sheet has been annexed as Annexure-9 to the affidavit.

8. It is interesting to note that the aforesaid charge-sheet was challenged by Sukhpal in Criminal Misc. Application (U/s 482 SectionCr.P.C.) No.24560 of 2014 and the Court stayed further proceedings of Case Crime No.410 of 2014 (SectionState vs. Sukhpal and others) until further orders vide order dated 11.7.2014. The said application is still sub judice before the Court.

9. Be it noted, that after the closure of investigation against the accused whose names were introduced with some ulterior purpose in the year 2013 itself, no protest petition or any objection was filed by opposite party no.2 or victim. However, after a gap of five years i.e. on 20.6.2018 the victim personally moved an application before A.J.C.M-IInd, Badaun in Case No.410 of 2014, under Sections 363, Section366 I.P.C. that she has disclosed the names of accused persons in her statement under Sections 161 and Section164 Cr.P.C. but the police has not taken any steps to arrest them and therefore S.H.O. Sahaswan be directed to arrest the accused and put them to trial. In this respect a report was called and the court was apprised that further proceedings of Case No.410 of 2014 have been stayed until further orders in Criminal Misc. Application (U/s 482 SectionCr.P.C.) No.24560 of 2014 and thus vide order dated 10.7.2018 the application of the victim was rejected in view of the stay orders of the Court. The victim being aggrieved preferred a Criminal Misc. Application (482 SectionCr.P.C.) No.25888 of 2018 (SectionSmt. Rinki vs. State of U.P. and another) before this Court wherein the order of the Magistrate dated 10.7.2018 was set-aside and a direction for investigation to be carried out by the police in this regard was given and the matter was remitted to the learned court to decide the application of the victim afresh and directed the Magistrate to ensure that the investigation against those accused for offence under Section 376 I.P.C. is taken to its logical end strictly in accordance with law within a time bound manner. Thus, the application was disposed of vide order dated 1.8.2018.

10. Pursuant to the aforesaid order, the investigation was reopened after more than five years on 3.9.2018 and the Investigating Officer claims to have visited the place of victim in District Badaun and took her statement under Section 161 Cr.P.C. and also of her husband, Sukhpal. For ready reference it is germane to reproduce the statement of the victim recorded under Section 161 Cr.P.C. and in this behalf affidavits were also filed by the victim and her husband, Sukhpal. The relevant part of the statement is quoted as under:-

**eSaus vius xkWo ls lq[kiky dks Qksu fd;k fd rqe lgloku vk tkvks rc eSa ?kj ls ‘kkSp ds cgkus ?kj ls fudy dj lgloku vk;h vkSj ogkW ls jksMost esa cSBdj xkft;kckn igqWphA ogkW ij cl vM~Ms ij mrjdj ckgj vk;s rks ,d lQsn xkMh esa rhu vkneh feys mUgksaus ge yksxksa dks ns[kdj dgk fd dgkW ls vk;s gks vkSj ;gkW dSls ?kwe jgs gks rc ge yksxksa us muls dgk fd ge yksx ?kj ls ukjkt gksdj vk;s gSA rc bu rhuksa us ge yksxksa ls dgk fd ge yksx rqEgkjh enn djsaxsA muesa ls ,d us dgk fd esjk uke vt; dVkjk gSA eSa lcdh enn djrs gSaA rc ge nksuksa fo’okl esa vk x;sA vkSj ge nksuksa dks xkMh esa cSBk fy;k vkSj py fn;s rc jkLrs esa lq[kiky dks xkMh ls mrkj fn;k rFkk eqs lkfgckckn v’kksd okfVdk esa ,d edku esa j[kk ogkW vt; dVkjk o mlds lkfFk;ksa us esjs lkFk ‘kjkc ihdj cqjk dke fd;k djrs FksA eqs ogkW vkB fnu j[kk eqs tku ls ekjus dh /kedh nsrs FksA vkSj vkil esa ,d nwljs t;ohj] ;ksxsUnz uke ysrs FksA mlds ckn eqs xkft;kckn cl vM~Ms ij NksM x;s lkgc ogkW eqs lq[kiky feyk rc ge nksuksa bykgkckn pys x;sA lkgc ge nksuksa us viuh ethZ ds ‘kknh dj yh vkSj ifr iRuh ds :i esa jg jgs gSaA lkgc ge nksuksa ls 02 cPps Hkh gSaA lkgc esjs ifr us xkft;kckn tkdj ftUgksaus esjs lkFk xyr dke fd;k gSA mudk uke irk lc tkudkjh dj yh gSA bl lEcU/k esa SSP cnk;wW dks ‘kiFk i fn;s gSA tks Mkd ls Fkkus eas igqWp x;s gksaxsA lkgc ;gh esjk c;ku gSA**

11. Even in this statement, the victim has not stated as to how and from whom she came to know the parentage and residence of the applicant and other accused. Even in the subsequent statement, neither any date nor time has been disclosed by her. It is quite vague in itself. The relevant part of the statement of Sukhpal recorded on 8.10.2018 is quoted as under:-

“lq[kiky iq fj”khiky fuoklh xwnjkxat Fkkuk mkuh ftyk cnk;wW gky irk jSlh dk uxyk Fkkuk dknj pkSd ftyk cnk;wW us iwNus ij crk;k fd lkgc esjs xkao ls fjadh iq Hkxoku flag vius ukuk fot; flag ds ;gkW jgrh FkhA eqs mlls I;kj gks x;kA ge yksx Nqi Nqi ds feyrs jgrs FksA mlds ckn fjadh vius xkWo eqMkjh fl/kkjiqj pyh x;hA ogkW ls eqs Qksu djrh FkhA ,d fnu Qksu djds eqs lgloku cqyk;k vkSj dgk fd eSa lgloku vkrh gwWA vkSj ;gkW ls Hkkx pyrs gSaA rc lkgc eSa lgloku vk;k tgkW eqs fjadh feyh rc ge nksuksa jksMost esa cSBdj xkft;kckn igqWps ogkW cl ls mrjdj cSBs Fks rHkh rhu yksx ,d lQsn xkMh ls vk;s vkSj ge nksuksa ls iwNk dgkW ls vk;s gks rc ge nksuksa us dgk fd ge nksuksa ?kj ls ukjkt gksdj vk;s gSA rc ,d O;fDr us viuk uke vt; dVkjk crk;k fd ge yksx rqEgkjh enn djrs gSaA vkSj xkMh esa cSBkdj py fn;s mlds ckn jkLrs esa eqs xkMh ls mrkj fn;k vkSj fjadh dks ysdj pys x;sA eqs lkfgckckn esa isVªksy iEi ds ikl ,d edku esa cUn dj fn;kA mlds ckn 8 fnu ckn eqs cl vM~Ms ij NksMkA ogkW eqs fjadh feyh rc fjadh us eqs crk;k fd rhuksa us esjs lkFk ‘kjkc ihdj cqjk dke fd;kA rc ge nksuksa bykgkckn pys x;s ogkW eSaus dk;Zokgh dhA lkgc ge nksuksa us ‘kknh dj yh gSA 2 cPps Hkh gSaA lkgc xkft;kckn esa ftu yksxksa us esjh iRuh ds lkFk ‘kjkc ihdj cqjk dke fd;k mldh eSaus iwjh tkudkjh dj yh gSA vkSj SSP lkgc ls eSaus viuk o viuh iRuh dk ‘kiFk i fn;k gSA lkgc ;gh esjh c;ku gSA”

12. Solely on the basis of statements of the victim, her husband (though facing charge of kidnapping) and their affidavits, the applicant and other co-accused have been charge-sheeted vide impugned charge-sheet dated 5.12.2018. The Investigating Officer has noted as under:-

“Jheku th fuosnu gS fd oknh Jh Hkxoku flag iq myQr flag fuoklh eqMkjh fl/kkjiqj Fkkuk lgloku ftyk cnk;wW dh rgjhj ij fnukad 28-06-13 dks eqdnek mijksDr iathd`r gksdj iwoZ foospd }kjk foospuk dh x;hA nkSjkus foospuk vfHk;qDr lq[kiky iq fj”khiky fuoklh cMsfj;k Fkkuk lgloku ftyk cnk;wW ds fo:) fnukad 06-10-13 dks vkjksi i la0163@13 ekuuh; U;k;ky; iszf”kr fd;k tk pqdk gSA vU; rhu uketn O;fDrvkas psrfu;k] t;okgu o ‘;ke flag dh uketnxh xyr ik;h x;hA blds ckn ekuuh; gkbZdksVZ bykgkckn ls mDr vfHk;ksx dh iqu% foospuk dk vkns’k gqvkA ftldh foospuk m0fu0 vo/ks’k flag }kjk dh x;hA muds LFkkukUrj.k gks tkus ij fnukad 27-11-18 dks eq foospd ds lqiqnZ dh x;hA foospuk xzg.k dj okn voyksdu mDr vfHk;ksx dh iqu% foospuk dh x;h rks foospuk ls ihfM+rk ds 161 lhvkjihlh0 o 164 lhvkjihlh0 ds c;kuksa o lq[kiky ds 161 lhvkjihlh0 ds c;kuksa o ‘kiFk iksa ls vfHk;qDrx.k 1vt; dVkjk iq eueksgu 2t;ohj iq uRFkw 3tksxsUnz iq jkeflag fuoklhx.k v’kksd okfVdk dkyksuh edku ua02 F Fkkuk lkfgckckn ftyk xkft;kckn ds uke izdk’k esa vk;sA eq foospd }kjk izdk’k esa vk;s vfHk;qDrx.k ds irs ij xkft;kckn Fkkuk lkfgckckn {ks esa v’kksd okfVdk dkyksuh vk;k ryk’k djus ij vfHk;qDrx.k ugha feysA vc rd dh rekeh foospuk c;ku ihfM+rk 164 lhvkjihlh0 o 161 lhvkjihlh0 rFkk c;ku lq[kiky ds vfrfjDr vU; dksbZ lk{; ugha gSA ihfM+rk ds c;ku 164@161 lhvkjihlh0 o lq[kiky ds c;kuksa ds vk/kkj ij vfHk;qDrx.k dk pkyku tfj;s vkjksi i la0163 A@18 ekuuh; U;k;ky; fd;k tkrk gSA ekuuh; U;k;ky; ls vuqjks/k gS fd okn ijh{k.k vfHk0x.k vt; dVkjk vkfn 03 dks ryc dj mfpr n.M ls nf.Mr djus dh d`ik djsaA foospuk lekIr dh tkrh gSA pwafd c;ku ihfM+rk 161@164 lhvkjihlh0 o c;ku lq[kiky ls vfHk0x.k ds fo:) /kkjk 363@366@376 vkbZihlh0 dk tqeZ c[kwch lkfcr gSA”

13. I may record once again at the cost of repetition that aforesaid facts have not been disputed either by the learned Senior Advocate appearing for opposite party no.2 or by the State.

14. Sri Vimlendu Tripathi, learned counsel appearing on behalf of applicant has argued that it is a classic case of false implication and of no evidence against the applicant as the applicant was a star witness in famous Nitish Katara murder case in which the known criminal and politician of Uttar Pradesh and sons of Sri D.P. Yadav namely Vikas Yadav and his nephew Vihsal Yadav were involved and were ultimately convicted for murder of Nitish Katara and sentenced to life imprisonment by the trial court. Their conviction was upheld by the High Court of Delhi by awarding fixed terms of 30 years without remission, which was upheld in an appeal before the Hon’ble Supreme Court. It has been argued that in fact the applicant is paying the price for speaking the truth in the court of law and helping in administration of justice by deposing truthful substantive evidence against the accused in the aforesaid murder case and the applicant was a star witness as all other witnesses of fact had turned hostile on account of threat, intimidation and coercion of Sri D.P. Yadav and his henchmen. Thereafter, the applicant was falsely implicated in several cases at the instance of Sri D.P. Yadav which have been detailed in Para 4 of the affidavit and the same stands unrebutted as on date. The applicant apprehending serious danger to his life was even provided four police armed guards since 25.4.2002 on account of increased threat perceptions.

15. Sri Tripathi has further argued that the present case is a classic example of abuse of process of court and miscarriage of justice as is apparent on the face of record and the following undisputed facts establishing falsehood of allegation and the ground for quashing the proceedings may be taken into account by the court while exercising the inherent power conferred under Section 482 Cr.P.C. and the same are quoted as under:-

a) The case relates to district Budaun regarding incident of elopement of alleged victim R with her boyfriend on 23.6.2013, wherein the name of applicant does not come into picture for next two months and was introduced for the first time in the statement of victim R under Section 161 Cr.P.C. On 22.8.2013 by introducing an improbable incident of District Ghaziabad.

b) The allegations about the alleged incident of district Ghaziabad could not be included into the Case Crime No.443 of 2013 (criminal case in question) registered for alleged incident of district Budaun, in view of the fact that both alleged incidents/offences are neither continuing offences nor relate to each other so as to make a series of same transaction and investigation about the alleged incident of district Ghaziabad is absolutely illegal.

c) The story relating to Ghaziabad incident is highly improbable, as there was no occasion for the alleged victim R and her boy friend to accompany a stranger in an entirely new city of Ghaziabad on mere asking for help by such stranger without disclosing time, date and exact place of gang-rape upon the victim.

d) Despite allegation of kidnapping of alleged victim R in district Ghaziabad in presence of her boyfriend and despite allegation of retaining the girl for a long period of eight days, no separate report was lodged in district Ghaziabad or any information was given to any authority.

e) Had the allegation of kidnapping of alleged victim R in district Ghaziabad been true to any sense, her boy friend who allegedly did not know the applicant personally would have certainly run pillar to post to save his girl friend in natural course of events under the situation/script played framed by the alleged victim R regarding the incident of Ghaziabad.

f) There is no investigation as to how a person having 24×7 police security would commit such a crime.

g) There is no investigation as to how an allegation for offence under Sectionsection 363/Section366 I.P.C. against Sukhpal and his family members connected with district Budaun can have any nexus with the allegation of rape by the applicant in district Ghaziabad.

h) The entire investigation in the case in hand, which relates to the applicant, is perfunctory and is a sham process, in which the I.O. didn’t bother to verify any of the allegations levelled against the applicant by collecting any corroborative material/evidence.

i) There is no reason shown as to why Victim R personally moved an application on 20.06.18 i.e., after a gap of five years, for arrest of applicant and two other persons.

j) The applicant does not know the alleged co-accused Jaiveer son of Naththu and Jogendra son of Ram Singh, who have also been charge-sheeted along with him in the impugned charge-sheet. The address of applicant has been shown as address of these two persons also. The I.O. didn ‘t bother to collect any information about identity of co-accused Jaiveer and Jogendra when none of the added accused were put up for identification in order to fix their identity.

k) lt appears to the applicant that these two persons are non-existent and are fake persons and these two persons have been introduced in the case in hand just to give strength to the false allegations of rape levelled against the applicant. The applicant was, however, not put up for identification to fix his identity by the victim or her alleged husband throughout the investigation.

l) The malafide behind the allegations against the applicant is writ large in view of factual backdrop of the status of applicant, his admitted enmity with Vikas Yadav and Vishal Yadav (the son and nephew respectively of D.P. Yadav), the history of his false implication in as many as twenty four (24) criminal cases, wherein either final report was submitted by the local police in favour of applicant or the case resulted into acquittal, or the proceedings have been stayed by the High Court.

16. Before dealing with present application, I would, in fact, like to record settled proposition of law of the land in respect of exercise of inherent powers of the Court.

17. Most importantly as noted by the Court, against the averments made by the applicant in the application, no response/counter affidavit whatsoever has been filed by the informant/opposite party no.2 inasmuch as learned Senior Advocate appearing for opposite party no.2, Sri Anoop Trivedi and Sri Vinod Kant Srivastava, learned Additional Advocate General flatly refused to file any response/counter affidavit to the averments made in the application, despite being repeatedly apprised by this Court to file response in rebuttal of the averments, otherwise the Court would be constrained to assume averments in the application as correct. Even during lengthy hearing, material relied upon by the applicant has not been refuted by the learned senior counsel appearing for the opposite party no.2 and the State.

18. Learned counsels appearing on behalf of opposite party no.2 have, however, placed reliance on the judgements rendered by this Court in SectionRam Dayal and others vs. State of U.P. And others [2019 (4) ADJ 404] and have submitted that the said judgment contains the entire law on the subject i.e. the powers of High Court to quash the proceedings in exercise of inherent power conferred under Section 482 Cr.P.C. I may record that the said judgment is compendium of most of the important judgments rendered by different High Courts and Apex Court and the ratios laid down therein as to under what facts and circumstances in exercise of inherent power under Section 482 Cr.P.C. the proceedings arising out of the Charge-sheet or the complaint case can be quashed at the very threshold without affording an opportunity to the prosecution to lead evidence. It would be germane to quote Para 74 of the aforesaid judgment which is essentially the crux of the ratios laid down by the Apex Court in the judgments cited therein. The Paragraph 74 is quoted as under:-

“74. Thus, the only question which survives for consideration is whether this Court in exercise of its jurisdiction, under Sectionsection 482 Cr.P.C. can weigh the testimony of a witness even when a full fledged trial is yet to take place. The issue so involved is no longer res-integra and stands considered by the Apex Court in the case of State of Orissa and Another Vs. Saroj Kumar Sahoo, reported in 2005 (13) SCC 540, wherein the following has been observed in paragraphs 10 and 11:-

“10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in SectionState of Haryana v. Bhajan Lal, (1992) Supp 1 335. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Cr.P.C. except under an order of a Magistrate within the purview of Section 155(2) of the Cr.P.C.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Cr.P.C.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the SectionCr.P.C. or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the SectionCr.P.C. or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

“11. As noted above, the powers possessed by the High Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: SectionJanata Dal v. H. S. Chowdhary, [1992] 4 SCC 305, and SectionRaghubir Saran (Dr.) v. State of Bihar, AIR (1964) SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: SectionDhanalakshmi v. R. Prasanna Kumar, [1990] Supp SCC 686, SectionState of Bihar v. P. P. Sharma, AIR (1996) SC 309, SectionRupan Deol Bajaj v. Kanwar Pal Singh Gill, [1995] 6 SCC 194, SectionState of Kerala v. O.C. Kuttan, AIR (1999) SC 1044, SectionState of U.P. v. O.P. Sharma, [1996] 7 SCC 705, SectionRashmi Kumar v. Mahesh Kumar Bhada, [1997] 2 SCC 397, SectionSatvinder Kaur v. State (Govt. of NCT of Delhi, AIR (1996) SC 2983 and SectionRajesh Bajaj v. State NCT of Delhil, [1999] 3 SCC 259).”

This Court while disposing of the application of the applicant for quashing the proceedings had observed in Para 75 that the Court is handicapped to examine the veracity of the statement of the prosecutrix as recorded under Section 202 Cr.P.C. There is no such other impeccable evidence on the record on the basis of which this Court may discard the statement of the prosecutrix. It is for the trial court to weigh the statement of the prosecutrix in the light of the attending circumstances referred to above, and then arrive at its own conclusion as to whether the applicants are guilty or not.

19. Besides it, learned counsels for opposite party no.2 have relied on Kaleem and 04 Sectionothers vs. State of U.P. And another 2019 LawSuit(All) 1513, SectionParbatbhai Aahir vs. State of Gujarat 2017 SCC OnLine SC 1189, SectionState of Bihar vs. Rajendra Agrawal 1996 LawSuit (SC) 143, SectionMushtaq Ahmad vs. Mohd. Habibur Rehman Faizi 1996 LawSuit (SC) 230, SectionState of U.P. vs. O.P. Sharma 1996 LawSuit (SC) 276, SectionState of Himachal Pradesh vs. Pirthi Chand 1995 LawSuit (SC) 1177. The essence of arguments of learned counsels for opposite party no.2 is that the Court is not justified to embark upon an inquiry into reliability/genuineness of allegations made in the F.I.R. Or complaint and the extraordinary and inherent power did not confer an arbitrary jurisdiction to the Court to act according to its capricious way. There is absolutely no quarrel with the proposition of the law laid down by the Apex Court in the judgments cited from the other side, however, we cannot loose sight of the law in respect of precedent, is well settled that a little difference in facts or additional facts may make lot of difference in the precedential value of a decision. In Herrignton vs. British Railways Board (1972 (2) WLR) Lord Morris said:

“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

20. Keeping in view the well established law in respect of exercise of inherent power under Section 482 Cr.P.C. and after considering the rival submissions made by learned counsels for the applicants and opposite party no.2 and perusing the entire material on record which stands unrebutted, I propose to deal with the question as to whether the proceedings against the applicant which are claimed to be an abuse of process of law, inasmuch as, even if the entire material collected during evidence is assumed to be true on its face value, whether any commission of cognizable offence under Section 376 I.P.C. is made out or not or by the evidence collected during investigation his complicity is established by any evidence accepted to be true on its face value.

21. This Court further noticed that Investigating Officer while submitting supplementary charge-sheet no. 163 of 2018 dated 5.12.2018 has acknowledged that during entire investigation except the statements of the victim recorded under Sections 161 and Section164 Cr.P.C. and the statement of Sukhpal (who had been charge-sheeted in the present case), there is no other evidence collected by him. It is noted:-

“अब तक कि तमामी विवेचना बयान पीड़िता १६४ सी.आर.पी.सी. व १६१ सी.आर.पी.सी. तथा बयान सुखपाल के अतिरिक्त कोई साक्ष्य नहीं है।”

22. Parentage and residence of the charge-sheeted accused, Ajai Katara (applicant) and co-accused (non-applicants, Jaivir and Jogendra) have been disclosed in the affidavits filed by the victim and Sukhpal. I may record that even in the impugned supplementary charge-sheet dated 5.12.2018 witnesses cited are: First informant, Bhagwan Singh, Serial No.1, Smt. R. and Sukhpal at serial no.3, though admittedly Sukhpal has been made accused in the F.I.R. and is charge-sheeted accused whose proceedings though have been stayed by this Court in Criminal Misc. Application under Section 482 Cr.P.C. (SectionSukhpal vs. State of U.P.) which is still pending consideration.

23. The Court cannot permit the prosecution to go on if the case falls in any one of the categories as illustrated and enumerated by the Apex Court in State of Haryana Versus Bhajan Lal 1992 SCC(Crl) 426 (Para 102) supra.

24. The Court, therefore, has no hesitation, whatsoever, in concluding that judicial conscience of the Court on the basis of material before it has persuaded to quash the criminal proceedings pending against the applicant in exercise of its inherent powers as vested in it under Section 482 Cr.P.C. The Court is quite conscious of the fact that the victim has named the applicant in her statement under Section 164 Cr.P.C., but the names of accused were disclosed to her by themselves and during investigation they were not put up for identification in order to fix their identity which would have clinched the issue and applicant and other co-accused, could not have escaped from the clutches of law. Therefore, in my considered opinion, it is a fit case where the Court in exercise of its inherent power under Section 482 Cr.P.C. should quash the entire proceedings against the applicant as the same squarely falls within the para 3 7 of Bhajan Lal’s case. Admittedly, it is not disputed by opposite party no.2 that the applicant and other co-accused whose names were introduced during investigation were not known to them from before, as admittedly the applicant is a resident of district Ghaziabad and no first information report was lodged either by opposite party no.2 or her alleged husband who himself is facing trial under Sections 363, Section366 I.P.C. at Ghaziabad in the year 2013 itself or moved any application for the alleged incident be investigated thoroughly by the police station within whose local jurisdiction the alleged offence of gang-rape had allegedly taken place. Though, as noted time and again that no date, time, parentage and residence of the accused whose names were introduced by the prosecutrix with an ulterior motive after two months of kidnapping by accused/witness Sukhpal regarding commission of gang-rape as alleged at Sahibabad, district Ghaziabad has been disclosed by the victim and co-accused Sukhpal in the statements recorded under Sections 161 and 164 Cr.P.C.

25. Therefore, in view of above, the supplementary charge-sheet and the entire proceedings arising out of it in the aforesaid case are hereby quashed so far as the applicant is concerned.

26. The present Criminal Misc. Application (U/s 482 SectionCr.P.C.), accordingly, stands allowed.

27. A copy of this order be certified to the lower court forthwith.

Order Date :- 16.12.2019

Vikas

 

 

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