HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 36760 of 2019

Applicant :- Anik Pal

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- R. P. Singh Parihar,Rajesh Shankar Srivastava

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Rajesh Shankar Srivastava, learned counsel for the applicant, Sri G.P. 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 charge-sheet dated 12.08.2018 in S.T. No. 823 of 2018 (SectionState vs. Anik Pal) arising out of Case Crime No.258 of 2018 under Sectionsections 366, Section376 IPC and section 3(2) (V) SC/SectionST Act, Police Station Sipari Bazar, District Jhansi pending before the Court of Special Judge (SC/SectionST Act), Jhansi as well as cognizance order dated 17.09.2018 and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that a bail order was passed on 24.1.2019 in Crl. Appeal No. 5312 of 2018 (Anikpal vs. State of U.P. and another) wherein it is recorded by this Court that the prosecutrix is major and had voluntary gone with the accused-applicant and mainly on this ground bail was granted. Pointing out towards this order it was argued that the daughter of opposite party no. 2 being a major girl had gone to the place where the accused had called her and therefore, this is a matter of consensual sex. It would not be covered under Sectionsection 376 IPC and Investigating Officer has overlooked all these aspects of the matter and has filed charge-sheet erroneously which needs to be quashed.

Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet and has drawn the attention of the Court towards the statement of the victim given under Sectionsection 164 Cr.P.C. in which she has clearly stated that the victim was having conversation with the accused on phone for last one month and that the victim fell in the trap of the accused because of his sweat talks. On 9.10.2018 at about 12.30 P.M. in the night the accused came to the house of the victim and took her to railway station, Greater Noida and there he had taken a house on rent. The accused is a Driver in Max Hospital. He tried to establish physical relationship to which the victim refused but he forcibly put Sindoor in her head on 11.07.2018 and thereafter insisted that he would marry her within a month and under this false promise from 11.07.2018 to 21.07.2018 he established physical relationship with her against her wish. She came to know later on that the accused was a married person having two children.

After investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as 13 witnesses which cannot be disbelieved in proceedings u/s 482 SectionCr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.

I have gone through the FIR. In FIR the opposite party no. 2 has mentioned that on 10.07.2018 his daughter had vanished from home regarding which he had lodged a missing report on the same day. On 23.07.2018 he came to know that his daughter was taken away by the accused who does work at Noida.

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 applicant. 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 SectionCr.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 SectionR. 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.

Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:

“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

(Emphasis added)

The prayer for quashing the proceedings of the aforesaid case is refused.

However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.

The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused-applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.

With aforesaid direction, this application is finally disposed of.

Order Date :- 1.10.2019

AU