HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- CRIMINAL REVISION No. – 2879 of 2019

Revisionist :- Diksha Gupta

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

Counsel for Revisionist :- Bheshaj Puri

Counsel for Opposite Party :- G.A.,Jayprakash Tiwari

Hon’ble Dinesh Kumar Singh-I,J.

Heard the arguments of learned counsel for the revisionist Shri Bheshaj Puri. None has appeared from the side of opposite party no. 2, though he had appeared on the earlier date i.e. 20.09.2019, nor any counter affidavit has been filed from his side. Learned A.G.A. for the State Shri Amit Kumar Singh is present.

This application under Section 482 of Cr.P.C. has been moved on behalf of the revisionist with a prayer to set aside the order dated 20.06.2019 passed by Additional Chief Judicial Magistrate, F.T.C., Shahjahanpur, in Criminal Case No. 690 of 2018 (SectionState v. Krishna Gupta), arising out of Case Crime No. 2597 of 2017, under Sections 376 and Section323 of I.P.C., Police Station – Katra, District – Shahjahanpur.

It is argued by learned counsel for the revisionist that this Court had passed a fresh order on 12.04.2018 on Application u/s 482 No. – 11782 of 2018 (SectionKrishna Gupta v. State of U.P. and Another) to the following effect :-

” Vakalatnama filed on behalf of Bheshaj Puri, learned counsel for O.P. No. 2 is taken on record.

Heard the learned counsel for the applicant, learned A.G.A. for the State of U.P. and learned counsel appearing on behalf of O.P. No. 2 and perused the record.

This application under Sectionsection 482 Cr.P.C. has been filed with a prayer to stay the further proceedings of Case No. 690 of 2018 (State Vs. Krishna Gupta) as well as Charge Sheet dated 5.2.2018 and N.B.W. order dated 15.3.2018 arising out of case crime no. 2597 of 2017 under Sectionsection 376,Section323 I.P.C. P.S. Katra district Shahjahanpur pending in the court of Civil Judge (S.D.)/F.T.C.-24 Shahjahanpur.

It is the submission of the learned counsel that O.P. No. 2 is a lady of easy virtue. She and her father are crooked person and they are in the habit of getting O.P. No. 2 marry and then after taking money and jewellery from the in-laws leave the husband. It is the further submission of the learned counsel that marriage proposal of O.P. No. 2 was also received by the father of the applicant but the same was refused as on enquiry the history of O.P. No. 2 was came to the knowledge of the applicant and his father.

A complaint case was also filed by the father of the complainant much before the date of the FIR i.e. on 3.8.2017. In the complaint itself all the facts regarding O.P. No. 2 is being mentioned and this FIR has been filed just to blackmail the applicant and his father.

It is next contended by the learned counsel that from the allegation made against the applicant charge under Sectionsection 376 I.P.C. is also not made out. It is the further contention of the learned counsel that seeing the nature of the case and allegation made against O.P. No. 2 this court ought to stop the proceedings against the applicant and the court should not allow the nefarious acts of O.P. No. 2 to succeed whereas learned counsel O.P. No. 2 submitted that it is admitted to O.P. No. 2 that she married twice and divorced twice. The learned counsel for O.P. No. 2 also elaborated the version of O.P. No. 2 in the statement under Sectionsection 164 Cr.P.C. that the applicant has made physical relation with O.P. No. 2 on the pretext that he will marry O.P. No. 2.

In the facts and circumstances it cannot be said that no offence is made out against the applicant. All the facts that are being raised can only be decided by the court concerned and the same cannot be looked in a petition under section 482 Cr.P.C.

So far the allegation under Sectionsection 376 I.P.C. is concerned, the same can also be decided by the court concerned. This court is constrained to make any observation in this regard. In the FIR it has been stated that the applicant is having relation with O.P. No. 2 for seven years and in case any complaint is being filed by the father of the applicant in the year 2017 then the same cannot be said to be bonafide and it cannot be said that the FIR is counter blast to the complaint filed by the father of the applicant.

Seeing the peculiar facts of the case a suitable direction can be issued to the trial court.

This petition is disposed of with a direction to the trial court that in case within one month from today a discharge application is being moved, the same will be decided as per law after giving opportunity of hearing to O.P. No. 2 also.

All the facts that are being raised before this court can very well be taken before the trial court and the trial court after hearing the parties and perusing the record shall pass a speaking order.

Till the disposal of the discharge application, no coercive action shall be taken against the applicant.”

Thereafter, it is argued by him that since by the said order, it was directed that no coercive steps shall be taken against the accused-applicant till the disposal of the discharge application, although no specific date was fixed for disposal of the discharge application, the revisionist had moved an application before the court concerned on 08.04.2019 with the prayer that Criminal Case No. 690 of 2018 (SectionState v. Krishna Gupta), arising out of Case Crime No. 2597 of 2017, under Sections 376 and Section323 of I.P.C., Police Station – Katra, District – Shahjahanpur be committed to the Court of Sessions, whereon the impugned order has been passed by the Additional Chief Judicial Magistrate, Fast Track Court, Shahjahanpur, holding that the said application is premature because only after appearance of the accused and compliance having been made under Section 209 of Cr.P.C., the file could be committed to the Court of Sessions and thereafter, had fixed 04.09.2019 for the appearance of the accused and rejected the application of the revisionist. In this case, it is argued that the said accused-opposite party no. 2 has deliberately not got himself bailed out in view of the order dated 12.04.2018 passed by this Court. At the end of the order, it is mentioned that till the disposal of discharge application, no coercive action shall be taken against the applicant. In view of that order, neither the accused is appearing before the court concerned to get himself bailed out, so that he could be provided copies of the challani documents under Section 209 of Cr.P.C. for the case to be committed to the Court of Sessions, nor any application for discharge of the accused is possible to be moved before the Sessions Judge. Since no counter affidavit has been filed in this case, I find that because of the order dated 12.04.2018 passed by this Court, it appears that accused-opposite party no. 2 is misusing the said order in appearing before the court concerned, it is directed that he shall appear before the court concerned within a period of one month from today positively and get himself bailed out and in case he does not do so, the court concerned shall be at liberty to take him into custody in accordance with law and proceed further.

With the aforesaid observations/directions, the instant application stands disposed of.

Order Date :- 19.10.2019

I. Batabyal