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Nawaj Sarif Khan vs State Of U.P. And Another on 26 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

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Court No. – 65

Case :- APPLICATION U/S 482 No. – 35833 of 2019

Applicant :- Nawaj Sarif Khan

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

Counsel for Applicant :- Matiur Rehman Khan,Saqib Ahmad

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Matiur Rehman Khan, learned counsel for the applicant and Sri Attrey Dutt Mishra, learned A.G.A. for the State.

This application under Section 482 Cr.P.C. has been filed with a prayer to quash impugned charge sheet dated 20.01.2019 as well as the entire Criminal Proceeding of Case Crime No. 75 of 2018 (State Vs. Nawaj Sarif Khan), pending in the court of Additional Chief Judicial Magistrate, Ballia, Police Station Khejuri, District Ballia, under Section 376, Section406, Section419, Section420 as well as the cognizance order dated 04.04.2019 with a further prayer to stay the further proceeding in the aforesaid case.

The main argument raised by the learned counsel for the applicant is that the opposite party no.2 is a married lady of the village to which the accused applicant belongs and both are neighbours. The accused had helped the victim but subsequently she had started blackmailing the accused and has lodged false case against him. She was in physical relationship with the accused applicant of her own free consent hence, the offence under Section 376 I.P.C. would not be made out. The investigating officer has submitted the charge sheet in a routine manner without properly investigating the matter which is nothing but abuse of process of court and therefore needs to be quashed.

Learned A.G.A. has vehemently opposed the prayer and has drawn attention to the statement of the victim under Section 164 Cr.P.C. in which she has stated that she was earlier married to Sahbaj Khan in the year 2007 and because financial condition of her family was not good hence, her husband had gone abroad in order to earn money. The accused applicant used to come in her house often and promised her that he would arrange a job for her and had taken her to Lucknow where he started demanding Rs. 1,00,000/- in lieu of providing her a job in a nursing home. When she started asking as to when the job would be provided to her he started beating her and also established physical relationship with her. He also gave threat to kill her. All the jewellery of opposite party no. 2 was also kept by the accused applicant. Thereafter, he had told her that his maternal uncle and aunt live in Mumbai where he would arrange job for her. He kept her there for 15 days in a house and thereafter the applicant and her parents had locked her from outside and fled from there. When the door of house was opened after 3 days then she telephoned the accused who told her that he had to come Ballia. After this occurrence when her husband came to know of all this, he has given divorce to her. It is argued by pointing out the said statement that the same is in consonance with the prosecution case as mentioned in the F.I.R.. It is apparent from the said statement that under false promise of providing her a job, the accused applicant had established physical relationship with the opposite party no. 2, therefore it cannot be said that there was free consent to have physical relationship with the opposite party no. 2 and the charge-sheet has been rightly submitted.

I have gone through the F.I.R., in it the same version has been recorded which has been stated above as stated in statement under Section 164 Cr.P.C. The police after investigation and having recorded as many as eight witnesses has submitted the charge-sheet. The statement of the witnesses cannot be disbelieved at this stage in proceedings under Section 482 Cr.P.C.

The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.

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, 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 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.

Order Date :- 26.9.2019

VPS

 

 

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