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Rajni And 3 Others vs State Of U.P. And Another on 16 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 73

1. Case :- APPLICATION U/S 482 No. – 17667 of 2016

Applicant :- Rajni And 3 Others

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

Counsel for Applicant :- Saurabh Gour,A.B.L. Gour

Counsel for Opposite Party :- G.A.,Dharmendra Singhal,S.P.S. Chauhan

2. Case :- APPLICATION U/S 482 No. – 21249 of 2016

Applicant :- Yogendra Upadhyay And 2 Others

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

Counsel for Applicant :- Saurabh Gour,Shri A.B.L. Gour

Counsel for Opposite Party :- G.A.,Dharmendra Singhal,Vijay Gautam

Hon’ble Om Prakash-VII,J.

Vakalatnama filed today by Shri S.P.S. Chauhan, Advocate on behalf of opposite party no.2 in both matters is taken on record.

Since both applications are connected to each other and arise out of same crime number and have been heard together, they are being decided by common order.

Heard Shri A.B.L. Gaur, learned Senior Counsel assisted by Shri Saurabh Gaur, learned counsel for the applicants, Shri S.P.S. Chauhan, learned counsel for the opposite party no.2 and learned A.G.A.

These applications under Section 482 Cr.P.C. have been filed for quashing the charge sheet no. 172 of 2016, the entire proceedings of case no. 367 of 2016, arising out of case crime no. 128 of 2016 under Sections 498A, 376, 377, 323, 504, 307 IPC and 3/4 D.P. Act, P.S. Iglas, district Aligarh pending before the Additional Chief Judicial Magistrate-II, Aligarh as well as the order of cognizance and summoning order dated 16.5.2016 and further to stay the further proceedings of aforesaid case.

It is submitted by the learned Senior Counsel appearing for the applicants that in the present matter, applicant Rajni is mother-in-law, applicants Gunjan and Rekha are unmarried Nanand, applicant Devesh is devar, applicant Yogendra Upadhyay is father-in-law, applicant Sani Upadhyay is husband and applicant Gopal is mamiya sasur of the victim – opposite party no.2. It is further submitted that order taking cognizance on the charge sheet submitted by the Investigating Officer is illegal and non-application of judicial mind. Though applicants Rajni, Gunjan and Rekha are women yet charge sheet was submitted against them for the offence under Sections 376 and 377 IPC and concerned Magistrate while taking cognizance on the charge sheet did not take into account this fact and took cognizance for the aforesaid offences against them also. At this juncture, learned Senior Counsel referred to the conclusion part of the charge sheet and submitted that earlier on 2.3.2016 one application was moved by the opposite party no.2 at police station Mahila Thana. Present F.I.R. was lodged on 17.3.2016 at police station Iglas for the offence under Sections 498-A, 376, 377, 323, 504 and 307 IPC and 3/4 D.P. Act specifying the date of offence as 15.3.2016. Referring to aforesaid facts as well as the statement of opposite party no.2 recorded under Section 164 CrPC, it is next contended that no specific role has been assigned against applicant Gopal, who is mamiya sasur of opposite party no. 2 but concerned Magistrate without going through the evidence collected by the Investigating Officer during investigation took cognizance against him also for all offences mentioned in the charge sheet. It is also submitted that there are contradiction in the F.I.R. and the statement of victim recorded under Section 164 CrPC regarding role of applicants Rajni, Gunjan, Rekha and Devesh. At this juncture, learned Senior Counsel specifically referred to the contents of F.I.R. as well as statement of victim recorded under Section 164 CrPC and submitted that it appears improbable and unbelievable that a mother-in-law being lady will permit her husband to commit offence of rape against her daughter in law. General allegations have been made against them. Offences levelled against the applicants are not attracted in the present matter. It is improbable and unbelievable that the unmarried Nanad, who had to go to her in-laws house would have committed the present offence. Referring to role assigned against them in the statements recorded under Sections 161 CrPC, 164 CrPC as well as the contents of F.I.R. it is also contended that order taking cognizance on the charge sheet in the matter is illegal and non-application of judicial mind. Medical evidence does not support the prosecution case. Victim / informant has changed her version stage to stage. No prima facie case is made out. If entire prosecution case as a whole is taken into consideration, then also applicants Rajni, Gunjan, Rekha, Devesh, Gopal, Yogendra Upadhyay could not be benefited with any such demand. It is also submitted that F.I.R. lodged on 17.3.2016 is second F.I.R. for the same set of facts as on the basis of same facts an application was already moved on 2.3.2016. Hence, entire proceeding adhered to on the basis of F.I.R. dated 17.3.2016 is vitiated. In support of his submissions, learned counsel for the applicants relied upon the decision of the Apex Court in Eicher Tractors Ltd. Vs. Harihar Singh, 2008 LawSuit(SC) 1643 and T.T. Antony vs. State of Kerala, Laws(SC) 2001 7 19.

On the other hand, learned counsel for the opposite party no.2 as well as the learned AGA appearing for the State submitted that there is no illegality or infirmity in the impugned order taking cognizance in the matter warranting interference by this Court. All the applicants committed the present offence. Specific allegations have been levelled against them. In her statement recorded under Section 164 CrPC, victim has clearly and categorically supported the prosecution case. Offence under Section 376 IPC against father in law, offence under Section 377 IPC against husband and other offences levelled in the charge sheet are attracted against all other accused.

I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the learned counsel for the applicants.

Before proceeding to deal with the submissions made by the learned counsel for the parties, it will be appropriate to quote paragraph 7 of the judgement of Apex Court in Eicher Tractors case (supra), which is as under:

“7. In dealing with the last case, 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 Code, 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, no doubt, 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 Code 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 State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) “(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 Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(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 Code.

(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 Code 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 Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7)Where a criminal proceeding is manifestly attended with mala fides 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.”

In this matter, as is evident from the record on 2.3.2016 an application was moved by the opposite party no.2 before Mahila Thana mentioning therein that NCR was lodged but no action was taken. If contents of the F.I.R. in which charge sheet was submitted are taken into consideration, it emerges that date of offence disclosed in the F.I.R. is different with the date of offence disclosed in the aforesaid application. As regards allegations levelled in regard to offence under Sections 498-A IPC and 3/4 D.P. Act in the said application and also in the F.I.R. are concerned, merely on the basis that an application dated 2.3.2016 was already moved by the opposite party no.2, charge-sheet submitted in the F.I.R. dated 17.3.2016 cannot be quashed. It is also clarified that on the basis of application dated 2.3.2016 neither F.I.R. was lodged nor investigation was conducted. Thus, the applicants cannot get any help with the law laid down by the Apex Court in T.T. Antony case (supra).

Now the Court comes to the submission regarding role of applicants.

If the role assigned to applicants Rajni, Gunjan and Rekha in the F.I.R. as well as in the statement of victim recorded under Section 164 CrPC is taken into consideration, it is evident that though in the F.I.R. specific role was assigned yet in the statement recorded under Section 164 CrPC, general allegations were levelled against them. Applicants Gunjan and Rekha are unmarried nanand of the victim – opposite party no.2. It is improbable and unbelievable that they would have involved in causing cruelty, harassment and beating to victim and allegation in this respect against them appears to have been levelled only their being relative of husband of opposite party no.2. It is also alleged that they were causing marpeet and were also assisting the co-accused Devesh in marpeet to the victim. Demand of Wagon-R car could not be attributed to them as they could not take direct benefit with the demand of said dowry. No specific role has been levelled against them in the statement recorded u/s 164 CrPC, hence, order taking cognizance on the charge sheet against these two applicants, namely, Gunjan and Rekha in view of the law laid down by the Apex Court Geeta Mehrotra vs. State of U.P. and others, 2012 (10) ADJ 464 and State of Haryana and others vs. Bhajan Lal and others, 1992 SCC (Cri) 426 is bad in law.

So far as the role assigned to applicant Gopal, who is mamiya sasur of opposite party no.2, is concerned, it is evident that that neither victim has levelled allegation against him for the offence under Sections 376 and 377 IPC nor he is the family member of the husband of victim. It appears that charge sheet against him was submitted on the basis of insufficient evidence and only on account of relative of husband of opposite party no.2. He is also not beneficiary of the alleged demand of additional dowry nor has caused marpeet with the victim. Hence, order taking cognizance on the charge sheet against him is also the result of non-application of judicial mind.

As regards role assigned against applicant Rajni, mother in law of opposite party no.2, is concerned, allegation in the F.I.R. against her is that she was assisting her husband to commit aforesaid offences against victim. When complaint was made to her by the victim, she extended threat. If statement of victim recorded under Section 164 CrPC and other evidence available on record are taken into consideration in light of submissions raised by the learned counsel for the parties as well as the settled legal position, certainly, the order taking cognizance on the charge sheet against her is also non-application of judicial mind. It is out of imagination that a wife (mother in law) would have instigated her husband to commit offence of rape against her daughter in law.

So far as the role assigned to applicants Sani Upadhayay – husband, Yogendra Upadhya, father in law and Devesh, devar of opposite party no.2 is concerned, specific role have been assigned against them and said allegations are supported by the victim in her statement recorded under Section 164 CrPC as well as by medical evidence. Hence, it cannot be said that continuance of proceeding of the aforesaid case against them is abuse of process of law. It is clarified at this stage that from the evidence whatever offences shall be made out against them, they will face trial for the said offences. Hence, there is no justification for quashing the proceeding of the aforementioned case in respect of applicants Sani Upadhyay, Yogendra Upadhyay and Devesh. The prayer to that extent on behalf of said applicants is hereby refused. However, keeping in view the allegations levelled against applicants Rajni, Gunjan, Rekha and Gopal in the complaint and also in the statement of the victim recorded under Section 164 CrPC, the fact that there is no nexus between the demand with these applicants and also the law laid down by the Apex Court in Geeta Mehrotra case (supra), the Court is of the view that the proceedings against these applicants were initiated with malafide intention and continuance of such proceeding is nothing but an abuse of process of law. The concerned Magistrate did not apply judicial mind while passing the order taking cognizance on the charge sheet in respect of these applicants, which suffers from infirmity and illegality and requires interference by this Court.

In view of the above discussions, there is some substance in the submissions made by the learned Senior Counsel appearing for the applicants. The applications are liable to be allowed in part and the proceedings in respect of applicants Rajni, Gunjan, Rekha and Gopal are liable to be quashed.

Accordingly, the applications are allowed in part.

The entire proceedings of case no. 367 of 2016, arising out of case crime no. 128 of 2016 under Sections 498A, 376, 377, 323, 504, 307 IPC and 3/4 D.P. Act, P.S. Iglas, district Aligarh pending before the Additional Chief Judicial Magistrate-II, Aligarh as well as the order of cognizance and summoning order dated 16.5.2016 against the applicants Rajni, Gunjan, Rekha and Gopal are quashed.

It is made clear that proceeding of case before the trial court shall go-on against applicants Sani Upadhyay, Yogendra Upadhyay and Devesh.

Copy of this order be also placed on the record of application u/s 482. no. 21249 of 2016

Order Date :- 16.10.2019

safi

 

 

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