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Seraj vs State Of U.P. And Another on 22 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 31557 of 2019

Applicant :- Seraj

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

Counsel for Applicant :- Pankaj Kumar Yadav

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Short Counter-Affidavit from the side of Opposite Party no. 2 along with Vakalatnama filed by Sri D. K. Yadav, Advocate and the same is taken on record.

Heard Sri Pankaj Kumar Yadav, learned counsel for the applicant, Sri D.K. Yadav, learned counsel for the Opposite Party No. 2 and Sri Attreya 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 entire proceeding of S.T. No. 160 of 2018 (State Vs. Seraj), under Sections 363, Section366, Section376 I.P.C. and Section 3/Section4 of Protection of Children from Sexual Offence Act, 2012, Police Station nebua Naurangiya, District Kushinagar, arising out of Case Crime no. 271 of 2017, pending before the court of Additional Sessions Judge-I, Kushinagar.

Learned counsel for the applicant has argued that the accused-applicant has been falsely implicated by the Opposite Party No. 2 who is father of the victim. The attention is drawn to the statement of the victim under Section 164 Cr.P.C. at page 30 of the paper book, in which she has stated that she is in love with the accused-applicant, she had gone Jaipur with the accused-applicant of her own free will, where she had married him according to Muslim rites. No physical relationship was established by the accused-applicant with her by force. It is also argued that in the medical examination report, the age of the victim is found to be 17 years but she is major. In statement under Section 161 Cr.P.C. she has repeated the contents of her statement given under Section 164 Cr.P.C. It is also argued that compromise has taken place between the parties which has been annexed in the short Counter-Affidavit at page 8, therefore, this is nothing but a malicious prosecution which needs to be quashed.

Learned A.G.A. has vehemently opposed the prayer for quashing citing the law laid down in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303 wherein it has been held that the compromise cannot be permitted under Section 376 I.P.C. even if, the settlement taken place between the parties. Paragraph no. 61 of the said judgment is as follows:-

“61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like SectionPrevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

I have gone through the F.I.R. In it, it has been written that on 21.07.2017 at about 12:00 noon when her daughter/victim had gone for bringing mud for the purposes of painting, she did not return and later on he came to know that the accused-applicant had enticed her away and in this work the other co-accused had cooperated with the main accused-applicant. After investigation, the charge-sheet submitted against the accused-applicant. After investigation, the statement have been recorded of as many as thirteen witnesses. The statement of the victim recorded by the Investigating Officer cannot be scrutinized in proceedings under Section 482 Cr.P.C. as the same requires trial.

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.

The prayer for quashing the proceedings is refused.

However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 30 days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to hear and dispose of discharge application.

The applicant may appear before committal court within 30 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal court, the said court shall take coercive steps to procure his attendance.

With aforesaid direction, this application is finally disposed of.

Order Date :- 22.8.2019

VPS

 

 

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