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Shailendra Singh Yadav vs State Of U.P. And 2 Other on 17 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 32933 of 2019

Applicant :- Shailendra Singh Yadav

Opposite Party :- State Of U.P. And 2 Other

Counsel for Applicant :- M.P. Srivastava,Manoj Kumar Kushwahah

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri M. P. Srivastava, learned counsel for the applicant and Sri B. A. Khan, learned A.G.A. for the State.

This application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned charge sheet No. 458 of 2018 dated 03.11.2018, in Case Crime No. 416 of 2018 (Shailendra Singh Yadav Vs. State), under Section 366, Section376 I.P.C., Police Station Bidhnoo, Kanpur Nagar, pending in the court of Additional Chief Matrimonial Magistrate-IIIrd, Kanpur Nagar with a further prayer to stay the entire proceeding in pursuance of the above charge-sheet.

It is argued by learned counsel for the applicant that the accused-applicant has been falsely implicated by the mother of the victim who is opposite party no. 3. In fact, the victim had gone with the accused-applicant of her own free will. To emphasise his arguments he has drawn attention of this Court to the statement of the victim under Section 164 Cr.P.C. in which she had stated that she used to work at the place of the accused-applicant and he had taken her to Bareilly giving assurance that he will get her employed there he administered her something noxious to eat and after consuming the same she fainted, thereafter, when she had regained consciousness, he showed her dirty photos and tried to started blackmailing her and forced her to say that she was with the accused-applicant and video was also made by the accused-applicant.

He has relied upon the law laid down by Apex Court in Vineet Kumar and others Vs. State of U.P. and another 2017 (13) SCC 369, in paragraph no. 35 which is quoted hereinbelow:

“35. The fact is that no medical examination was got done on the date of incident or even on the next day or on 07.11.2015, when IO asked the complainant and her husband to get done the medical examination. Subsequently it was done on 20.11.2015, which was wholly irrelevant. Apart from bald assertions by the complainant that all accused have raped, there was nothing which could have led the Courts to form an opinion that present case is a fit case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti Vs. State (NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and Section354 I.P.C. with regard to the incident dated 15.02.2007. She sent a telephonic information on 16.02.2007 and on her statement FIR under Section 328 and Section354 I.P.C. was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was recorded. Police filed charge-sheet under Sections 328, Section324 and Section376 I.P.C. Charge-sheet although mentioned that no proof in support of crime under Section 328/Section354 could be found. However, on the ground of statement made under Section 164 Cr.P.C. charge-sheet was submitted. Paragraph 10 of the judgment which notes the charge-sheet is as follows:

? 10. On 28.6.2007, the police filed a chargesheet under Sections 328, Section354 and Section376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:-

?I the Inspector, tried my best from all angles to recover the intoxicating substance / Pepsi / Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/Section354 I.P.C. and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 I.P.C.”.

Therefore, he has prayed that the proceedings in the present case should be quashed, the same being abuse of process of court. It is further apprised by him that the accused had already been bailed out.

On the other hand, learned A.G.A. has vehemently opposed the quashing of the charge sheet and has argued that the statements under Section 161 Cr.P.C. as well as 164 SectionCr.P.C. both have incriminating evidence against the accused-applicant, hence, the charge sheet has been rightly submitted.

I have gone through the F.I.R. It is mentioned in it by opposite party no. 3 that her daughter aged about 23 years did not return from Beauty Parlour on 29.07.2018, she had a mobile with her. Subsequently, she came to know that her daughter had been enticed away by the accused-applicant. Pursuant to the lodging of this F.I.R., the police has submitted charge-sheet after recording the statement of the four witnesses including the mother of the victim and victim herself. The main argument made by the learned counsel for the applicant is that solely on the ground that statements given against the applicant under Section 164 Cr.P.C. no case under Section 376, Section366 I.P.C. would be found to be made out as per law which has been cited above.

I have gone through the said judgment in Vineet Kumar and others Vs. State of U.P. and another (Supra), it is clearly stated therein that the statement under Section 164 Cr.P.C. cannot be brushed aside lightly and the same would be required to be considered along with the antecedents, facts and circumstances of the case. In the present case, the factual dispute is there as to whether the victim had gone of her own free will or was she enticed away as alleged in the F.I.R. There are discrepancies in the statements made under Section 161 and Section164 Cr.P.C. but such discrepancies cannot be held to be a ground for withholding trial of this case. The trial is required to test the veracity of the prosecution case.

In the light of the evidence gathered by the I.O. it cannot be denied that cognizable offence is made out.

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 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 :- 17.9.2019

VPS

 

 

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