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Vamik vs State Of Up And Anr on 27 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 36219 of 2019

Applicant :- Vamik

Opposite Party :- State Of Up And Anr

Counsel for Applicant :- Zia Uddin Ahmad

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Zia Uddin Ahmad learned counsel for the applicant, Sri Amit Kumar Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the cognizance order dated 23.07.2016 taken by the Additional District Sessions Judge, District Amroha on charge-sheet No.156 of 2016 dated 28.04.2016 under Sectionsections 363, Section366 IPC and Sectionsection 3(1) (10) of SC/SectionST Act and amended charge-sheet NO.156A of 2016 dated 20.7.2016 under Sectionsection 376 IPC and section 3/4 of POCSO Act and section 3(1) (XII) of SC/SectionST Act, Police Station Adampur District Amroha arising out of Case Crime NO.193 of 2016 under Sectionsections 363, Section366, Section376 IPC, Section 3/4 POCSO Act and Sectionsection 3 (1)(10), 3(1)(XII) of SC/SectionST Act pending in the court of Additional District and Sessions Judge, Amroha and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that the victim is the daughter of opposite party no. 2, who is 16 years of age. In statement given by the victim under Sectionsection 161 Cr.P.C., she has stated that she established physical relationship with the applicant-accused of her own free will as she is in love with him, therefore the offence under the above-mentioned sections would not be made out. He has admitted that the statement of the victim under Sectionsection 164 Cr.PC. was recorded but he could not obtain copy of the same. He has also apprised the court that initially when the investigation was made, charge-sheet no. 156/16 was submitted against the accused-applicant under Sectionsection 363, Section366 IPC and 3(1) 10 of SC/SectionST Act but subsequently the police has filed supplementary charge-sheet being charge-sheet no. 156A/16 under Sectionsections 376 IPC, 3/4 POCSO Act and 3(1)12 of SC/SectionST Act against the accused-applicant. The investigation in this case has not been properly made, hence prosecution in this case being malicious, deserves to be quashed.

Learned A.G.A. has vehemently opposed the quashing of charge-sheet and has stated that in the statement under Sectionsection 164 Cr.P.C. victim has clearly supported the allegation of rape made against the accused-applicant which finds mentioned in first charge-sheet no.156/16. Further he has argued that it is admitted by the learned counsel for the accused-applicant that the age of the victim was less than 18 years and she would be treated to be as child, hence offence under section 3/4 of POCSO Act would also be made out along with Sectionsection 376 IPC. It is a serious offence, hence quashing of the charge-sheet should be refused.

I have gone through the FIR. The opposite party no. 2 has mentioned in it that his minor daughter aged about 15 years used to go for studying in class X to Nehru Memorial Inter College, Dhabarsi with her elder sister Jyoti and maternal uncle Vikas and the accused-applicant who was the resident of the same village, used to tease her regrading which occurrence of abusing had taken place between the maternal uncle of the victim Vikas and the accused-applicant three months ago. Regarding it when wife of opposite party no.2 had gone to the house of the accused-applicant, the family members of the applicant had given threat to abduct the daughter of the opposite party no.2 and also threat was given to kill the only son of opposite party no.2. On 27.4.2016 at about 9.00 p.m. the accused had made three phone calls to the wife of the opposite party no. 2 and gave threat that he would abduct the minor daughter of the opposite party no. 2, thereafter, the wife of the opposite party no. 2 had informed the opposite party no.2 regarding this occurrence and in that very night the accused-applicant and other co-accused named in the FIR entered into the house of the opposite party no. 2 and abducted the victim.

After investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as eight witnesses which cannot be disbelieved in proceedings u/s 482 SectionCr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.As per admission of the learned counsel for the applicant that the victim was minor, therefore, it cannot be denied that cognizable offence under section 3/4 POCSO Act and 376 SectionIPC would be made out.

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 and 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 of the aforesaid case is refused.

Order Date :- 27.9.2019

AU

 

 

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