HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 34201 of 2019
Applicant :- Vishal Singh Alias Ravi Singh
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Udai Chandani
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Udai Chandani learned counsel for the applicant, Sri G.P. 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 entire proceedings including the charge-sheet dated 4.5.2019 and cognizance order dated 16.07.2019 passed by Additional District/Session Judge-I, Chandauli arising out of Case Crime No. 218 of 2018 (SectionState vs. Vishal Singh) under Sectionsections 376 IPC read with Sectionsections 3 and Section4 of Protection of Children from Sexual Offences Act, 2012 and Sectionsection 67 of the Information Technology (Amendment) Act, 2008, Police Station Chakiya, District Chandauli 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 opposite party no. 2 is major girl of 20 years who has falsely implicated the accused-applicant by lodging FIR after more than five years of the occurrence without explaining any reason for delay. He has drawn the attention to the statement of the accused which is annexed at page 34 of the paper book in which it is mentioned that the maternal uncle of the father of the victim had taken Rs.10.00 lacs for the marriage of opposite party no. 2 and when the same was being demanded back, he tried to avoid him and thereafter false story had been cooked up to lodge this FIR. He has several audio recordings which clearly indicates that entire conspiracy has been hatched against the accused-applicant and despite the said evidence having been provided to the Investigating Officer, charge-sheet has been submitted erroneously and these pieces of evidence were not taken into consideration by him. This is nothing but a malicious prosecution, which needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer for quashing the charge-sheet and has argued that there is sufficient evidence on record.
I have gone through the FIR. It is mentioned in it by opposite party no. 2 that the accused, who is a son of her ‘Bua’, used to visit her house frequently and right from time when she was just about 15 years of age, he had made a video clipping when she was bathing and by showing this dirty video, she was blackmailed and accused continued to establish physical relationship with her forcibly.
After investigation, charge-sheet has been submitted by the Investigating Officer after recording statements of as many as eleven witnesses which cannot be disbelieved in proceedings u/s 482 SectionCr.P.C. The same version as given in FIR is also stated in her statement under Sectionsection 164 Cr.P.C also by the opposite party no. 2/victim. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.
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.”
The prayer for quashing the proceedings of the aforesaid case 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 :- 19.9.2019