Neutral Citation No. - 2024:AHC:68416
Court No. - 87 Case :- APPLICATION U/S 482 No. - 8314 of 2024
Applicant :- Chhotu
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Harindra Prasad
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Harindra Prasad, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State and perused the record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant Chhotu with the following prayers:-
"It is, therefore, Most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the charge sheet dated 21.07.2023, Cognizance/Summoning order dated 19.09.2023 passed by learned Chief Judicial Magistrate, Mau as well as entire proceeding in Session Trial No. 1196 of 2023 (State Vs. Chhotu) arising out of Case Crime No. 177 of 2023, under Section 376, 323 IPC, Police Station Kopaganj, District Mau, pending before learned Additional Sessions Judge, Fast Track Court-I, Mau.
It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of the Session Trial No. 1196 of 2023 (State Vs. Chhotu) arising out of Case Crime No. 177 of 2023, under Section 376, 323 IPC, Police Station Kopaganj, District Mau, pending before learned Additional Sessions Judge, Fast Track Court-I, Mau, during the pendency of present 482 Cr.P.C. Application before this Hon'ble Court, otherwise the applicant shall suffer irreparable loss and injury. And/or may pass such other and further order which this Hon'ble Court may be deem fit and proper under the facts and circumstances of the case."
4. The facts of the case are that an FIR was lodged on 13.06.2023
1
by Raju Kumar against the applicant for offences under Sections 376, 323 IPC and Section 3/4 POCSO Act with the allegation that his daughter having date of birth 01.01.2003 who is a minor was taken away by the accused on 12.06.2023 at about 12:00 midnight and was found in an objectionable condition which was seen by his son Vishal who opposed it after which the accused Chhotu and his son Vishal had a scuffle in which Chhotu received some injuries and ran away. He committed rape on his daughter. The FIR be lodged. The matter was investigated and charge sheet was submitted against the applicant and under Sections 376, 323 IPC on which the trial court took cognizance vide its order dated 19.09.2023 and summoned the applicant to face trial.
5. Learned counsel for the applicant submitted that although the applicant is named in the FIR but he has been falsely implicated in the present case. It is submitted that there are contradictions in the statements of the victim recorded under Section 161 Cr.P.C. and
164 Cr.P.C. It is submitted that looking to the contradictions, the manner of incident is not consistent and as such the same is a false recital with an intention to falsely implicate the applicant. It is submitted that the applicant and the victim are major persons. It is further argued that the applicant has no criminal history as stated in para 28 of the affidavit.
6. Per contra, learned counsel for the State opposed the prayer for quashing.
7. After having heard learned counsel for the parties and perusing the records, it is evident that the applicant is named in the FIR, statements of the victim recorded under Section 161 Cr.P.C. and
164 Cr.P.C. Charge sheet has been submitted against him on which the trial court has taken cognizance vide its order dated 19.09.2023 and summoned the applicant. In so far as the contradictions in the statements of the victim are concerned, the same are the matter of trial and cannot be the basis of quashing of proceedings at this stage moreso when the incident of rape is consistent throughout the prosecution case. The applicant has been granted bail vide order dated 19.09.2023 by this Court. Since the allegations are made out against the applicant, the same cannot be looked into at this stage in view of the judgment of the Apex Court in the case of
Central Bureau of Investigation Vs. Aryan Singh etc. :
Criminal Appeal Nos. 1025-1026 of 2023, decided on 10.04.2023 and State of M.P. v. Awadh Kishore Gupta : (2004) 1
SCC 691.
8. Further in view of the judgment of the Apex Court in the cases
2
of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; State of Bihar Vs. P. P. Sharma : 1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. :
(1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. :
(2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317; Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467 and Ramveer Upadhyay Vs. State of U.P. :
2002 SCC Online SC 484 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the complaint /FIR / charge- sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception. It was further held that criminal proceedings cannot be nipped in the bud.
9. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate : (1998) 5 SCC 749, the Apex Court relying upon the ratio laid down by it in Bhajan Lal's case (supra) has held that power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. In the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 the Apex Court has held that in exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.
10. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not
3
enquire into merits or demerits of case.
11. In the cases of Bhushan Kumar Vs. State of NCT of Delhi :
(2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.
12. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl
(1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
13. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section
482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.
14. Looking to the facts of the case, the prima facie allegation
4
against the applicants and the law as stated above, no case for interference is made out. The present application under Section
482 Cr.P.C. is thus dismissed.
Order Date :- 19.4.2024
M. ARIF
(Samit Gopal, J.)
5
Comments