Allahabad High Court
Viri Singh And 4 Others vs State Of U.P. And Another on 11 August, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:162986 Court No. - 88 Case :- APPLICATION U/S 482 No. - 26192 of 2023 Applicant :- Viri Singh And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Binod Kumar Tripathi Counsel for Opposite Party :- G.A.,Mool Chandra Maurya Hon'ble Sanjay Kumar Singh,J.
1. Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1, learned counsel for the opposite party no.2 and perused the record.
2. This application under Section 482 Cr.P.C. has been filed by the applicants to quash the cognizance/summoning order dated 23.06.2023 whereby applicant nos. 1, 2 and 3 have been summoned under Sections 147, 323, 504 IPC and applicant nos. 4 and 5 under Section 147, 323, 354, 504 IPC and Section 7/8 POCSO Act and proceedings of Session Case No. 897 of 2023 arising out of Case Crime No. 370 of 2022, Police Station Kotwali Dehat, District Etah pending in the court of Special Judge (Exclusive Court) POCSO Act/Additional Session Judge, Etah.
3. Brief facts of the case which are required to be stated are that opposite party no. 2 lodged the first information report on 05.10.2022 with regard to an incident which took place on 26.09.2022 under Sections 147, 452, 354B, 323, 504 IPC against the applicants, namely, Salim, Shahwaj Khan, Viri, Mohar Pal and Pravesh alleging inter alia that on 26.09.2022 at 11:00 a.m., she and her niece Sejal aged about 15 years were present in the house and her parents had gone to farm. Accused persons seeing them alone in the house barged into their house and after closing the door from inside, outraged their modesty and they also torn their clothes. On raising alarm, accused persons succeeded in fleeing away from the roof.
4. It is argued by learned counsel for the applicants is that on 02.10.2022, applicant no. 1 had lodged the first information report against Vikas, Jai Prakash and Shankar, who are brothers of opposite party no. 2, with regard to an incident which took place on 26.09.2022, in which he has received injury, therefore, opposite party no. 2 in order to save the skin of her brothers lodged the first information report on 05.10.2022. It is also pointed out that there are contradictions in the contents of first information report as well as statements of victims recorded during the course of investigation, therefore, criminal proceeding against the applicants is liable to be quashed.
5. Per contra, learned Additional Government Advocate for the State as well as learned counsel for opposite party no. 2 vehemently opposed by contending that applicant nos. 1, 2, 3 and 4 have not come with clean hands as they have suppressed their criminal history, the details in respect of each of the applicant are as under :
5.1. Applicant no. 1/Viri Singh
(i) Case Crime No. 120 of 2005, under Sections 409, 419, 420, 467, 468, 471 IPC, Police Station Kotwali Dehat, District Etah,
(ii) Case Crime No. 126 of 2010, under Sections 325, 323, 504, 506 IPC, Police Station Kotwali Dehat, District Etah,
(iii) Case Crime No. 724 of 2017, under Sections 279, 337, 338, 427 IPC, Police Station Kotwali Dehat, District Etah,
(iv) Case Crime No. 191 of 2005, under Sections 307, 504, 506 IPC, Police Station Kotwali Dehat, District Etah
(v) Case Crime No. 696 of 2017, under Sections 147, 148, 307, 323, 332, 353, 427, 504, 506 IPC and Section 135 Electricity Act, Police Station Kotwali Dehat, District Etah.
5.2. Applicant no. 2/Mohar Pal
(i) Case Crime No. 696 of 2017, under Sections 147, 148, 307, 323, 332, 353, 427, 504, 506 IPC and Section 135 Electricity Act, Police Station Kotwali Dehat, District Etah.
5.3. Applicant no. 3/Salim
(i) Case Crime No. 120 of 2005, under Sections 409, 419, 420, 467, 468, 471 IPC, Police Station Kotwali Dehat, District Etah,
(ii) Case Crime No. 126 of 2010, under Sections 325, 323, 504, 506 IPC, Police Station Kotwali Dehat, District Etah,
(iii) Case Crime No. 724 of 2017, under Sections 279, 337, 338, 427 IPC, Police Station Kotwali Dehat, District Etah,
(iv) Case Crime No. 191 of 2005, under Sections 307, 504, 506 IPC, Police Station Kotwali Dehat, District Etah
(v) Case Crime No. 696 of 2017, under Sections 147, 148, 307, 323, 332, 353, 427, 504, 506 IPC and Section 135 Electricity Act, Police Station Kotwali Dehat, District Etah.
(vi) Case Crime No. 262 of 2011, under Sections 420, 468, 471, 120B, 166 IPC, Police Station Kotwali Dehat, District Etah
(vii) Case Crime No. 467 of 2009, under Section 420 IPC and Section 3/7 Essential Commodities Act, Police Station Kotwali Dehat, District Etah.
5.4. Applicant no. 4/Shahbaz Khan @ Sonu
(i) Case Crime No. 91 of 2022, under Sections 147, 148, 149, 323, 342, 427, 504, 506 IPC, Police Station Kotwali Dehat, District Etah,
(ii) Case Crime No. 194 of 2021, under Sections 323, 504, 506 IPC, Police Station Kotwali Dehat, District Etah,
(iii) Case Crime No. 224 of 2023, under Sections 323, 504, 506 IPC and Section 3(2)5A, 3(2)Dha/3(1)Da, Police Station Kotwali Dehat, District Etah.
5.5. Learned A.G.A. further submits that upon perusal of F.I.R. and on the basis of the allegations made therein as well as material against the applicants, as per prosecution case, the cognizable offence against the applicants is made out. The criminal proceedings against the applicants cannot said to be abuse of the process of the Court. Hence, this application is liable to be dismissed.
6. Having examined the matter in its totality, I find that as per the allegations levelled in the first information report and the statements of the victims, prima facie, cognizable offence is made out against the applicants. The allegations of outraging their modesty have been alleged by the victims in their statements. The minor contradictions as pointed out in the statements of the victim cannot said to be material contradictions and do not go into the root of the matter so as to demolish the entire prosecution case. The grounds taken in the application reveal that many of them relate to disputed question of fact. This Court is of that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is well settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage, which can be more appropriately gone into by the trial court at the appropriate stage.
7. At the stage of taking cognizance of the case and summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused.
8. This Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial Court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. At this stage it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court.
9. The relief as sought by the applicants through the instant application is hereby refused.
10. This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 11.8.2023 Shubham