Allahabad High Court
Tanveer @ Tanveer Mohammad Salim Khan vs State Of U.P. And Anr on 23 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 34748 of 2019 Applicant :- Tanveer @ Tanveer Mohammad Salim Khan Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Bhaskar Bhadra Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Bhaskar Bhadra, learned counsel for the applicant and Sri Ankit Srivastava, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings of Case No. 419 of 2019 arising out of Case Crime No. 100 of 2018 under Sections 363, 366, 376, 120-B I.P.C. read with Section 4 of Protection of Children from Sexual Offences Act, P.S. Baradari, District Bareilly pending in the Court of Additional District Judge VII, Bareilly together with the impugned charge-sheet dated 05.04.2019 upon which, the court below took cognizance on 04.05.2019.
Learned counsel for the applicant has argued that O.P. No.2 is mother of the victim who has lodged false F.I.R. against the accused who is husband of the victim now. The victim is 19 years old as per the report of C.M.O., Bareilly, the documentary proof of which is annexed at page no. 34 of the paper book. The victim has given statement under Section 164 Cr.P.C. in favour of the accused that one Taiyaba had asked her to abscond with Tanveer, present accused and thereafter she got married to the accused applicant. She has been staying with the applicant and has done nikah with him. The said statement is annexed at page no. 36 of the paper book. The same statement was given by her in her statement recorded under Section 161 Cr.P.C. which is annexed at page no. 29 of the paper book. She has stated therein that the present accused applicant had called her at Hadana intersection, thereafter she had gone with him to Mathura, Mumbai etc. out of her own free will where she married the accused. She wants to live with the accused as his wife. It is argued that the police has not taken into consideration the above-mentioned facts and has erroneously filed charge-sheet against the accused applicant under the above-mentioned sections which is malicious prosecution which needs to be quashed.
Learned A.G.A. has opposed the prayer of quashing and has drawn attention towards the fact that the I.O. has quoted the date of birth in Case Diary as 21.05.2001 on the basis of her Educational Certificate to which learned counsel for the applicant states that the said certificate could not be found because of which the same could not be annexed but he conceded the fact that the victim was minor on the date of occurrence.
I have gone through the F.I.R. in which O.P. No.2 has recorded that her minor-daughter aged about 16 years was enticed away and abducted by Rehan and Rahul on 23.01.2018 at about 5:30 p.m. Rehan used to live near the mosque as an electrician and used to visit the house of O.P. No.2 often, therefore, she had full suspicion that her daughter could have been enticed away by the accused. She also suspected Rahul, other co-accused to be involved in commission of this crime as he used to talk to the victim on phone but after recording evidence of as many as six witnesses, the police has submitted charge-sheet and has exonerated Rehan and Rahul and has filed charge-sheet against the accused applicant under the above sections and against the co-accused, Naeem, charge-sheet has been filed under Sections 363, 366, 376, 120-B I.P.C. and 4 of P.O.C.S.O. Act who has already been lying in jail. The argument which were raised by the learned counsel for the applicant touch upon the aspect which would involve disbelieving the statement of witnesses which have been collected by the I.O. against the accused applicant which is not possible in proceedings under Section 482 Cr.P.C.
The arguments which are made by the learned counsel for the applicants 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 applicants. 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 Cr.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 R. 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.
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, 379 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 "Cr.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 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 this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 23.9.2019 A. Mandhani