Allahabad High Court
Habiburrahaman vs State Of U.P. on 9 January, 2019
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 72 Case :- APPLICATION U/S 482 No. - 1305 of 2018 Applicant :- Habiburrahaman Opposite Party :- State Of U.P. Counsel for Applicant :- Mr Arvind Kumar Mishra Counsel for Opposite Party :- A.G.A. Hon'ble Ajit Kumar,J.
1. Heard learned counsels for the parties.
2. By means of this criminal misc. application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C.'), the applicant has questioned the charge sheet dated 17.09.2015 and cognizance order dated 08.12.2015 in Case No. 10839/9 of 2015, State v. Habiburrahman arising out of Case Crime No. 701 of 2015, under Sections 386, 506 IPC, P.S. Khatauli,District Muzaffarnagar pending in the court of Chief Judicial Magistrate, Muzaffarnagar on the ground that the applicant has been falsely implicated only because he happens to be the Uncle of Shoaib son of Sardar Ahmad with whom the daughter of the first informant namely Anju Rani eloped and later married by converting to Islam religion and styling herself as Anjum Rehman.
3. It is contended that initially the opposite party no. 2 lodged the first information report (hereinafter to be referred as 'FIR') on 18.05.2015 which was registered as Case Crime No. 523 of 2015, under Sections 363, 366, 504, 506 IPC. The said FIR came to be challenged before this Court by Anjum Rahman and Shoaib and others vide Criminal Misc. Writ Petition No. 13183 of 2015 and this Court vide order dated 01.06.2015 directed for no coercive measure pursuant to the FIR until further orders. The order passed by this Court is reproduced hereunder:
"Learned AGA has accepted notice on behalf of respondent nos. 1 to 3.
Issue notice to respondent no. 4.
Six weeks time is accorded to each one of the respondent to file counter affidavit.Two weeks further time is accorded to file rejoinder affidavit.
List this matter after eight weeks.
It has been submitted by petitioner no. 1 Anjum Rehman @ Anju Rani d/o Naresh Kumar, who has been identified by Mohd. Parvez Alam, Advocate, that she has voluntarily left her parental house and has entered into matrimonial alliance with petitioner no. 2 Shoaib s/o Sardar Ahmed. Petitioner nos. 1 and 2 are stating before this Court that they are major and on their own free will, they have entered into matrimonial alliance and they are living happily with each other and as far as petitioner nos. 3 to 5 are concerned, they are close relatives of petitioner no. 2 and, as such, in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013, Sachin Pawar Versus State of U.P., decided on 02.08.2013, it cannot be said by any stretch of imagination that any offence under sections 366, 504 and 506 I.P.C. is made out.
Prima facie the arguments, that have been so advanced before this Court, appears to have some substance and requires consideration by this Court, as such, pursuant to the FIR dated 22.5.2015 registered as Case Crime No. 523 of 2015 under Sections 366/504/506 IPC at police station Khatauli, district Muzaffarnagar, until further orders of this Court no coercive action be taken against the petitioners."
4. Later on the first informant, father of thegirl, lodged another FIR on 14.07.2015 as Case Crime No. 701 of 2015, under Sections 386 and 506 IPC with the allegation that the accused applicant came to the shop of opposite party no. 2 at around 6.00 p.m. on 30.06.2015 and demanded Rs. 1 lac for returning his daughter and threatened to kill her if the first informant refused. This FIR also came to be challenged before this Court by Shoaib and others vide Criminal Misc. Writ Petition No. 17891 of 2015 and this Court vide order dated 27.07.2015 stayed the arrest of the petitioners till submission of report under Section 173(2) Cr.P.C. Thereafter, Investigating Officer recorded statement of the prosecution witnesses namely Manoj, Nadeem and Zakir under Section 161 Cr.P.C. in which they completely denied the prosecution story and thereafter, Investigating Officer again recorded the statement of the Virme @ Brahm Singh on 23.07.2015 in which he repeated the prosecution story as alleged in the FIR and version was same as recorded of the first informant. The Investigating Officer however, found during the investigation that no case is made out as alleged in the FIR against Shoaib, Amir Azam and Maroof and hence their names were expunged and the charge sheet has been submitted only against the applicant on which the Chief Judicial Magistrate, Muzaffarnagar has taken cognizance and registered a Case No. 1039/9 of 2015.
5. The argument advanced on behalf of the applicant is that the present institution of criminal proceedings against the applicant is only with an intention to harass and is rendered to be a malicious prosecution, as the main accused Shoaib, with whom the daughter of informant has eloped and married and got protection from High Court and changed her name from Anju Rani to Anjum Rehman, has already been exonerated from the charge and his name has been expunged. The entire story of kidnapping of daughter of opposite party no. 2 turns out to be false. It is also argued that if the allegation against the Shoaib cannot be sustained then there is all the mere no evidence which last the substantial one to establish the charge against the applicant when the Investigating Officer has virtually no material to submit the charge sheet.
6. In order to buttress his argument, learned counsel for the applicant has drawn the attention of the Court to the order of learned Chief Judicial Magistrate, Muzaffarnagar in accepting the final report of closure in Case Crime No523 of 2015 that has arisen out of the first FIR. It is in that case the girl Anju had joined the present applicant in filing the first writ petition being Criminal Misc. Writ Petition No. 13183 of 2015 and stay order was granted and the statement got recorded of her before the Magistrate u/s 164 Cr.P.C. She stated therein that she had voluntarily married with Shoaib and that both are living happily as husband and wife
7. Per contra, the argument advanced by learned Additional Government Advocate is that once the charge sheet has been submitted, it is for the criminal court to proceed with the trial and it is always open for the applicant to lead such evidence in his defence as may be available to get the ultimate acquittal if he is innocent. It is also argued that still there is an opportunity available to the applicant to apply for discharge at the time of framing of the charges and therefore, this Hon'ble Court may not exercise its extraordinary jurisdiction under Section 482 Cr.P.C.
8. Having heard learned counsels for the parties and their arguments across the Bar and having perused the record, I find that the present applicant has been charge sheeted in Case Crime No. 701 of 2015, under Sections 386, 506 IPC. Section 386 IPC provides for punishment for extortion by putting a person under fear of death or grievous hurt. Further Section 383 and 405 IPC are reproduced hereunder:
"383. Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]"
9. A bare perusal of FIR that has resulted in the charge sheet, one may, on the face of it suggest that the offence under Section 386 IPC is made out but looking to the two FIRs bearing Case Crime No. 701 of 2015 and Case Crime No. 523 of 2015 and the fact that the writ petition was got filed by the daughter of first informant herself as Anjum Rehman @ Anju Rani bearing Criminal Misc. Writ Petition No. 13183 of 2015 with present applicant as co-petitioner, and in which the admission was made that she has voluntarily married with Shoaib and interim protection was granted by this Court, there is no evidence available with the Investigating Officer to prima facie express the opinion that the commission of the offence alleged was made out.
10. Again when the girl herself made statement regarding marriage with Shoaib under Section 164 Cr.P.C. and police submitted final report of closure No. 150 of 2015 and the same has been accepted by learned Magistrate vide order dated 13.08.2016, the entire allegation in the subsequent FIR turns out to be only an afterthought. It is worth noticing that statement that was recorded of the girl was recorded on 08.09.2015 that is after the second FIR in Case Crime No. 701 of 2015 was recorded on 30.06.2015. The statement recorded of victim Anjum Rehman under Section 164 Cr.P.C. is reproduced under:
^^vUtqe jgeku mQZ vUtw jkuh iq=h Jh ujs'k dqekj fuoklh dLck feVVwyky Fkkuk [krkSyh ftyk eq0uxjA ,lvkbZ lat; dqekj R;kxh }kjk Jheku eq[; U;kf;d eftLVªsV eq0uxj ds vkns'k ds vuqdze esa ihfM+rk vUtqe jgeku dks c;ku gsrq esjs le{k mifLFkr fd;k x;kA esjs }kjk ihfM+rk ls iwNus ij fd ml ij c;ku nsus gsrq dksbZ ncko rks ugha gSA bl ij ihfM+rk }kjk fdlh Hkh izdkj ds ncko ds gksus ls badkj fd;k x;k o Lora=rk iwoZd viuh ethZ ls c;ku nsus dk dFku fd;k x;kA ihfM+rk vUtqe jgeku }kjk l'kiFk dFku fd;k x;k fd esjh tUe frfFk 8&4&1993 gSA eSa fnukad 18&5&15 dks lqcg vius ?kj ls viuh ethZ ls eks0 'kks,c ds lkFk Vªsu ls bykgkckn pyh xbZ FkhA eSa eks0 'kks,c dks fiNys ikap lky ls tkurh gWwaA eSus viuh ethZ ls eqfLye /keZ viukdj fnukad 30&1&15 dks eqfLye jhfr fjokt ls xkao Qqyd esa eks0 'kks,c ls fudkg dj fy;k FkkA fudkg ds ckn eSa vius ?kj okil vk x;h FkhA eSus fudkg ds ckjs es vius ?kj esa fdlh dks ugha crk;k FkkA fnukad 19&5&15 dks bykgkckn esa eSus vkSj 'kks,c us dksVZ eSfjt dj dj yhA fudkg ds ckn ls eSa vkSj 'kks,c ifr iRuh lkFk jg jgs gSa eq>s eks0 'kks,c us cgyk;k Qqlyk;k ugha Fkk cfYd eSa Lo;a viuh ethZ ls eks0 'kks,c ds lkFk x;h FkhA^^
11. Further in view of the statements recorded under Section 161 Cr.P.C. if the names of main accused Shoaib and others except the applicant have been expunged, there was no substantial / credible evidence with the Investigating Officer to submit charge sheet against the applicant. The statements, as have come to be recorded under Section 161 Cr.P.C. of Manoj, Nadeem and Zakir, do not establish the charge. Even otherwise, from the sequence of the evidence and the fact that the daughter of first informant had entered into nuptial knot voluntarily with the nephew of the applicant it clearly transpires that the main accused was Shoaib and all other persons had falsely been implicated because they are related to Shoaib.
12. Two adult persons have married and have decided to live together. The relatives of said persons therefore, cannot be subjected to criminal prosecution for the voluntary act of major persons. The offences are clearly not made out. The FIR and institution of criminal proceedings are nothing but only with an intention to harass the applicant and FIR is a bundle of cock and bull story.
13. This Court therefore, concludes that the Investigating Officer has not been able to collect any credible evidence to establish the charge so as to sustain the charge sheet. Charge sheet no.324 of 2015 dated 17.09.2015 is accordingly quashed and so also the consequential criminal proceedings in Case No. 10839/9 of 2015, State v. Habiburrahman.
14. The application under Section 482 Cr.P.C. is accordingly allowed.
Order Date :- 9.1.2019 IrfanUddin