Allahabad High Court
Dushyant Yadav vs State Of U.P. & Another on 17 December, 2019
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- U/S 482/378/407 No. - 8746 of 2019 Applicant :- Dushyant Yadav Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Anand Dubey,Tarun Sharma Counsel for Opposite Party :- Govt. Advocate,Aditya Dwivedi Hon'ble Rajeev Singh,J.
Heard learned counsel for the applicant, learned counsel for the opposite party No.2 and learned A.G.A.
Learned counsel for the applicant is permitted to make necessary correction in the memo of petition during the course of day.
This application under Section 482 Cr.P.C. has been filed for quashing the order dated 06.10.2018 passed by the Civil Judge (S.D.) Fast Track/Additional Chief Judicial Magistrate, Ambedkar Nagar as well as the order dated 14.11.2019 passed by Sessions Judge, Ambedkar Nagar as well as further proceedings of Case No.2857 of 2018 arising out of Case Crime No.80 of 2016, under Sections 376 D, 504 and 506 I.P.C., Police Station Rajesultanpur, District Ambedkar Nagar.
Learned counsel for the applicant submitted that as per the prosecution case on 02.04.2018 at about 7:00 p.m. when the opposite party No.2 was going to ease, her modesty was outraged by the Raj Kumar, Pradeep and Dushyant-applicant. Therefore, opposite party No.2 moved an application under Section 156 (3) Cr.P.C. before the Judicial Magistrate, Ambedkar Nagar. Thereafter, under the order of the Magistrate concern, the FIR was registered, as FIR No.80 of 2018 under Sections 376D, 504 and 506 I.P.C., Police Station Rajesultanpur, District Ambedkar Nagar. Thereafter, a detailed investigation was conducted by the Investigating Officer and statement of prosecutrix under Section 161 and 164 Cr.P.C. was recorded. The contents of her statements were also investigated by the Investigating Officer and the place of incident was also minutely examined by the Investigating Officer and found that it was not corroborate with the version of the prosecutrix and the same time presence of applicant was found in Jaika Restaurant Ram Nagar near VJV, College and his presence was duly captured by CCTV Camera and call detail report (CDR) was also in support of his location. After examining all the aspects i.e statement of the prosecutrix, side plan and call detail report including the CCTV Footage, the final report dated 22.06.2018 was filed by the Investigating Officer.
As notice was issued to the opposite party No.2, then, she filed a protest application on 12.09.2018 and she stated in her protest application that the final report was filed by the Investigation Officer only with intention to give favour to the accused persons. The statement of the prosecutrix under Section 161 and 164 Cr.P.C. was not considered by the Investigating Officer and the call detail report (CDR) of Pradeep Kumar Pandey was not examined and requested for summoning of the accused persons treating it as State case. The protest application of opposite party No.2 was allowed by the Civil Judge (S.D)/FTC, Ambedkar Nagar.
Learned counsel for the applicant further submitted that the cognizance was taken by the court below under Section 191 (1) (a) of Code of Criminal Procedure, only considering the statement of prosecutrix recorded under Section 161 and 164 Cr.P.C. and rest of the evidence was collected by the Investigating Officer was not dealt with. He further submitted that the call detail report of applicant, CCTV footage and description of the side plan which was examined by the Investigating Officer, after reaching the spot were also not considered by the court below at the time of passing impugned order.
Counter affidavit was already filed by Mr. Aditya Diwedi, Advocate, on the behalf of the opposite party No.2, in which opposite party No.2 stated that applicant was not involved in the crime and he has been wrongly named in the present case.
Learned A.G.A. opposes the prayer of the applicant and submitted that the affidavit of opposite party No.2 cannot be considered, at this stage, but he conceded the fact that FIR was registered on the complaint of opposite party No.2, thereafter, investigation was conducted by the Investigating Officer, in accordance with the provision of Chapter XI of U.P. Police Regulation, Act and Chapter XII of Code of Criminal Procedure. He further submitted that there is no illegality in the order passed by the learned court below and court below is duly empowered to summon the accused under Section 190 (1) (a) of Code of Criminal Procedure.
Considering the arguments of learned counsel for the parties and going through the FIR, statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. and the side plan prepared by the Investigation Officer and observation made by the I.O. on the basis of call detail report and CCTV Footage about the presence of the applicant. It is undisputed that the court below has ample power to summon the accused persons, in case the police submitted final report, but it is obligatory on the part of the court below to examine all the evidences collected by the Investigating Officer and pass appropriate order. As it is evident from the record as well as impugned order that at the time of passing the summoning order, only the statement of prosecutrix under Section 161 and 164 Cr.P.C. was considered and rest of the evidence related to the place of incident and side plan prepared by the Investigating Officer, call detail report were collected and examined by the Investigating Officer and also the CCTV Footage was not considered.
The Division Bench of this Court in the case of Deepak Pandey @ Jitendra @ Satendra and Anr Vs. State of U.P. passed in Writ Petition No.17447 of 2016 decided that that statement under Section 164 Cr.P.C. is not substantive evidence. It can be used to corroborate the statement of a witness.
In the aforesaid decision, it was also observed that the statement made under Section 164 Cr.P.C. can never be used as substantive evidence of the fact stated, but it can be used to support or challenge evidence given in Court by the person to make the statement. It was obligatory on the part of the court below to examine rest of the evidences collected by the Investigating Officer, also.
For the discussions made above, the application (u/s 482 Cr.P.C.) is allowed and the order dated 06.10.2018 passed by the Civil Judge (S.D.) Fast Track/Additional Chief Judicial Magistrate, Ambedkar Nagar as well as the order dated 14.11.2019 passed by Sessions Judge, Ambedkar Nagar as well as further proceedings of Case No.2857 of 2018 arising out of Case Crime No.80 of 2016, under Sections 376 D, 504 and 506 I.P.C., Police Station Rajesultanpur, District Ambedkar Nagar, is hereby quashed.
The matter is remanded back to the Court concerned for passing fresh order, expeditiously in accordance with law.
Office is directed to communicate this order to the Additional Chief Judicial Magistrate, Ambadkar Nagar, for compliance.
Order Date :- 17.12.2019 Amit/-