Allahabad High Court
Smt. Sunita Devi vs State Of U.P And Another on 20 January, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 19916 of 2020 Applicant :- Smt. Sunita Devi Opposite Party :- State Of U.P And Another Counsel for Applicant :- Gaurav Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Gaurav Kumar Shukla, learned counsel for applicant and learned A.G.A. for State.
2. Present application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 27.07.2019 submitted in Case Crime No.208 of 202019 under Sections 363, 366, 504, 506, 120B I.P.C. P.S.-Bhakhira District-Sant Kabir Nagar, Cognizance Taking Order /summoning order dated 20.11.2019 passed in consequential Special Case No. 663 of 2019 ( State Vs. Sunita Devi and others) as well as entire proceedings of above mentioned case now pending in the Court of Additional Sessions Judge POCSO-IInd, District-Sant Kabir Nagar.
3. It transpires from record that in respect of an incident which is alleged to have occurred on 26.05.2019, a delayed F.I.R. dated 29.05.2019 was lodged by Ghanshyam Tripathi, father of prosecutrix and was registered as Case Crime No.208 of 202019 under Sections 363, 366, 504, 506, 120B I.P.C. P.S.-Bhakhira District-Sant Kabir Nagar. In the aforesaid F.I.R., five persons namely Hari Om Dutt Shukla, Sunita Devi (applicant herein), Akhilesh, Umesh and Ramesh have been nominated as named accused. Sunita Devi is mother of Hari Om Dutt Shukla, Akhilesh is Father of Hari Om Dutt Shukla whereas Umesh and Ramesh are brothers of Hari Om Dutt Shukla.
4. Subsequent to the F.I.R., statement of prosecutrix was recorded under Section 161 Cr.P.C. on 30.05.2019 followed by her medical examination on 01.06.2019. Ultimately, statement of prosecutrix was recorded under Section 164 Cr.P.C. on 26.05.2019.
5. After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of chapter XII Cr.P.C. After completion of investigation, Investigating Officer ultimately submitted the charge sheet dated 27.07.2019 whereby accused Hari Om Datt Shukla @ Diamond has been charge sheeted under sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, accused applicant Sunita Devi has been charge sheeted under Sections 363, 366, 504, 506 and 120B I.P,C, where an accused Akhilesh, Umesh and Ramesh have been charge-sheeted under Sections 504, 506 I.P.C.
6. Upon submission of charge sheet 27.07.2019, court concerned took cognizance upon same and simultaneously, summoned accused vide Cognizance Taking Order/Summoning Order dated 20.11.2019.
7. Feeling aggrieved by the charge sheet dated 27.07.2019, Cognizance Taking Order / Summoning Order dated 20.11.2019 passed by Additional Session Judge POCSO-IInd, District-Sant Kabir Nagar as well as entire proceeding of Special Sessions Trial No. 663 of 2019 (State Vs. Sunita Devi and others), pending in the Court of Additional Sessions Judge POCSO-IInd, Sant Kabir Nagar, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
8. Learned counsel for applicant contends that applicant is the mother of accused Hari Om Dutt Shukla. On the same set of evidence, father of Hari Om Dutt Shukla i.e. husband of applicant namely Akhilesh and her other two sons namely Umesh and Naresh have been charge-sheeted under Sections 504 and 506 I.P.C. whereas present applicant, who is a lady has been charge sheeted under Sections 363, 366, 504, 506 and 120B I.P.C.
9. Learned counsel for applicant has then placed the statement of informant recorded by Investigating Officer in terms of Section 161 Cr.P.C., which is on record at page 17 of paper book. On the basis of above it is contended that the informant has implicated present applicant on the basis of heresay evidence. Thereafter, the statements of prosecutrix have been recorded under Section 161 Cr.P.C. and under Section 164 Cr. P.C. On the basis of above, it is contended that none of the ingredients of Sections 363 and 366 are satisfied against applicant. Placing reliance upon statement of prosecutrix recorded under Section 164 Cr.P.C., it is urged that prosecutrix has herself stated that she accompanied Hari Om Dutt Shukla out of her own free will. It is thus urged that no allegation has been made by the prosecutrix against applicant alleging that she was kidnapped by present applicant for any such act as provided in Section 366 I.P.C. He therefore contends that there is no evidence on record to establish complicity of applicant regarding an offence under Sections 363 and 366 I.P.C. Reliance is placed upon judgement of Apex Court in Kavita Chandrakant Lakhani Vs. State of Maharashtra and another, 2018 (6) SCC 664. Paragraphs 15, 16 and 17 of aforesaid judgement are relevant for present controversy. Same are reproduced herein under:
"15. In the above backdrop, it is pertinent to mention here the ingredients ofSection 366of the IPC which are as under:-
"366 "Kidnapping, abducting or inducing woman to compel her marriage, etc.?Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extent do ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
16. In order to constitute the offence of 'abduction' a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this Section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.
17. Apart from this, to constitute an offence underSection 366IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge underSection 366IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned inSection 366IPC, the Court cannot hold the accused guilty and punish him underSection 366IPC."
10. Learned counsel for applicant has then referred to the judgement of Apex Court in Babubhai Vs. State of Gujarat and others (2010) 12 SCC, 254 wherein Court has held that charge sheet can be quashed where the investigation is tainted. Investigating Officer has not conducted free and fair investigation. Investigation so conducted is not impartial. Investigating Officer has failed to consider the statement of prosecutrix recorded under Section 164 Cr.P.C.
11. On the cumulative strength of aforesaid, it is submitted that since there is no evidence on record to even prima facie suggest that an offence under Sections 363 and 366 I.P.C. has been committed by applicant, therefore the proceedings against applicant for an offence punishable under Sections 363 and 366 I.P.C. are liable to be quashed. Reliance is placed upon judgement of Apex Court in R. P. Kapur Vs. State of Punjab, AIR 1960 SC 866.
12. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. submits that submissions raised by learned counsel for applicant are not sustainable for the simple reason that applicant has remedy to raise all objections as pleaded before this Court at the time of Framing of Charge. He therefore contends that present application is liable to be dismissed with liberty to applicant to raise her objections as noted above at the time of Framing of Charge before court below.
13. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of material brought on record, the Court find that first informant in his statement under Section 161 Cr.P.C. has implicated a lady for an offence under Section 363 and 366 I.P.C on the basis of heresay evidence. Furthermore, prosecutrix in her statement under section 164 Cr.P.C has also not implicated the present applicant for an offence punishable under Sections 363 and 366 I.P.C. To the contrary, prosecutrix has stated that she went to accused Hari Om Dutt Shukla out of her own free will. In view of above, there is no evidence on record to implicate present applicant for an offence under Sections 363 and 366 I.P.C. Investigating Officer has completely ignorre the statements of prosecutrix recorded under Section 164 Cr.P.C. Consequently, Investigating Officer has not conducted an impartial investigation regarding the crime in question. Thus charge sheet so submitted against applicant under sections 363 and 366 I.P.C. is unsustainable. There is no evidence to even prima-facie indicate commission of an offence by applicant which is punishable under Sections 363 and 366 I.P.C. by applicant.
14. As a result, charge-sheet dated 27.07.2019 submitted in Case Crime No. 208 of 202019 under Sections 363, 366, 504, 506, 120B I.P.C. P.S.-Bhakhira District-Sant Kabir Naga whereby applicant has been charge sheeted under Sections 363, 366, 504, 506 and 120B I.P,C cannot be sustained as a whole. The charging Sections 363 and 366 are not attracted. Consequently, the charge sheet submitted against applicant under Sections 363 and 366 cannot be sustained.
15. In view of above present application succeeds in part. It is therefore liable to be partly allowed. Consequently, charge-sheet dated 27.07.2019 whereby applicant has been charge-sheeted under Sections 363, 366 504, 506 and 120B I.P.C. is hereby partly quashed, in so far as applicant has been charg-sheeted under Sections 363, 366 I.P.C. Remaining part of the charge sheet submitted against applicant is maintained.
16. Application under Section 482 Cr.P.C. is partly allowed.
Order Date :- 20.1.2021 YK