Uttarakhand High Court
Arvind Kumar vs State Of Uttarakhand And Others on 20 July, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 1208 of 2024
Arvind Kumar ...Applicant
Vs.
State of Uttarakhand and Others ...Respondents
Presence:
Ms. Irum Zeba with Mr. Rafat Munir Ali, learned counsel for the
applicant.
Mr. Akshay Latwal, learned Brief Holder for the State.
Hon'ble Rakesh Thapliyal, J. (Oral)
The present criminal miscellaneous application has been preferred by the applicant under Section 482 of Cr.P.C. challenging the proceeding of Criminal Case No. 195 of 2024 'State vs. Arvind and Others' pending in the court of Additional District and Sessions Judge/ POCSO, Haridwar, wherein, the present applicant has been summoned for the offences punishable under Sections 323, 354, 452, 504, 506 of IPC and Section 7/8 of Prevention of Children from Sexual Offences Act, 2012.
2. The brief facts of the case are that a First Information Report was lodged by respondent no. 3 on 27.03.2024 bearing FIR No. 195 of 2024 P.S. Pathri, District Haridwar, wherein, the present applicant as well as his brother Pushpendra were implicated. This First Information Report has been lodged for the offences punishable under Sections 323, 354, 452, 504, 506 of IPC r/w/ 7/8 of POCSO Act.
3. After completion of investigation the charge-sheet was filed and the applicant was chargesheeted for the offences punishable under sections 323, 354, 452, 504, 506 of IPC r/w/ 7/8 of POCSO Act and so far as other accused Pushpendra is concerned, who is, in fact, is the real brother of the present 2 applicant-Arvind Kumar, was chargesheeted only for the offences punishable under Sections 323 and 452 of IPC.
4. The Additional District and Sessions Judge/POCSO, Haridwar, on 06.05.2024 take cognizance on the charge-sheet and summoned both the accused persons-the present applicant and Pushpendra.
5. Being aggrieved with the summoning order as well as the proceeding arising out of the First Information Report dated 27.03.2024 bearing FIR No. 0195 of 2024 the instant application has been preferred under Section 482 of Cr.P.C.
6. Learned counsel for the applicant submits that initiation of the proceeding pursuant to the First Information Report lodged by respondent no. 3 is a glaring example of malicious prosecution and, in fact, with ulterior purposes and motive the respondent no. 3 lodged the FIR.
In reference to this, learned counsel for the applicant submits that the present applicant purchased a house from the cousin brother of one Vivek namely Vishal pursuant to a registered sale deed dated 25.03.2017 and after purchasing the said house the applicant is residing in this family since 2017 in the said house. It is submitted that just adjacent to the house purchased by the present applicant there is a house of one Vivek, who is the cousin brother of Vishal in which the respondent no. 3 (the complainant) is residing with her family as a care taker.
7. It is submitted that since the date when the applicant purchased the house Mr. Vivek whose house is just adjacent to the house of the applicant is pressurizing to the applicant to sell this house to him, otherwise, he will keep on troubling with him and his family members. It is also submitted that Mr. Vivek is serving as a constable in Police department and he always threatening that if he will not sell the house to him then he will 3 implicate in false cases. It is submitted that immediately thereafter on 03.11.2017 a written complaint was made to the S.S.P., Haridwar (the copy of which is also enclosed at page 84 of the paper book).
8. It is further submitted that thereafter the applicant's wife also lodged a First Information Report on 01.11.2017 at P.S. Pathri, District Haridwar registered as Case Crime No. 241 of 2017 against this person Vivek as well as against some other persons, wherein, after investigation the charge-sheet was filed against six persons including Vivek for the offences punishable under Sections 147, 323, 427, 452, 504 and 506 of IPC on which the Judicial Magistrate III, Haridwar took cognizance on 12.03.2018 and the trial is going on.
9. A further reference has been made of another FIR lodged by the applicant on 28.03.2024 bearing FIR No. 201 of 2024, P.S. Pathri, District Haridwar, wherein, the respondent no. 3 and her husband Sanjeev Kumar was also implicated for the offences punishable under Sections 323, 504 and 506 of IPC and this FIR relates to the incident, which was happened on 24.03.2024.
10. Learned counsel for the applicant submits that though the FIR lodged by the present applicant on 28.03.2024 is subsequent to the FIR lodged by the respondent no. 3, but, in fact, the allegations as alleged in his FIR, as a matter of fact, is correct.
11. Learned counsel for the applicant submits that, in fact the person Vivek, who was chargesheeted on the FIR lodged by the applicant's wife is, in fact, is the modus operandi for initiation of this proceeding and in reference to this submission, the learned counsel for the applicant submits that firstly this person was chargesheeted on the FIR of the applicant's wife and secondly, he was pressurizing to the applicant to sell the house, 4 which he has purchased from his cousin brother and the reason was that the adjoining of the house is owned by this person Vivek in which the respondent-complainant is residing as a tenant/caretaker.
12. By giving reference of these two aspects learned counsel for the applicant submits that since Vivek is the modus operandi and is the main conspirator, the impugned proceeding is nothing but a proceeding initiated on the instance of Vivek and as such this proceeding is nothing but appears to be a glaring example of malicious prosecution as the same was instituted with some ulterior purposes and motive. So far as the offence as alleged in which the present applicant has been chargesheeted is concerned, learned counsel for the applicant gives reference of the "fard memo" of the footages of the incident, which was recorded in pendrive as well as gives reference of the certificate issued under Section 65-B of the Indian Evidence Act, 1878, which is also brought on record and by giving reference of these documents learned counsel for the applicant submits that on close scrutiny of the "fard memo" as well as the certificate issued under Section 65-B the offence punishable under Section 7/8 of POCSO Act is not made out since there is no such ingredients, which constitutes such offence.
In reference to this, learned counsel for the applicant further gives reference of the statement of the victim, who is, in fact, is the daughter of respondent/complainant recorded under Section 164 of Cr.P.C. and by giving reference of this statement learned counsel for the applicant submits that the statement as recorded under Section 164 of Cr.P.C. is completely contrary to the "fard memo" as well as the certificate issued under Section 65-B of the Indian Evidence Act, which, in fact, is the most material evidence and easily an inference can be drawn that the 5 statement of the victim recorded under Section 164 of Cr.P.C. is not at all reliable.
13. Prima-facie, I found force on submissions as advanced by the learned counsel for the applicant; however, for the purposes of final adjudication of the issue as raised the counter affidavit of the respondent/complainant as well as the prosecution are also required.
14. Learned State counsel accepts notice for respondent nos. 1 and 2.
15. Issue notice to respondent no. 3. Steps be taken within a week, returnable within three weeks, with acknowledgement due.
16. Let the counter affidavit be filed by the respondent within a period of four weeks.
17. Thereafter, two weeks' time is granted to the learned counsel for the applicant to file rejoinder affidavit.
18. List this matter on 03.09.2024.
19. For an interim measure, till the next date of listing the further proceeding of Criminal Case No. 195 of 2024 'State vs. Arvind and others', wherein, the present applicant has been summoned for the offences punishable under Sections 323, 354, 452, 504, 506 of IPC r/w/ 7/8 of POCSO Act pending in the court of Additional District and Sessions Judge/POCSO Act, Haridwar, shall remain stayed.
.
(Rakesh Thapliyal, J.) 20.07.2024 PR