Allahabad High Court
Smt. Farah Deeba Khan And Another vs State Of U.P. And Another on 10 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 02.02.2023 Delivered on 10.04.2023 Court No. - 66 Case :- APPLICATION U/S 482 No. - 14473 of 2022 Applicant :- Smt. Farah Deeba Khan And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rizwan Ahamad,Rajrshi Gupta,Sr. Advocate Counsel for Opposite Party :- G.A.,Gopal Misra Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajrshi Gupta, the learned counsel for applicants, the learned A.G.A. for State and Mr. Gopal Misra, the learned counsel representing first informant-opposite party-2.
2. Perused the record.
3. Present application under Section 482 Cr.P.C. has been filed challenging the charge sheet No.712 of 2021 dated 25.12.2021(Annexure VII to the affidavit), submitted in Case Crime No.735 of 2021 under Sections 328, 376, 323, 504, 506, 392, 452, 120B I.P.C., and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Police Station-Civil Lines, District-Prayagraj, the Cognizance Taking Order/Summoning Order dated 05.01.2022 passed by Chief Judicial Magistrate, Allahabad in Criminal Case No. 422 of 2022 (State Vs. Quavi Ahmad) under Sections 328, 376, 323, 504, 506, 392, 452, 120B I.P.C., and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Police Station-Civil Lines, District-Prayagraj as well as the entire proceedings of aforementioned criminal case, in so far as they relate to present applicants now pending in the court Chief Judicial Magistrate, Allahabad.
4. Record shows that in respect of an incident, which is alleged to have occurred on 12.09.2021, a delayed F.I.R. dated 13.09.2021 was lodged by first informant/Opposite Party-2, Rajshree Sinha and was registered as Case Crime No.735 of 2021, under Sections 328, 376, 323, 504, 506, 392, 452, 120B I.P.C., and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Police Station-Civil Lines, District-Prayagraj. In the aforesaid F.I.R., one person namely Quavi Ahmad (Son/Brother of applicants) has been nominated as solitary named accused.
5. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of first informant-opposite party-2, wherein the prosecutrix has supported the F.I.R. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the Doctor has rejoined her earlier statement under Section 161 Cr.P.C. The Doctor, who medically examined the prosecutrix, finally opined as follows:-
" There are signs of use of force, however final opinion is reserved because of pending availability of FSL report. Sexual violence cannot be ruled out."
6. The following injuries were found on the body of prosecutrix:
" 1. Injury (swelling) over left eyebrow-2cmx2cm insize
2. Contusion of 5cm x 3 cm on inneer side of upper-arm
3. Bruise over left fore-arm (2cm x 2cm)."
7. However, the injury report of the prosecutrix denotes as follows:-
"1. Contusion of size 3cm x 2 cm arount (left) eye, bruish in colour c/o blurred vision.
2. Abraded contusion of size 5cm x 3 cm on posterior aspect of left arem 12 cm about from force left elbow joint bluish red in colour.
3. Contusion of size 4 cm x 3 cm on anterior aspect of left forearm 5 cm below from left elbow joint reddish blue in colour.
4. Contusion of size 3 cm x 2 cm on medial aspect of left fore-arm. Reddish blue in colour 6cm below from left elbow joint."
Subsequent to above, the statement of the prosecutrix was recorded under section 164 Cr.P.C., wherein she has remained consistent.
8. Investigation Officer also examined other witnesses also under Section 161 Cr.P.C i.e. Smt, Poonam Sinha, Mr. Harish Sinha and Smt. Jaya Mishra. They have also supported the FIR.
9. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that prima facie offence as complained of is established against named accused and the complicity of present applicants is also established in the crime in question. He, therefore, opined to submit a charge sheet. He, accordingly, submitted the charge-sheet dated 25.12.2021, whereby and where-under named accused Quavi Ahmad has been charge sheeted under Sections 328, 376, 323, 504, 506, 392, 452 I.P.C. and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020, whereas two other persons not named in the F.I.R namely Smt. Farah Deeba Khan and Nasir Ahamed i.e. the applicants herein have been charge-sheeted under Sections 506, 120B I.P.C. and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
10. After submission of aforementioned charge-sheet, cognizance was taken upon same by Chief Judicial Magistrate, Allahabad and simultaneously applicants alongwith the other charge-sheeted co-accused were summoned, vide Cognizance Taking Order/Summoning Order dated 05.01.2022 passed in Criminal Case No. 422 of 2022 (State Vs. Quavi Ahmad) under Sections 328, 376, 323, 504, 506, 392, 452, 120B I.P.C., and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Police Station-Civil Lines, District-Prayagraj.
11. Thus, feeling aggrieved by above i.e. the charge-sheet and the Cognizance Taking Order/Summoning Order as well as the entire proceedings of aforementioned case, applicants, who are not named but charge sheeted accused, have now approached this Court by means of present application under Section 482 Cr.P.C.
12. It is apposite to mention here that named accused Quavi Ahmad is the son/brother of applicants but he has not challenged the charge-sheet/as well as the entire proceedings of aforementioned case before this Court.
13. Mr. Rajshri Gupta, the learned counsel for applicants contends that applicants are not named in the F.I.R. They are otherwise innocent. They have been falsely implicated in the aforementioned case crime number by the Investigating Officer. As such, they are being falsely prosecuted in aforesaid case crime number.
14. It is then contended that Investigating Officer has not conducted free and fair investigation. Investigating Officer has acted as an agent of the prosecution is in as much as he has not adverted to the facts and circumstances of the case. In spite of the fact that no cogent reliable and credible material emerged against applicants during the course of investigation yet the charge sheet was submitted. The charge-sheet is thus tainted. Resultantly, the same is liable to be quashed by this Court.
15. According to the learned counsel for applicants, even though F.I.R. is not the encyclopedia of the prosecution case but it must reflect the basic prosecution case. When the allegations made in the F.I.R are examined in the light of above, it is apparent that the allegations made in the FIR are pin pointed against named accused-Quavi Ahmad. Only a bald allegation has been made in the FIR against applicants to the effect that applicants conspired with co-accused Quavi Ahmad for committing rape upon prosecutrix, and on numerous occasions exerted pressure upon the prosecutrix to convert her religion. No details regarding the day, date, time and place of occurrence or the nature of offence has been mentioned in the F.I.R. On the aforesaid premise, he contends that no offence under any of the charging sections i.e. Sections 506, 120B IPC and Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020 are made out against applicants as per the prosecution story as unfolded in the FIR.
16. In the submission of learned counsel for applicants, the impugned summoning order passed by court below is manifestly illegal and arbitrary. No reason has been assigned by court below for taking cognizance upon the police report (charge-sheet) in so far as it seeks to take cognizance against applicants or summoning the applicants. No prima-facie satisfaction was recorded by court below also. The concerned Magistrate has acted like a rubber stamp and has simply concurred with the opinion of the Investigating Officer without exercising his own independent discretion in term of Section 190(1)(b) Cr.P.C. As such, the impugned Cognizance Taking Order/Summoning Order has been passed by court below without adverting to the facts and circumstances of the case. As such, the same is wholly arbitrary and therefore liable to be quashed.
17. It is also contended by the learned counsel for applicants that applicants have been charge-sheeted under Sections 3, 5(1) U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020. He has then referred to Sections 3, 5(1) of aforesaid Ordinance, 2020, which reads as under:-
"3. No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such conversion:
Provited that, if any person reconverts to his/her immediate previous religion, the same shall not be deemed to be a conversion under this Ordinance.
5(1). Whoever contravenes the provisions of section 3 shall, wihout prejudice too any civil liability, be punished with imprisonment for a term, which shall not be less than one year but which may extend to five years and shall also be liable to fine which shall not be less than rupees fifteen thousand;
Provided that whoever contravenes the provisions of section 3 in respect of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled Tribe shall be punished with imprisonment for a term which shall not be less than two years but which may extend to ten years and shall also be liable to fine which shall be not less than rupees twenty five thousand;
Provided further that whoever contravenes the provisions of section 3 in respect of mass conversion shall be punished with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine which shall not be less than rupees fifty thousand;"
18. With reference to above, he contends that as per settled legal position, specific words of threats or coercion etc. which have to be brought on record by the alleged victim. However perusal of the statements of the prosecutrix under Sections 161 and 164 Cr.P.C. itself goes to show that the same are conspicuous by their absence. To lend legal support to his submission, he has relied upon the following judgments:-
1. Manik Taneja Vs. State of Karnataka (2015) 7 SCC 423.
2. Vikram Johar Vs. The State of Uttar Pradesh and Others (2019) 14 SCC 207.
3. Pramod Suryabhan Pawar Vs. The State of Maharashtra and Another (2019) 9 SCC 608.
4. Sonu @ Subhash Kumar Vs. State of U.P. and Another 2021 SCC OnLine SC 181.
5. Naim Ahamed Vs. State (NCT of Delhi) 2023 SCC OnLine SC 89.
19. On the conspectus of aforesaid, it is thus urged by the learned counsel for applicant that the impugned charge-sheet, the Cognizance Taking Order/ Summoning Order as well as the entire proceedings of aforementioned case are unsustainable in law and fact. As such, the same are liable to be quashed by this Court.
20. Mr. Gopal Mishra, the learned counsel representing opposite party-2 has opposed this application. He contends that after conducting statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C., Investigating Officer on the basis of material collected by him during course of investigation came to the conclusion that offence complained of is established against named accused Quavi Ahmad, whereas the complicity of not named accused i.e. the applicants herein is also prima-facie established in the crime in question, has submitted the police report (charge-sheet) dated 25.12.2021. In the charge-sheet so submitted as many as 11 prosecution witnesses have been nominated. As such, it cannot be said at this stage that prosecution case is false or there is no material to support the prosecution case.
21. According to Mr. Gopal Misra, the Court is not required to undertake a detailed enquiry or record cogent findings with reference to the material on record at the time of taking cognizance or summoning an accused on the basis of a police report submitted under Section 173(2) Cr.P.C. The issue as to what should be the nature of the order in the light of above is no longer res-integra and stands settled by the Apex Court in paragraph 21 of the judgment in State of Gujarat Vs. Afroz Mohammed Hasanfatta (2019) 20 SCC 539. For ready reference, the same is reproduced hereinunder:-
"In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C."
22. On the issue that as the specific words of threat or coercion have not been pointed out by the prosecutrix in the FIR or her statements under Section 161 Cr.P.C., no offence under Section 506 IPC is made out against applicants, Mr. Gopal Misra, the learned counsel has referred to the comentary on IPC by Ratan Lal and Dheeraj Lal 33rd Edition. Much reliance has been placed upon the recital contained at page 3357. For ready reference, the same is reproduced hereinunder:-
"(a) Essential Ingredients. - The offence of criminal intimidation has been defined under Section 503 IPC, Section 506 provides punishment for it.
An offence under Section 503 has following essentials:
1. Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat."
23. On the above premise, he submits that at this stage it cannot be definitely concluded that no offence under Section 506 IPC is made out against applicants.
24. It is lastly contended by the learned counsel for the first informant that Quavi Ahmad, who is a named and charge sheeted accused, has not challenged the proceedings of aforementioned criminal case. Applicants have been charge sheeted under Sections 506, 120B IPC and 3, 5(1) UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020. He submits that conspiracy is a closed door affair and therefore, subject to trial evidence.
25. In the submission of the learned counsel for first informant-opposite party 2 at this stage, the Court has to only examine as to whether a prima-facie case is made out or not, or there is strong suspicion against applicants (vide Tarun Jit Tejpal Vs. State of Goa (2020) 17 SCC 556). Since a prima-facie case is made out against applicants, therefore, no indulgence be granted by this Court in favour of applicants.
26. Having heard the learned counsel for applicants, the learned A.G.A. for State, Mr. Gopal Misra, the learned counsel for first informant-opposite party 2 and upon perusal of record, this Court concludes that in depth arguments have been raised for and against the applicants, but it cannot be said at this stage that no prima-facie case is made out against applicants.
27. Any conclusive finding returned by this Court at this stage one way or the other may prejudice the prosecution or the defence. Resultantly, the Court refrains from doing so.
28. In view of above, this Court does not find any illegality in the impugned charge sheet submitted against applicants or the Cognizance Taking Order/Summoning Order passed by court below. The impugned proceedings cannot be said to be illegal either.
29. As a result, the present application fails and is liable to be dismissed.
30. It is accordingly dismissed.
Order Date :- 10.04.2023 YK