Allahabad High Court
Payal Pandey @ Payal Kapoor vs State Of U.P. Thru. Secy. Home Deptt. ... on 26 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:66862 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8717 of 2024 Applicant :- Payal Pandey @ Payal Kapoor Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Lko. And Others Counsel for Applicant :- Suresh Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Heard Sri Suresh Kumar, learned counsel for the applicant and learned AGA for the State of U.P. as well as perused the record.
By means of this application, the applicant has prayed for the following main relief(s):-
"??? ??? ???????? ???????? ?? ????? ?????? ?? ??????? ?????? ?? ?? ??? ??0-5504/2017, ????? ??0-0359/2016 ????? ???? ??????? ????? ???, ??????? 498?, 323,504 ??0??0 ?? ? 3/4 ???? ???????? ??????? 1961, ????-??????, ????-???? ?? ????????? ?? ??? ???????? ?? ????? ????????? ?? ?? ????????? ?????? ???? ???? ??? ??????? ????? ????????? ??? ???? ????????? / ????? ????????? (???????? ???????????) ??????? ????, ??????? ??0- 674/2022, ???? ????? ???? ?0???0 ????? ? ???? ?? ???? ??????- 23/08/2024 (???????/??????? ??0-12) ??? ???????? ??????? ??????? ?????????? ?????? ???? ?? ??? ??0-5504/2017 ????? ??0- 359/2016, ?????? 498?, 323,504 ?????0 ?? ? 3/4 ???? ???????? ??????? 1961, ????-??????, ????-????, ????? ???? ??????? ????? ??? ??? ????? ???? ??????-30/11/2022 (???????/??????? ??0- 11) ?? ????? ???? ???? ?? ???? ????? ???? ???? ?? ???? ?? ?????"
Vide order impugned dated 30.11.2022 passed in Criminal Case No. 5504 of 2017 (State vs. Aishwarya Pandey and others) arising out of Case Crime No. 0359 of 2016, under Section- 498-A, 323, 504 IPC and Section 3/4 D.P. Act, Police Station- Hasanganj, District- Lucknow, the Judicial Magistrate (IInd), Lucknow (in short "Magistrate") rejected the application preferred by the applicant under Section 216 Cr.P.C, which was preferred to add the charge related to the offence under Section 313 IPC.
The initial case setup by the prosecution in the FIR in issue i.e. FIR/Case Crime No. 0359/2016 dated 31.08.2016 and subsequently indicated by the applicant in her statement recorded before the trial court, only on the issue involved in this case, is to the effect that the accused/opposite party No. 2 (husband of the applicant) in the year 2016 told the informant/applicant that he does not want the child as it is not his own and directed the applicant to get it aborted and the same was opposed by the applicant and therefore, the husband of the applicant kicked her on her abdomen, on account of which, three months' old pregnancy was terminated.
As per the FIR, the applicant got pregnant in the month of February, 2016 and the date of termination of pregnancy is not clear either from the FIR or from the statements of applicant/victim recorded before the trial court.
The medical prescription dated 21.02.2016 annexed at page No. 94 of the paper book of doctor Dinesh Kumar, M.B.B.S., F.R.H.S. having his clinic at C-44, Sector-H, Aliganj, Lucknow-226020 and 10, Kanchan Market, Shastri Nagar, Rakabganj, Lucknow-226004 indicates that on 21.02.2016, the applicant was having pregnancy of three months.
The medical prescription dated 27.02.2016 annexed at page No. 95 of the paper book of doctor Mrs. Nidhi Kataria Sonkar, M.B.B.S., D.G.O. (Obs & Gynae) of Angel Clinic, A-1/7, Sector-I (I), Jankipuram, Near Arjun Tikonia Park, Lucknow-226021 does not indicate any period of pregnancy of the applicant.
It would be apt to indicate that aforesaid documents/medical prescriptions were/are not made exhibits before the trial court.
It would also be apt to indicate that the documents annexed at page Nos. 94 and 95 of the paper book are the medical prescriptions of the doctors concerned namely Sri Dinesh Kumar and Mrs. Nidihi Kataria Sonkar, which were not submitted alongwith the report/charge sheet by the Investigating Officer nor these doctors are the witnesses of prosecution as per charge sheet, as stated by the learned counsel for the applicant on being asked.
Taking note of the aforesaid background of the case, the Magistrate rejected the application preferred by the applicant under Section 216 Cr.P.C. vide order dated 30.11.2022, under challenge, relevant portion of which on reproduction reads as under:-
"?????????? / ?????? ?????? ????????????? ??????? ???? 216 ???? ????????? ?????? 1973 ???? ???? ??? ???? 313 ?????????? ?????? ???? ???? ???????? ???? ??? ??? ?????????? ?????? ????? ??? ?? ?? ??? ???? ??? ?? ?? ??????????/?????? ? ???? ??? ??????? ?????? ?? ?????? ?? ?????? ??????? ???? ??? ?????????? ?? ????? ?????? ?? ??? ??????? ?????? ?? ?????? ?? ????-???? ??? ???? ??? ?? ??? ??? ?? ????? ?????? ?? Miscarriage ?? ???? ?????????? ?? ???? ????? ??????? ??? ?? ??? ???? ?? ?? ?????? ?? ??? ?????? ?????? ?? ??? ?? ??? ????? ?? ??? ?????? ?? ???? ?????? ????? ?? ??? ?????? ?? ???????? ?????? ?? ?????? ?? ???? ??? ???? ???????? ??? ?????? ?? ???? ??? ??? ?????? ?????? ?????????? / ?????? ?? ????????? ??????? ???? ??? ?? ???? ??? ???? ??????? ??? ?? ??? ? ?? ???????? ????????? ????????? ?? ???? ?????? ?? ??? ????? ??? ???????? ??????? ?? ???? ?? ?????? ??? ???????? ??? ??? ??????? ????????? ?? ???????? ???? ????? ??? ??? ??????? ?????? ??????????/?????? ?? ????????? ??????? ???? ???? ?????? ?? ???????? ?? ????? ???????? ???? ????? ??? ?? ? ?? ??????? ???? ?????? ??? ?? ??? ??? ??? ????????? ???????? ?? ???????? ???? ??? ?? ????? ?? ?????? ?? ??? ?? ?????? ?????? ?? Miscarriage ???-??? ?? ???? ?? ??? ??? ??????? ???????? ?? ???? ?? ??????????/?????? ?????? ???????? ????????????? ??????? ???? 216 ?????????? ????? ???? ???? ????? ???
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?????????? / ?????? ?????? ???????? ????????????? ??????? ???? 216 ?????????? ????? ?? ???? ??? ???????? ?????? ??????? ?????? 09.12.2022 ?? ??? ???"
The order dated 30.11.2022 was challenged by the applicant by means of a revision i.e. Criminal Revision No. 674 of 2022 (Payal Pandey vs. State of U.P. and others), which was dismissed by the Additional Sessions Judge/Special Judge (Anti Terrorist Squad) Act, Lucknow (in short "revisional court") vide order dated under challenge dated 23.08.2024, the relevant portion of which on reproduction reads as under:-
"12- ???????????????? ?? ?? ?? ???? ?????? ?? ?????? ??? ?????? ??????? ???????? ?? ???? ???????? ANANT PRAKASH SINHA @ ANANT SINHA VS. STATE OF HARIYANA AND ANR. ON 4 March, 2016 SC ??? PANKAJ SHARMA AND 3 ORS VS. STATE OF UP AND ANR ON 12 MARCH, 2019 SC ?? ????? ???? ??? ??, ????? ???????? ?????? ??????? ?????? ???? ???? ?? ???????? ?????? ???? ???????? ?? ??????? ???? ?????????? ?? ?????? ???? ??, ?????? ??????? ???? ??????????? ???????? ?????? ?? ?????? ?? ???????????? ?? ????? ???? ?? ???? ???????? ????? ??? ???????????????? ?? ??? ??? ???? ???????? ????
13- ??????? ??? ????????? ?????? ???????? ???? ?? ???? ?? ?????? ???? ??? ?? ?? ??????? ?????? ????????? ?? ????????? ??????? ???? ???? ?????? ?? ???????? ?? ????? ???????? ???? ????? ??? ?? ?? ? ?? ??????? ???? ?????? ?? ??? ??? ????????? ???????? ???????? ???? ??? ??, ????? ?? ?????? ?? ?? ?????? ?????? ?? Miscarriage ?????? ?? ???? ?? ??? ??? ??????? ???????? ?? ???? ?? ?????? ?? ????????????? ???????? ???? 216 ????????? ??????? ??? ???????? ?????? ????? ???? ??? ???
14- ??? ??????? ?????? ??? ?????? ?? ???? ??? ???????????? ?? ?????? ??? ??????? ?????????? ?????? ????? ???? ??? ????????????? ?? ??????? ??? ??? ?????? ????????? ???? ???? ?? ?? ? ?? ???? ?????? ?? ?????????? ?? ??? ??? ??????? ?????????? ?????? ????? ???? ????????? ???? ???? ????? ???? ?? ???? ???????? ???? ???? ????? ??? ???????? ???????????????? ?????? ???????? ????????? ????? ???? ?? ???? ?????? ???? ???? ????? ???
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???????? ??????? ????????? ??0-674/2022 ???? ??????? ????? ?????? ????? ??? ?????? ???? ???? ?? ??? ??????? ?????????? ?????? ????? ???? ???????? 30.11.2022 ???????? ???? ???? ???
??????? ??? ???????? ?? ??????? ???????? ???? ?? ????? ?? ??? ???? ???? ???? ????????? ?? ???????? ?????????? ?????????? ???????? ?? ????"
Impeaching the impugned orders dated 30.11.2022 and 23.08.2024 and also the consequential relief(s) sought in the instant application, learned counsel for the applicant submitted that in view of language couched under Section 216 Cr.P.C., the magistrate/trial court including the sessions court is empowered to alter or add any charge at any stage of the proceedings including before pronouncement of the judgment and the charge can be changed, altered or added on the basis of evidence available on record and in the instant case, the allegations related to termination of pregnancy on account of the act of opposite party No. 2 ought to have been framed under Section 313 IPC, as allegations in this regard were levelled in the FIR and also in the statements of all the witnesses recorded before the trial court. Prayer is to allow this application.
Learned AGA opposed the instant application. He says that there is no evidence so as to establish/suggest that the pregnancy was terminated on account of the act of opposite party No. 2, as such, no interference is required in the impugned orders dated 30.11.2022 and 23.08.2024.
Considered the aforesaid and perused the record.
From the aforesaid facts, it is apparent that vague and bald allegations were levelled in the FIR in issue regarding termination of pregnancy by the opposite party No. 2 and thereafter all witnesses of fact of the prosecution stated before the trial court in same tune.
The documents on record i.e. the prescriptions of the doctors namely Sri Dinesh Kumar and Mrs. Nidhi Kataria Sonkar have not been exhibited before the trial court and being so cannot be considered as evidence, and also that the said evidence was not submitted by the Investigating Officer alongwith the report/charge sheet submitted by him, if taken on its face value even then the same do not suggest that the pregnancy was terminated. It only indicates that at the time of issuance of aforesaid medical prescriptions, the applicant was having three months pregnancy and as per the FIR, the applicant got pregnant in the month of February, 2016 itself.
For the reasons aforesaid, this Court finds no force in this application. It is accordingly dismissed.
Order Date :- 26.9.2024 Arun/-