Allahabad High Court
Mukesh Chaudhari vs State Of U.P. And 3 Others on 4 April, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 11208 of 2023 Applicant :- Mukesh Chaudhari Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Tanisha Jahangir Monir,Avinash Mani Tripathi,Mohammad Alam Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
List revised.
Heard Ms. Tanisha Jahangir Monir, learned counsel for the applicant, Sri Ankit Srivastava, learned counsel for the State and perused the record.
The present criminal misc. application under Section 482 Cr.P.C. has been filed by the applicant Mukesh Chaudhari with the following prayers:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to quash impugned order dated 25.8.2022 as well as entire proceedings of Sessions Case No. 610/2022 (State vs. Mukesh Chaudhari), u/s 376, 504, 506, 452, 354A I.P.C. and u/s 3/4 Protection of Children from Sexual Offences (POCSO) Act, and u/s 3(2)5 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act arising out of Case Crime 188/2021, Police Station- Ahirauli Bazar, District Kushinagar, pending in the court of Special Judge POCSO Act, Court No. 1, Kushinagar at Padrauna And pending disposal of the instant application it is expedient in the interest of justice that further proceedings in the case before the trial court may be directed to remain stayed."
The facts of the case are that a First Information Report was lodged on 26.10.2021 as Case Crime No. 188 of 2021, under Sections 376, 504, 506 I.P.C. and Section 5, 6 POCSO Act and Section 3(2)V S.C./S.T. Act by the opposite party no. 4 against the applicant on the basis of an application moved under Section 156(3) Cr.P.C. alleging therein that she belongs to a down-trodden community. The applicant lives on the north side of her house who guards the fishes in the pond. He gave his mobile number to the daughter of the first informant which was torn and thrown by her. He used to call on the mobile of her husband many times and used to send objectionable messages. She made a complaint in the house of the accused due to which he was having enmity with her and used to threaten her. On 12.6.2021 at about 09.30 AM she went to the village to call her husband and her minor daughter aged about 13 years was alone in the house, after which getting an opportunity the applicant raped her and threatened her that if she discloses it to any one then he would murder them. Her daughter while crying told her to the entire incident when she came back to the house. She went to the police station and gave an information but the Pradhan of the village got a panchayat collected and forcibly by concealing the truth got the matter settled. On 4.7.2021 at about 8.00 PM when her minor daughter was at the tap filling water the accused outraged her modesty on which she raised a hue and cry after which Subodh and Ramsingar and others saw the incident and rescued her daughter due to which she was saved. The accused then used caste related words and threatened her and went away. She gave information to the police station but no action was taken. She sent an application through registered post to the Superintendent of Police but no action was taken. Thus she moves the application under Section 156 (3) Cr.P.C.
The victim was medically examined and her statement under Section 161 and 164 Cr.P.C. were recorded. Chief Medical Officer concerned vide his report dated 1.11.2021 opined her age to be about 16 years. The first informant and the other witnesses were also examined by the investigating officer. The accused did not join the investigation despite efforts by the police to arrest him. Non bailable warrants, process under Section 82/83 Cr.P.C. and attachment proceedings were also initiated. He even then did not appear and could not be arrested. Thus a charge sheet dated 24.7.2022 under Sections 376, 504, 506, 354Kha, 452 I.P.C., Section 3(2)V S.C./S.T. Act and 3/4 POCSO Act, has been submitted against the applicant as an absconder. The trial court took cognizance upon the same and has issued non bailable warrants against the applicant accused vide its order dated 25.8.2022.
Learned counsel for the applicant argued that the court concerned without adopting due procedure established by law and without applying its mind passed an order dated 23.7.2021 on an application dated 23.7.2021 under Section 156(3) Cr.P.C. filed by the opposite party no. 4. It is argued that the victim was brought before the doctor for medical examination but she refused her internal examination as is evident from the noting in the medical examination report dated 29.10.2021. It is argued that the opposite party no. 4 had earlier filed an application under Section 156(3) Cr.P.C. dated 23.7.2021 with regards to the same allegations which was numbered as Criminal Misc. Application No.296 of 2021, Reeta Devi vs. Mukesh, on which the court concerned passed an order dated 11.8.2021 directing the S.H.O. concerned of loding of an F.I.R. and investigating the same. The said order was never complied with for the reasons best known to the concerned officials. The opposite party no. 4 then moved another application dated 3.9.2021 under Section 156(3) Cr.P.C. on which a police report was summoned after which an order dated 14.9.2021 was passed directing the lodging of an F.I.R. and its investigation. In compliance of the said order dated 14.9.2021 the F.I.R. was thus lodged on 26.10.2021. Learned counsel argued that filing of the second application under Section 156(3) Cr.P.C. was not maintainable inasmuch as an order of registration of the first application moved under Section 156(3) Cr.P.C. was passed by the court concerned but the same was not complied by the authorities concerned for the reasons best known to them. It is argued that even on the test of sameness the allegations in both the applications under Section 156(3) Cr.P.C. would come out to be the same. It is argued that the proceedings thus as initiated against the applicant and the order summoning him are bad in the eyes of law and deserves to be quashed.
Per contra, learned counsel for the State vehemently opposed the prayer for quashing and argued that the present petition cannot be entertained inasmuch as the charge sheet in the present matter has been submitted against the applicant as an absconder. The applicant did not join the investigation in spite of hectic efforts by the police to arrest him and then even after securing non bailable warrants and process under Section 82/83 Cr.P.C. and lastly after attachment proceedings, he continued to abscond. It is argued that since the applicant had been evading the process of law, present petition cannot be entertained. It is argued that there is other circumstances against the applicant which would go to show that it was well within his knowledge that the present F.I.R. has been lodged against him as he had challenged the same before this Court in a Criminal Misc. Writ Petition No. 2002 of 2022, Mukesh Chaudhari vs. State of U.P. and 3 others, which was dismissed vide order dated 8.3.2022. The said order has been produced before the Court which is extracted herein below:-
"Heard learned counsel for the petitioner and learned AGA for the State.
This writ petition seeks quashing of the First Information Report dated 26.10.2021 giving rise the Case Crime No. 188 of 2021, under Sections 376, 504, 506 IPC, and Section 5 and 6 of the Prevention of Children from Sexual Offence Act, 2012 and 3 (2) (V) Scheduled Caste/ Scheduled Tribe (Prevention of Atrocities Act) 1989, (Amendment 2015), Police Station Ahirauli Bazar, District Kushinagar.
After hearing counsel for the petitioner as also learned AGA, we find that the allegations in the FIR constitute a cognizable offence.
Under the circumstances, the impugned FIR cannot be quashed. This writ petition is dismissed, however without prejudice to the right of the petitioners to apply for bail/ anticipatory bail."
It is argued that the F.I.R. was lodged on 26.10.2021 after which the applicant challenged the said F.I.R. in a writ petition before this Court which was rejected on 8.3.2022 and even after rejection of the same, he kept on absconding for four months and thus charge sheet was submitted against him as an absconder on 24.7.2022. It is argued that lodging of the F.I.R. and the investigation was well within the knowledge of the applicant and the applicant clearly and willfully evaded the process of law and as such is not entitled for any relief by this Court and the petition thus deserves to be dismissed.
After having heard learned counsels for the applicants and perusing the records, it is evident that the applicant is the accused in the case under Sections 376, 504, 506, 354Kha, 452 I.P.C., Section 3(2)V S.C./S.T. Act and 3/4 POCSO Act. The FIR was lodged against him on 26.10.2021 after which he challenged the same before this Court in Criminal Misc. Writ Petition No. 2002 of 2022, Mukesh Chaudhari vs. State of U.P. and 3 others, which was dismissed vide order dated 8.3.2022 passed by a Division Bench of this Court. The applicant after that absconded and did not join for investigation and make himself available for investigation. The police undertook the process of non bailable warrants, process under Section 82/83 Cr.P.C. and even attachment of property of the applicant. The applicant still kept on absconding and did not appear and join the investigation. Subsequently a charge sheet dated 24.7.2022 was submitted against him as an absconder on which the trial court vide order dated 25.8.2022 took cognizance and has issued non bailable warrants against him.
In so far as the merits of the case are concerned, the applicant is the sole accused named in the F.I.R. and there are allegations against him. Prima facie offence is disclosed against him. This Court looking to the facts and circumstances of the case does not find it to be a fit case for granting any indulgence to the applicant.
The present application is thus devoid of any merit and is dismissed.
(Samit Gopal,J.) Order Date :- 4.4.2023 {Naresh}