Allahabad High Court
Mithun Kumar Nishad vs State Of U.P. & Anr. on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2748
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 14 Case :- U/S 482/378/407 No. - 7406 of 2019 Applicant :- Mithun Kumar Nishad Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Dhananjai Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
The application in hand is moved under section 482 of Criminal procedure code, 1973 by learned counsel Sri Dhananjai Kumar Tripathi on behalf of applicant accused involved in case crime no 1312 of 2017 registered under Section 354(Ka)(Ga) I.P.C. and Section 3(1)(xi) of SC/ST Act (which shall hereinafter be addressed as SC/ST Act), Police Station Risia District- Bahraich. The applicant seeks following reliefs, praying to:-
"WHEREFORE, it is most humbly prayed that this Hon'ble Court may kindly be pleased to quash the impugned charge sheet (Police Report) bearing No.63 of 2017, dated 02.11.2017, vide case crime No.1312 of 2017, under Section - 354(Ka)(Ga) IPC and Section 3(1)(xi) at Police Station Risia, District Bahraich and the order of cognizance and summoning order dated 24.11.2017 as well as non bailable warrant dated 05.07.2018, passed by learned Special Judge SC/ST Act, Bahraich, in Special Criminal Case No.261 of 2017. In Re:- "State Versus Mithun Kumar" and further proceedings of the case in pursuance thereof, in the ends of justice."
The grounds upon which the relief to quash the charge-sheet as pleaded in the application are-
(i) That petitioner is quite innocent, he has committed no offence as alleged in the impugned first information report and he has been falsely implicated in the alleged offence by the complainant/opposite party no.2 due to enmity.
(ii) That no offence under Section - 354(Ka)(Ga) I.P.C. and Section 3(1)(xi) SC/ST is made out against the applicant.
(iii) applicant is a law abiding and peace loving person.
(iv) no summon whatsoever has ever been served upon the petitioner till date.
Heard the learned counsel for the applicant and the Learned A.G.A. appearing on behalf of the state opposite parties. Perused the materials available on record.
Before entering into merit of the case it would be relevant to keep into mind the scope and ambit of section 482 of Criminal Procedure Code and circumstances under which the extra ordinary power of the court inherent therein as provisioned in the said Section of the Criminal Procedure Code can be exercised. It is explained in a plethora of judgement of the Honorable Apex Court. One of those judgement is Inder Mohan Goswami v. State of Uttaranchal (2007)12 SCC 1, para 23 is quoted here under:-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice"
On bare reading of F.I.R., it reveals that applicant belonging to upper caste at about 4:00 p.m. when informant was taking bath in her house peeping her through a hole in the bathing place from the wall of his house. When a girl belonging to scheduled caste, the informant protested the applicant came at the bathing place and caught hold her and told her daringly, earlier I was peeping you but now will see directly standing in front of you. Simultaneously he vegan to tease her by touch on her private parts doing indecent activities. He insisted to marry with him, threatening to make viral some pornographic photos of the informant prepared by him. When the informant made noise, the applicant-accused fled away threatening to forcibly marry her. Thereafter the informant immediately approached to the police station. FIR was not lodged. The incident is of 26 of May, 2017. They sent the information to S.P., Bahraich through Registered Post on 29.5.2017 but FIR could be lodged only on order of Magistrate passed under Section 156 (3) of the Criminal Procedure Code. The correlative Section under Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act as amended up to date dealing with punishment for shown offences committed under Indian Penal Code against a member of Scheduled Caste runs as under:-
"3(1)(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;"
From the allegations in the FIR, it is very clear that allegations made therein even if on their face value be taken to be true in their entirety, they disclose the commission of offence from which the accused applicant is slapped as they fulfill the ingredients of Section 354(Ka)(Ga) of the I.P.C., which runs as under:-
354A. Sexual harassment and punishment for sexual harassment-
(1) A man committing any of the following acts?
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
354C. Voyeurism-
Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanations-
(1) For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
(2) Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section."
This is pertinent to mention here that charge sheet after due investigation has been filed in the court, the court has taken cognizance and consequent thereupon issued summons to the applicant accused.
In para 102 of the State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604, Hon'ble Supreme Court has illustrated several circumstances wherein the extraordinary power under Section 482 of Criminal Procedure Code maybe exercised for the purpose of preventing an abuse of process or to secure the ends of Justice or to enforce the order of the court. Illustrations given in para 102 quoted hereunder are treated as guidelines for the purpose of exercising of powers under section 482 of Criminal Procedure Code:-
"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
On perusal of the FIR allegations in the light of the provisions under Section 354A and 354C that the activities of the applicant accused as alleged fulfill the ingredients of the aforesaid Sections of IPC which prima facie shows the act of outraging the modesty of a women or to cause her dishonored trying to sexual exploit her. SC/ST Act also provides that if a person other than scheduled caste and schedule tribe use force to any women belonging to scheduled caste and scheduled tribe with intention to dishonor or outrage her modesty is said to have committed an offence under the SC/ST Act. As such prima facie there are sufficient material on record in the shape of charge sheet whereupon the Magistrate took cognizance of the offence and issued summons to the applicant-accused.
The offence as prima facie appears to have been committed on perusal of FIR and from materials collected by police, does not fall within the ambit of any of the illustration given in the decision of Apex Court.
In para 27 of the Inder Mohan Goswami (Supra), Hon'ble Supreme Court has held as under:-
"The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
When there is no prima facie case as to the abuse of process on the basis whereof the charge sheet and the order of the Magistrate taking cognizance be quash, the another ground taken by the applicant accused that the summons was not issued to him after cognizance is baseless from the perusal of the order of Magistrate of taking cognizance. Moreover, if the accused have knowledge of the pendency of criminal proceeding against him and approaches to the High Court for the quashing of charge sheet and summoning order then he cannot be said unaware of the pendency for reason of service of summons. If the allegations as non service of summons is taken as true then also merely because of that the FIR and the charge sheet which are found legal and without any error cannot be quashed. So far as the ground as to the infringing a personal liberty is concerned, the applicant accused when knows about the process issued by the court against him for his appearance it is not good on his part of disobey the process of not appearing their and approaching the High Court for quashing the charge sheet and cognizance order. The purpose of issuing process like summons, despite service on defying by the accused on appear, issuing bailable warrant and when that is different defying by not appearing before the Court when issuing non bailable warrant. All are aimed only to procure and ensure the attendance of applicant accused in court.
In the present case a legitimate prosecution is pending against the accused, therefore, quashing of charge sheet or the order of Magistrate taking cognizance there on would not be liable to be quashed exercising power under Section 482 of Criminal Procedure Code.
The accused applicant though not pleaded in their application but argued that in the alternative, if the case is not made out with regard to the abuse of process or in any other ground of Section 482 Cr.P.C. then benefit of interim stay of the arrest be given in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. With regard to the law laid down in the above decisions of our own High Court and affirmed by Hon'ble Supreme Court, it would be pertinent that the direction contained therein as to grant of interim bail or interim stay of arrest, was issued when Section 438 of the Criminal Procedure Code was not applicable in State of U.P. Now the said provision of Cr.P.C. for granting anticipatory bail is made applicable to the State of U.P. also.
Since, the matter is of an offence under SC/ST Act and same is found prima facie established, the question is whether the accused may be given order of grant of interim protection to him form arrest. Section 18 of the SC/ST Act provides as under:-
"18. Section 438 of the Code not to apply to persons committing an offence under the Act.?Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."
In Vilas Pawar v. State of Maharashtra, (2012) 8 SCC 795 : 3 SCC (Cri) 1062, the nature and scope of Section 18 of the SC/ST Act is held as under:-
"Nature and scope- Section 18 of the SC/ST Act creates a bar for invoking Section 438 Cr.P.C. However, a duty is cast on the court to verify the avernments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST act has been prima facie made out. In other words, if there is a specific avernment in the complaint, namely insult or intimidation with intent to humiliate by calling with caste, name the accused persons are not entitled to anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out, Vilas Pawar v. State of Maharashtra, (2012) 8 SCC 795 : 3 SCC (Cri) 1062."
In the present case from the FIR allegations the offence under Section 3(1)(xi) SC/ST Act as amended on 18.6.2019 is found prima facie constituting the offence where the court has taken cognizance and issued process for trial to the accused applicant, if he failed to appear or intentionally defied the process, whatsoever may be arresting the stay in the meantime prior to the date the accused appears/surrenders and applies for the bail shall not be permissible as the same would be dilution of the express prohibition made under Section 18 of the SC/ST Act.
The petition being not tenable and baseless and accordingly dismissed.
Order Date :- 18.10.2019/Gaurav/-