Allahabad High Court
Lallan @ Lallan Prasad And Another vs State Of U.P. And Another on 28 August, 2023
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:172540 Order reserved on 10.08.2023. Order delivered on 28.08.2023. Court No. - 86 Case :- APPLICATION U/S 482 No. - 40688 of 2022 Applicant :- Lallan @ Lallan Prasad And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravish Chandra Srivastava,Vijay Kumar Ojha Counsel for Opposite Party :- G.A.,Kuldeep Singh,Vipin Vinod Hon'ble Rajiv Gupta,J.
1. Heard learned counsel for the applicants, learned AGA for the State, Shri Kuldeep Singh, learned counsel for the opposite party no.2 and perused the record.
2. This application under Section 482 CrPC has been filed with the prayer to quash the charge-sheet dated 30.11.2021 and cognizance order dated 02.09.2022 as well as entire proceedings of Criminal Case No. 198541 of 2022 (State Vs. Basant and Others), arising out of Case Crime No. 0075 of 2021, under Sections 147/148, 323, 504, 506, 354-B IPC, Police Station Rohaniya, District Varanasi, pending in the court of Special Chief Judicial Magistrate, Varanasi.
3. Brief facts giving rise to this application are that an FIR was lodged by opposite party no.2, which was registered vide Case Crime No. 75 of 2021, under Sections 147, 148, 323, 504, 506, 354-B IPC, Police Station Rohaniya, District Varanasi. The allegations unfurled in the FIR are that there is a dispute between the parties with regard to the land being Khata No. 53 consisting of Arazi No.7 admeasuring area 81 decimal, Arazi No.113 admeasuring area 31 decimal, Arazi No.115 admeasuring area 48 decimal, Arazi No.117 admeauring area 52 decimal, Arazi No.123 admeasuring area 48 decimal, Arazi No.158 admeasuring area 40 decimal, Arazi No.167/2 admeauring area 47 decimal, Arazi No.179/1 admeasuring area 35 decimal, Arazi No. 187 admeasuring area 26 decimal, Arazi No.196/2 admeasuring area 48 decimal, Arazi No.248 admeasuring are 4 decimal, Arazi No.250 admeasuring area 4 decimal, Arazi No.258/2 admeasuring area 22 decimal, Arazi No. 265/2 admeasuring area 32 decimal, Arazi No.26 admeasuring area 9 decimal, Arazi No.271 admeasuring area 55 decimal, Arazi No.280 admeasuring area 18 decimal, Arazi No.293 admeasuring area 19 decimal, Arazi No.304 admeasuring area 34 decimal, Arazi No.396 admeasuring area 19 decimal, total 22 gates admeasuring area 7 Acre 80 decimal situated at Mauja Saghat, Pargana Dehat Amanat, Tehsil and District Varanasi, out of which, a registered sale deed of area of 6 Acre 80 decimal has been executed, regarding which, a Writ-B No.2469 of 2019 (Mittu and Others Vs. D.D.C., Varanasi and Others) is also pending before this Court.
4. It is alleged that pursuant to the order dated 08.06.2016 passed by Consolidation Officer-1st, Varanasi, no change of possession of the disputed land could take place. On 13.11.2020, the applicants during night hours forcibly tried to plough the said land. The information in respect of which was given to the Police Station Rohaniya, District Varanasi, however, the police did not take any action.
5. It is further alleged in the FIR that on 18.11.2020 at about 11:00 AM, the applicants along with 14 other persons formed an unlawful assembly and forcibly started ploughing the said land by an unnumbered tractor. The first informant along with his family members reached at the place of the incident and objected against the illegal action of the applicants, on which, Vijay Kumar exhorted that he along with his son Anand is employed in the Electricity Department and has amassed huge wealth and let none of the ladies or male members be spared and assaulted. Whatever money would be expended, they will arrange for it. The police administration would also be purchased. After the said exhortation, Vijay Kumar along with other nominated accused persons started mercilessly assaulting the opposite party no.2, his son Ratan Kumar, nephew Krishna Ranjan Patel and sister-in-law (Bhabhi) Neelam Devi by lathi, danda and iron rod after hurling abuses.
6. It is further alleged that when the opposite party no.2 and his family members tried to escape to save their lives, the applicants surrounded them and with an intention to kill them, tried to run over the tractor upon them.
7. It is further alleged that Lallan (applicant) and Basant and his brothers caught hold of the victim Neelam and tried to molest her and disrobe her by tearing apart her clothes, when the victim raised alarm to rescue her, then Lallan and Basant exhorted to kill her inserting a danda in her private part.
8. It is further alleged that first informant and his family members raised alarm to rescue them, on which, number of persons and family members reached there. Consequent thereto, the applicants by flourishing sharp edged weapon and one Sandeep Kumar armed with country-made pistol opened fire aiming opposite party no.2 and tried to run away. On account of assault made by the applicants, Ratan Kumar, Krishna Ranjan Patel and Neelam Devi received serious injuries and have been medically examined. The opposite party no.2 tried to lodge the FIR, however, the police did not register his FIR and as such, an application dated 20.11.2020 was moved before the Senior Superintendent of Police, Varanasi with the prayer to get his FIR registered, however, his FIR was still not registered and as such, an application under Section 156(3) CrPC was filed by the opposite party no.2 before the learned Magistrate with the prayer to get his FIR registered and only after orders passed by the learned Magistrate, his FIR was registered against the applicants.
9. After registration of the FIR, the police recorded the statements of the witnesses including the injured witnesses and injury reports of the victims were handed over to the police. As per the injury reports, Subhash Prasad (opposite party no.2), Ratan Kumar, Krishna Ranjan Patel and Neelam Devi have suffered injuries on their persons. Injury sustained by Krishan Ranjan Patel was referred for X-Ray.
10. The police, after concluding the investigation, submitted the charge-sheet on 30.11.2021 under Sections 323, 504, 506 and 354-B IPC only against four accused persons and offences under Sections 147, 148 IPC were dropped.
11. On the basis of the said charge-sheet, learned Magistrate, vide order dated 02.09.2022, has taken cognizance and summoned the applicants to face trial, however, despite lapse of about a year, the applicants had not appeared before the court below and has filed present application under Section 482 CrPC challenging the entire proceedings of the criminal case based on the charge-sheet dated 30.11.2021 and the summoning order dated 02.09.2022.
12. Learned counsel for the applicants has submitted that there is a dispute between the parties over possession of the land in question, which has been succinctly described in the FIR and long drawn consolidation proceedings has been going-on between the parties and the dispute between them is still subjudice before this Court in Writ-B No. 2469 of 2019 (Mittu and Others Vs. D.D.C., Varanasi and Others). In the backdrop of the said circumstances, the opposite party no.2 has lodged the FIR by cooking up and concocting false story of assault and molestation of his sister-in-law Neelam, causing injuries to himself, son Ratan Kumar, nephew Krishan Ranjan Patel and sister-in-law Neelam Devi, with malicious intention just to drag them in criminal court.
13. Learned counsel for the applicants has further submitted that the injuries sustained by four injured persons are fake and manipulated by them just to give colour to the whole incident.
14. Learned counsel for the applicants has further submitted that even taking the entire allegations made in the FIR as well as statements of the witnesses recorded under Sections 161 and 164 CrPC, no offence under Section 354-B IPC is made out against the applicants.
15. Learned counsel for the applicants has further submitted that the applicants are in possession of the land in question and no such incident, as alleged in the FIR, has in fact taken place. The police, without thoroughly investigating the matter, has illegally submitted the charge-sheet against the applicants and the learned Magistrate has illegally taken cognizance of the said offences and as such, the entire proceedings is liable to be quashed being false, mischievous and malicious and the same has been initiated with an intention to spite them just to wreak vengeance, as such, the entire proceedings based on the charge-sheet is liable to be quashed.
16. In order to buttress his arguments, Learned counsel for the applicants has relied upon the decision reported in 2021 2 AIR (SC) 1, Arnab Manoranjan Goswami Vs. State of Maharashtra.
17. Per contra, learned AGA as well as learned counsel for the opposite party no.2 has submitted that the dispute regarding possession of the land between the parties is still subjudice before this Court in Writ-B No. 2469 of 2019 (Mittu and Others Vs. D.D.C., Varanasi and Others), however, the applicants, who are highly influential persons, with an intention to grab the disputed land, forcibly entered therein by forming an unlawful assembly and tried to plough the said land by an unnumbered tractor and on raising objection by the opposite party no.2, they had assaulted the victims by lathi, danda and iron rod and further, with an intention to kill the first informant-opposite party no.2 firing was resorted to by a country-made pistol.
18. Learned counsel for the opposite party no.2 has further submitted that highhandedness of the applicants is also evident from the facts that despite four persons including a lady Neelam, who admittedly have received injuries on their persons and have been medically examined, the police, under the influence of the applicants, on being approached, did not register the FIR. Further, when the opposite party no.2 moved an application before the Senior Superintendent of Police, Varanasi to get his FIR registered, no action was taken by the Police authorities, including the S.S.P. Varanasi and only after an application under Section 156(3) CrPC was allowed by learned Magistrate, the instant FIR has been lodged, which itself shows the undue influence of the applicants and their highhandedness.
19. Learned counsel for the opposite party no.2 has further submitted that though specific allegation of forming an unlawful assembly with an intention to commit the incident of assault and outraging the modesty of the victim and making an attempt to kill the opposite party no.2, has been made against the applicants and 14 others, the police, in collusion with the applicants, submitted the charge-sheet only against four accused persons and thus dropped the offence under Section 147, 148 IPC against the applicants and other nominated accused.
20. Learned counsel for the opposite party no.2 has further submitted that the victims after receiving injuries have been medically examined by Dr. Virendra Kumar and their injuries forms part of the record and from bare perusal of the said injury report, by no stretch of imagination, it can be said that the said injuries are fake or manipulated.
21. Learned counsel for the opposite party no.2 has further submitted that from the allegations made in the FIR as well as statements of the witnesses recorded during the course of investigation and looking to the injuries of four victims, prima facie offence, complained of, is clearly made out against the applicants.
22. Learned counsel for the opposite party no.2 has further submitted that opposite party no.2 in the FIR as well as the injured witnesses in their statements have categorically stated that the applicants, particularly, Lallan, Basant his brothers caught hold of the victim Neelam and molested her and tried to disrobe her and when the victim Neelam raised alarm, then Lallan and Basant exhorted to kill her by inserting a danda in her private part. Thus, from the said allegations, prima facie offence under Section 354-B IPC is clearly disclosed against the applicants. The contrary assertions made by learned counsel for the applicants is wholly unsustainable and is liable to be discarded. The injury sustained by the victims clearly establishes the incident against the applicants, in which, they have taken active role by forming an unlawful assembly.
23. Learned counsel for the opposite party no.2 has next submitted that the applicants, in a highhanded manner, had committed the instant incident with an intention to kill the victims and molesting and outraging the modesty of the lady Neelam by disrobing her, for which, ample material has been collected by the Investigating Officer.
24. Learned counsel for the opposite party no.2 has further submitted that at this stage, only a prima facie case is to be seen and the Court is not required to marshal the entire material and evidence available on record and to make a roving enquiry. The charge-sheet against the applicants has been filed on 30.11.2021, however, despite lapse of one and a half year, the applicants had not yet appeared before the court below and has filed the instant application under Section 482 CrPC for quashing the entire proceedings without there being any merit in it. The impugned order dated 02.09.2022 taking cognizance against the applicants based on the charge-sheet is just, proper and legal and do not call for any interference by this Court.
25. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the allegations made in the FIR and statements of the witnesses recorded under Section 161 CrPC as well as injury reports of four victims, prima facie offence, complained of, is clearly made out against the applicants. The injury reports of four victims available on record can not at this stage be said to be manipulated and fake. Admittedly, at this stage only a prima facie case is to be seen and this Court is not supposed to hold a mini trial.
26. Furthermore, the contention of learned counsel for the applicants that the said proceedings are malicious and instituted with an intention to spite the applicants and to wreak vengeance can not be determined at this stage.
27. Recently, the Hon?ble Apex Court in Criminal Appeal Nos. 1025-1026 of 2023 (Central Bureau of Investigation Vs. Aryan Singh and Others) has categorically held that whether the criminal proceedings was/ were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of investigation, which warranted the accused to be tried.
28. Moreover, all the submissions made by learned counsel for the applicants at the Bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
29. It is well neigh settled that the exercise of inherent powers of the High Court under Section 482 CrPC is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the complaint/ FIR/ charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.
30. It has been further held that the criminal proceedings can not be nipped in the bud at this stage. Thus, it is trite law that at the stage of quashing, only the material of the prosecution has to be seen and the court can not delve into the defence of the accused and then proceed to examine the matter on its merits by weighing the evidence so produced. Evidence needs to be led to substantiate the defence of the accused.
31. The case law cited by learned counsel for the applicants is clearly distinguishable on facts.
32. In view of foregoing discussions and looking to the facts of the case, prima facie allegation against the applicants and the law as stated above, I am of the considered opinion that no case for interference at this stage is made out.
33. The present application under Section 482 CrPC is devoid of merits and is accordingly dismissed.
Order Date :- 28.8.2023 Nadim