Allahabad High Court
Smt. Pinki Gautam @ Geeta Devi And ... vs State Of U.P. And Another on 12 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 90 Case :- APPLICATION U/S 482 No. - 23730 of 2022 Applicant :- Smt. Pinki Gautam @ Geeta Devi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Onkar Nath Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
Heard learned counsel for the applicants and learned AGA for the State and perused the record.
The present 482 Cr.P.C. application has been filed to quash the order dated 28.3.2018 passed by the Judicial Magistrate Etah rejecting the Discharge Application filed by the applicants in Criminal Case No.3125 of 2016 (State vs. Geeta Devi and another) arising out of Case Crime No.0063 of 2015, under Sections 419, 420, 467, 468 I.P.C., P.S. Naya Gaon, District Etah, pending before the Additional Civil Judge, Court No. 26 and also quash the revisional order dated 22.6.2022, passed by the Additional Session Judge, Court No.1, Etah, in Criminal Revision No.64 of 2018, Smt. Geeta @ Pinki and another vs. State of U.P. and another, on grounds taken in affidavit accompanied with the petition.
Learned counsel for the applicants submitted that in present case false and fabricated first information report was lodged against the applicants. The applicants filed Criminal Misc. Writ Petition No.18182 of 2015 before this Court for quashing the FIR dated 16.7.2015 and the same was disposed of on 30.7.2015, in which this Court had granted stay order in favour of the applicants till submission of charge-sheet. The investigation was done by the Investigating Officer in perfunctory manner and charge-sheet was submitted illegally against the applicants. After filing of charge-sheet, the applicants again filed an application Under Section 482 No. 24597 of 2016, which was disposed of on 17.8.2016 with observation that Court below shall proceed in the light of judgment dated 8.7.2016 passed in Criminal Misc. Writ Petition No. 15609 of 2016 (Brahm Singh 2 others vs. Sate of U.P. and 2 others). The applicants filed a discharge application under Section 239, 227 Cr.P.C. before the Chief Judicial Magistrate, stating therein that Pinki Gautam and Geeta Devi are same person and in support of this contention, the applicants have submitted 24 documents but learned Chief Judicial Magistrate concerned illegally rejected the discharge application without giving any finding, on assumption that charge-sheet has been submitted on 1.7.2016 and the applicants have not appeared before the Court ill date whereas applicants were already appeared before the court concerned through their counsel. The applicants had filed a criminal revision before court of session against the order of learned Magistrate rejecting their discharge application. However, the said criminal revision has also been dismissed vide order dated 22.6.2022 by Additional Session Judge, Court No.1, Etah. No case is made out against the applicants under Section 419, 420, 467, 468 I.P.C. on the basis that applicant No.1 is still working as Anganbadi Worker, posted in village Nagla Mai, Village Panchayat Ubhai Asad Nagar, Block Aliganj, District Etah. Applicants are innocent and falsely implicated in the case.
In the present case, no role has been assigned to accused-applicant No.2, who is husband of applicant No.1. An enquiry was conducted by District Programming Officer, Etah about applicant No.1, in which it was found that opposite party No.2 has filed false complaint against applicant No.1, prompted by ulterior motive and in that enquiry it has also been found that Pinki and Geeta are same person and complaint of opposite party No.2 was rejected. A copy of enquiry report is filed with the affidavit in the present case. Applicant No.1 had never taken admission in D.A.V. Inter College, Aligarh and her school leaving Certificate of that school is a fake document, fabricated by opposite party No.2 in the name of Geeta Kumari, in which date of birth of applicant No.1 is 7.3.1982. Father of applicant No.1 also submitted affidavit before S.S.P., Etah, wherein he has stated that he is blessed with three sons namely, Anoop, Amit Kumar, Abhishek and three daughters namely, Pinki Gautam @ Geeta, Rinki and Rashmi. District Programming Officer, Etah has reported to District Magistrate, Etah by letter dated 28.12.2015 that the domestic name of Smt. Pinki Gautam is Geeta, who has not filed academic documents of her younger siblings Rinki and Rashmi and she was duly selected as Anganbadi worker on the basis of seniority.
On the basis of first information report and material placed on record, factual matrix of the prosecution case is that informant Ajit Pratap Singh lodged FIR with police station concerned on 16.5.2015 on the basis of written report stating therein that her co-villager Geeta Devi had married with Ashok Kumar after elopment with him without knowledge of her father and her father had lodged an FIR in the matter. In the course of time, case was compromised and Ashok Kumar purchased a plot of area 5 bigha in the year 1997 in the name of Geeta Devi and three children born out of the wedlock. In primary school Nagla, the name of mother of elder daughter of Geeta Devi is entered as Smt. Geeta Devi and Gram Panchayat Namawali-2009 and Parivar Register also her name is entered as Smt. Geeta Devi. She has received education from D.A.V. Inter College, Aligarh up to Class IIX and was selected as Anganwadi Worker in the 2009 and therefore, she projected herself as Pinki Gautam whereas there are only two daughters of Sadhuram i.e. Geeta Devi and Pinki Devi. Husband of Pinki is in military service. Geeta Devi has also changed her name as Pinki Devi in Voter ID Card and in this way, she procured the service of Anganbadi worker by presenting herself as Pinki Devi.
Learned A.G.A. submitted that the accused-applicants have not appeared before the court concerned in person. They have moved discharge application before the trial court without surrender and moving bail application and they are still not bailed out. The discharge application cannot be moved by applicants in a serious offence like present one without appearing before the Court and seeking bail. There is no direction of superior Court in this respect that they could move discharge application through counsel. The role of applicant No.2- husband of applicant No.1 is that of facilitator and assisted applicant No.1 in the present case of cheating and forgery. This fact has been stated in the impugned order of revisional court that the accused applicants have moved discharge application without appearing before the court.
In the present case, the identity of Geeta Devi and Pinki Gautam is in question. According to the prosecution case version, both are different persons whereas the accused persons tried to established that both are same person and they have placed reliance on the report of District Programming Officer, Etah under whom applicant No.1- Smt. Pinki Gautam wife of Ashok Kumar was working. In sale deed executed by accused applicants in favour of Prateek Kumar dated 8.10.2012, the name of vendor No.2 is mentioned as Geeta Kumari @ Pinki, wife of Ashok Kumar. An FIR at the instance of Pinki Gautam @ Geeta was lodged against the Ajeet Pratap and another unknown, on 16.5.2015 under Sections 332, 353, 354, 504, 506 I.P.C. & 3(I)(XI) of SC/ST Act and the present FIR is said to be counter blast of that FIR. In copy of family register of Sadhuram, name of his three daughters Geeta @ Pinki, Rinki and Rashmi is mentioned.
Hon'ble Supreme Court has again discussed the scope of 227 and 228 Cr.P.C. in Sunil Kumar Jha and Others Vs. State of Bihar in Crl. Misc. Case No. 22050 of 1996 decided on 5.2.1997. Para 6 is herein under:-
"From bare perusal and comparison of the aforesaid two provisions it appears that while in the case of discharge of an accused under Section 227 of the Code it is obligatory for the Judge to record his reasons for doing so. But while framing charge under Section 228 of the Code the provision does not say in a very specific word that the Court msut record reasons. Nevertheless Section 228 provides that while framing charge, the Court must be of the opinion that there is ground for presuming that the accused has committed an offence. In other words, there must be valid reasons and foundation for framing an opinion that the accused has committed an offence."
The case decided by Allahabad High Court in Smt. Kalawati Vs. State of U.P. decided on 11.7.1990 passed in Crl. Revision No. 1012 of 1990 wherein it has been held that though the full statements of the witnesses need not be discussed but prima facie case should be briefly indicated. Para 3 is herein under :
"It is true that for determining prima facie case court need not weigh or sift the evidence or make roving enquiry. It need not give full statements of the witnesses. Evidently for a judicial speaking order it is necessary that the evidence constituting prima facie case should be briefly indicated and should not be substituted by vague words or by conclusion alone."
On perusal of impugned order of learned Magistrate, it appears that the prima facie case has been made out for framing of charge. This fact has been cited in discharge application that arrest of the accused persons was stayed by Hon'ble High court till filing of chargesheet. They have not appeared in the court in person. The learned Revisional Court in revision has passed an elaborate order in which the case of both sides have been discussed and Session Judge also passed a judicial speaking order citing the evidence constituting prima facie case against the applicants for framing of charge. He has passed a speaking order while rejecting the revision filed by the accused applicants and dismissing the documentary evidence filed in support of prosecution case alongwith case diary and has observed that it is evident that Geeta Devi and Pinki Gautam are different women. As there are two versions of same question, the matter is liable to be tried as only on the basis of evidence recorded during trial, this disputed question can be finally settled that whether Geeta Devi and Pinki Gautam are same woman or different. The accused-applicants have filed some documentary evidence in support of their version that both are same person. It appears that these documents are not part of investigation or case diary and in this connection the law laid down by Supreme Court in the case of State of Orisa Vs. Devendra Nath Padhi, 2003 Vol. II SCC 711 Paragarah 11, although this judgment relates to Prevention of Corruption Act and not applicable although paragraphs No.11 of the said judgment of quoted below:-
Para11:" From the above judgments referred to by the learned counsel for the appellant, it is clear that all the court has to do a the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the material placed before it by the investigating agency. There is no requirement in law that the court at that stage should either give an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produced at that stage".
In Amit Kapoor vs Ramesh Chandra and Another, (2012) 9 SCC 460, Hon'ble Apex Court had discussed the extent of scop of power exercisable by High Court under Section 397 independently or read with Section 482 of the Code of Criminal Procedure, 1973 and held that framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the ?record of the case? and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
In Union of India Vs. Praful Kumar Samal, reported in 1979 (3) SCC 4 Hon'ble Apex Court had held that by and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
Keeping in view the facts and circumstances of the case and the law laid down in above cites cases, this Court is of the considered opinion that the courts below have not committed illegality by rejecting discharge application of accused-applicants as while considering discharge application the courts below are not expected to go through the documents placed before it in support of their case forming not a part of police report.
It is well settled law that disputed law of facts cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of accused cannot be considered at this stage.
The prayer for quashing the entire proceeding of the aforesaid case is refused.
Accordingly, the present application is disposed of and trial court is required to frame charges against the accused-applicants in appropriate sections which are made out on the basis of material place on record.
As the accused-applicants are admittedly not enlarged on bail, it is directed that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by Apex Court in the cases of Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773 and Brahm Singh and others vs. State of UP and others, 2016 (95) ACC 950.
For a period of 30 days, no coercive measure shall be taken against the applicants in the aforesaid case.
Order Date :- 12.9.2022 Kamarjahan