Allahabad High Court
Kuldeep And Another vs State Of U.P. And Another on 22 July, 2020
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- APPLICATION U/S 482 No. - 10162 of 2020 Applicant :- Kuldeep And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Tapan Kumar Mishra,Deepak Rana Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Heard Sri Deepak Rana, learned counsel for the applicants through video conferencing and Sri Sanjay Singh, learned AGA for the State and perused the record.
The present application under section 482 Cr.P.C. has been filed by the applicants for quashing the entire proceedings including the summoning order dated 3.08.2019 passed in Complaint Case No. 3004 of 2016 (Begraj Vs. Kuldeep and others) under Section 376 IPC, P.S. Binoli, District Baghpat pending in the Court of Civil Judge, S.D. (Fast Track Court)/ Additional Chief Judicial Magistrarte, Baghpat.
Learned counsel for the applicants argued that the order impugned dated 3.08.2019, copy of which is annexed as annexure 18 to the affidavit is an illegal order as the mandatory provisions of Section 204(2) Cr.P.C. and Section 204(4) Cr.P.C. have not been complied with. It is argued that without following the mandatory provisions of law, the complaint could not have been proceeded with and was liable to be dismissed. Learned Magistrate has not applied his judicial mind and as such the same is liable to be set aside.
It is further argued that no offence is made out under Section 376 IPC against the applicants. While further elaborating the argument learned counsel argued that after the summoning order dated 03.08.2019 was passed neither the process fees has been deposited by the opposite party no. 2 with the court below nor the list of witnesses has been supplied by him as such the summons should not have been issued against the applicants but even then contrary to the provisions of law, the Court issued summons illegally to the applicants. Learned counsel has drawn attention of the Court to paragraphs 25, 26, 27, 29, 30 and 31 of the affidavit in support of 482 Cr.P.C. Application. The learned counsel for the applicants has relied on the following cases:-
i) Criminal Misc. Application U/s 482 No. 842 of 2011 (Mohd. Tahir and others Vs. State of Uttarakhand and another), order dated 24.06.2013 (Uttarakhand High Court).
ii) Rajaram Vs. Sundram and others : 1995 Cri LJ 3418 (Madras High Court) in support of his argument specifically relating non-compliance of Section 204(2) Cr.P.C. and 204(4) Cr.P.C. Learned counsel thus argued that the summoning order dated 3.08.2019 is bad in law and deserves to be quashed.
Per contra, learned AGA vehemently opposed the present petition and argued that the entire argument of the learned counsel for the applicants is without any substance and has no legs to stand.
A First Information Report was lodged on 06.08.2008 by Vegraj which was registered as Case Crime No. 336 of 2008 under Section 376, 323 IPC, P.S. Binoli, District Baghpat against the applicants.
In the said matter, his daughter is the prosecutrix/victim who as per the First Information Report was aged about 14 years. Subsequently, the medical examination of the victim was conducted and a supplementary medical examination report was also given by the doctor. So far as the question of age is concerned, the Chief Medical Officer, Baghpat vide his certificate dated 14.08.2008, copy of which is annexed as annexure 3 to the affidavit opined that the victim is aged about 18 years. The police completed the investigation and submitted a Final Report No. 56 of 2008 dated 02.09.2008, copy of which is annexed as anexure no. 5 to the affidavit. Against the final report a protest petition dated 15.09.2008 was filed by the first informant, copy of which is annexed as annexure no. 6 to the affidavit. Subsequently, the first informant of the said case filed complaint dated 17.11.2008 under Section 376 IPC against the applicants in the Court of Additional Chief Judicial Magistrate, Baghpat. On 17.11.2008 it was ordered to be registered and statement under Section 200 Cr.P.C. was directed to be recorded. Subsequently, the statement of the complainant was recorded under Section 200 Cr.P.C. on 17.11.2008, copy of which is annexed as annexure 8 to the affidavit. Further in the said complaint case, the statements under Section 202 Cr.P.C. of Km. Sonia/victim, Syoraj the brother of the complainant, Ompal and Dr. Neera Panwar who conducted the medical examination of the victim on 06.08.2008 were recorded under Section 202 Cr.P.C., copies of which are annexed collectively as annexure 9 to the affidavit.
In the meantime, the applicants preferred a Criminal Revision No. 4348 of 2009 before this Court under Section 401 read with Section 397 Cr.P.C. feeling aggrieved by the order dated 01.10.2009 passed by the Additional Chief Judicial Magistrate, Baghpat in Case No. 468 of 2009 which arises out of the First Information Report. The said revision was dismissed vide order dated 16.12.2016, copy of which is annnexed as annexure 10 to the affidavit. The Court while dismissing the revision observed that from the record it finds that after the order dated 22.01.2009 the accused revisionists did not appear and Magistrate issued bailable warrant and non-bailable warrant execution whereof was subsequently stayed. The Magistrate then directed to proceed with the matter by issuing fresh summons. The file of the FR case/protest petition and the complaint case were tagged together. Subsequently, the order impugned dated 3.08.2019, copy of which is annexed as annexure 11 and subsequently at page 60 to the paper book has been passed in the complaint case which reads as under:-
" Called out. None present.
In instant case by order dated 22.01.2009 accused persons Kuldeep and Yudhveer were summoned under Section 376 IPC.
Further proceedings of this case were stayed till next date of listing by order of Hon'ble High Court passed in criminal revision no. 4348 of 2009. Aforesaid criminal revision is finally dismissed by order dated 16.12.2016. Copy of order is available on record.
Hence, In the light of order dated 16.12.2016 summons are issued against accused persons.
Put up on 19.08.2019 for appearance."
At the very outset, it is important to point out that even earlier in Criminal Revision No. 4348 of 2009 it was observed that the summoning order dated 22.01.2009 is not under challenge in the same. The initial order summoning the accused is dated 22.01.2009. The same is still not under challenge in the present application under Section 482 Cr.P.C. The order impugned is only an order revalidating the summoning order dated 22.01.2009 but is not the summoning order in actual. The summoning order dated 22.01.2009 is still not under challenged in the present application and is even not annexed in the present petition. The question of non-compliance of Sections 204(2) Cr.P.C. and 204(4) Cr.P.C. is not relevant at the present moment as there is no material to show that after the summoning order, the same were not complied with.
The judgments as relied by the learned counsel for the applicants are of no help to him as the challenge in the present application is not of the summoning order but an order which is in the order revalidating the summoning order which is not under challenged before this Court.
The present petition lacks merit and is whereby dismissed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal, J.) Order Date :- 22.7.2020 M. ARIF