Allahabad High Court
Laieq Ahmad And 4 Others vs State Of U.P. And Another on 16 December, 2020
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 93 Case :- APPLICATION U/S 482 No. - 17688 of 2020 Applicant :- Laieq Ahmad And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prateek Kumar Srivastava,Pooja Srivastava,Sr. Advocate(Shri V.P. Srivastava) Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Prateek Srivastava and Pooja Srivastava, learned counsel for the applicants and learned AGA for the State.
This application u/s 482 Cr.P.C. has been preferred seeking for quashing the impugned charge sheet dated 3.4.2020 (contained in Annexure No.14) as well as further proceeding of C.N.R. No.UPJB04000212722019, State Vs. Laieq and others arising out of Case Crime No.674 of 2018, under Sections 366, 323, 342, 376D, 506 IPC, Police Station Amroha City, District Amroha pending in the Court of Chief Judicial Magistrate, Amroha.
Learned counsel for the applicants submits that on the basis of order passed on application under Section 156(3) Cr.P.C moved by opposite party no.2 first inofrmation report was lodged on 5.10.2018 which has been registered as Case Crime No.674 of 2018, under Sections 366 IPC, Police Station Amroha City, District Jyotiba Phule Nagar.
In the first information report, it has been alleged that on 4.9.2018, first informant along with her daughter Shagufta came to Amroha Hashmi Degree College and after leaving her daughter Shagufta in the college, she went market and when she returned to college her daughter was not found there, she informed his husband Munna about the incident. It is further alleged that at tempo stand she was informed by Imran son of Anwar and Nafees son of Shaukeen that her daughter Shagufta was seen travelling in white colour bulerro towards Atrasi in which six persons were seated. They reocgnized five persons and they were Laieq, Bhura alias Arif, Arman & Idrish all sons of Rais and Mohammad Umar son of Rafeeq. First Informant then apprehended that her daughter Shagufta is kidnapped for conducting Nikah.
Learned counsel for the applicants further submits that the entire case of prosecution is bag of lies, no such incident of kidnapping occurred and applicants are falsely implicated in this case with ulterior motive. Challenging the legality and validity of the first information report dated 5.10.2018 applicants approached this Ho'ble Court by filing Criminal Misc. Writ Petition No.29434 of 2018, Laieq and others Vs. State of U.P. And others. This Hon'ble Court vide order dated 12.10.2018 stayed the arrest of the applicants till the submission of police report under Section 173(2) Cr.P.C.
It was further argued by the learned counsel for the applicants that on 20.11.2018, prosecutrix Shagufta appeared before the police and the statement u/s 161 Cr.P.C was recorded. The prosecutrix Shagufta has not supported the prosecution case and thereafter she was subjected for recording of statement under Sections 164 Cr.P.C. in this also she did not support the prosecution case and stated that on her own sweet Will she went to Delhi alone and stayed to her Mama's house, the family members were pressuring for marriage, she was not ready so she went to Delhi, no allegation of kidnapping was made against the applicants.
Learned counsel for the applicants further argued that prosecutrix Shagufta was subjected for medical examination itself on 20.11.2018 for which she refused. Since no substance whatsoever was found in prosecution case therefore Investigating Officer submitted Final Report No.303 of 2018 in the case on 23.11.2018, in favour of the applicants. Aggrieved against submission of Final Report No.303 of 2018, opposite party no.2 moved protest petition on 17.6.2019 before the Cheif Judicial Magistrate, Amroha. This protest petition was allowed, Final Report No.303 of 2018 was set aside and vide order dated 22.7.2019, Chief Judicial Magistrate, Amroha directed the concerned Officer Incharge Amroha City to conduct further investigation.
Thereafter further investigation started and on 21.8.2019 supplementary staement of prosecutrix Shagufta under Section 161 Cr.P.C was recorded in which first time she made allegation of rape with her by the applicants and introduced two other accused namely Mujammil and Kayyum. Thereafter supplementary statement u/s 164 Cr.P.C was also recorded. The prosecutrix Shagufta was subjected for medical on 3.10.2019 in which no mark of injury seen.
Learned counsel for the applicants further submits that on 21.01.2020 third time prosecutrix Shagufta was examined by the Investigating Officer. On the basis of alleged evidence collected this time Investigating Officer submitted charge sheet against the applicants on 3.4.2020 for the offences under sections 366, 323, 342, 376D, 506 IPC, thereupon Chief Judicial Magistrate Amroha took cognizance on 10.09.2020.
Learned counsel for the applicants summarising his argument further submits that actual story behind the entire prosecution case is different. Both side are residents of same Mohalla. Applicant No.1 Laieq is Nai (Barbar) by caste whereas complainant side is Sheikh. On attaining the age of majority both applicant no.1 Laeeq and prosecutrix Shagufta attracted to each other, they developed relations and wanted to marry. This friendship was not liked by the complainant's family and they were not ready for marriage of applicant no.1 Laeeq with prosecutrix Shagufta. Thus being no alternative both left their house and performed Nikah and started living as husband and wife.
Annoyed with marriage of applicant no.1 Laeeq and prosecutrix Shagufta, Munna father of prosecutrix (Shagufta) lodged the first information report registered as Case Crime No.98 of 2018, under Sections 366 IPC at Police Station Rajabpur District Amroha. In this case charge sheet was submitted against applicant no.1 Laeeq and Trial is going on.
Learned counsl for the applicants further submits that the prosecutrix Shagufta is major and at the time of incident she was more than 30 years of age. Moreover prosecutrix Shagufta out of her own free Will left the house of her parent and performed Nikah with applicant No.1 Laieq, therefore, no offence under section 366 and 376D is made out. The applicants are innocent, have committed no offence and thus prosecution of the applicants is void ab-initio since no offence under Sections 366, 323, 342, 376D, 506 IPC is made out. The Investigaing Officer ignoring the credible evidence submitted charge sheet against the applicants, when further investigation was directed by the court below in most arbitrary manner and the learned Magistrate without considering the entire facts and circumstances of the case took the cognizance over the same which is illegal.
Learned counsel further argued that the charge sheet and cognizance order were challenged on the following paras:-
(I) The main and one legal question involved in the present case is that as to whether there can be two FIRs in respect of one incident or one incident connected with another incident.
(II) The prosecutrix Shagufta went with applicant No.1 Laieq for which first information report was lodged by the father registered as Case Crime No.98 of 2018, under Sections 366 IPC at Police Station Rajabpur District Amroha and the proceeding is pending.
(III) After some time she was recovered and not supported the case of prosecution, therafter, the present first information report was lodged on 5.10.2018 on the basis of application under Section 156(3) Cr.P.C by mother of prosecutrix Shagufta, implicating Laieq and his other family members on similar allegation.
(IV) Thus present first information report is connected with earlier first information report in the same bundle of facts therefore second first information report and charge sheet/ cognizance order thereof is liable to be quashed.
In support of his argument, learned counsel for the applicant has placed reiance of the judgments of the Hon'ble Apex Court in the case of AMITBHAI ANILCHANDRA SHAH VS. CENTRAL BUREU OF INVESTIGATION AND ANOTHER, (2013) 6 SCC 348 and placed paragraph nos.59 and 60 of the judgement, which is quoted as under.
"59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and inspite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.
60. In view of the above discussion and conclusion, the second FIR dated 29.4.2011 being RC No.3(S)/2011/ Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8.4.2011 by this Court in Narmada Bai v. State of Gujarat and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4.9.2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) No.149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No.5 of 2013."
Furthe reliance has been placed on the Hon'ble Apex Court judgment in the case of T.T. ANTONY V. STATE OF KERALA AND OTHERS, 2001(6) SCC 181 and placed paragraph no. 27 of the above judgement which is quoted as under:-
" 27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution.
Learned counsel for the applicants has submitted that in view of the law laid down by the Hon'ble Apex Court and the facts and circumstances, as narrated above, the impugned charge sheet and cognizance order is against the spirit and directions issued by the Hon'ble Apex Court.
Learned AGA has opposed the argument raised by the learned counsel for the applicants and has submitted that the charge sheet and cognizance order was rightly passed.
In view of the law laid down by the Hon'ble Apex Court and the facts of the case as narrated by learned counsel for the applicants.
The matter requires consideration.
Issue notice to opposite party no.2, who may file counter affidavit within three weeks, after service of notice.
Learned AGA may also file counter affidavit within the same period.
Two weeks time thereafter is allowed to learned counsel for the applicant to file rejoinder affidavit.
List this case on 08.02.2021 in the additional cause list before the appropriate Bench.
Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case.
This matter shall not be treated as tied up or part heard with this Bench.
Order Date :- 16.12.2020 Monika/SFH