Allahabad High Court
Rishabh Kumar And Another vs State Of U.P. And Others on 8 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:61100 Court No. - 91 Case :- APPLICATION U/S 482 No. - 9092 of 2024 Applicant :- Rishabh Kumar And Another Opposite Party :- State of U.P. and Others Counsel for Applicant :- Shri Krishna Mishra Counsel for Opposite Party :- Ajay Mishra,G.A. Hon'ble Prashant Kumar,J.
1. Heard Sri Shri Krishna Mishra, learned counsel for the applicants, Sri Rajesh Kumar Shukla, learned Additional Government Advocate for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicants praying for quashing charge sheet dated 30.09.2022 submitted in Case crime no. 0264 of 2021, under Sections 452, 354, 323, 34 IPC and Section 9(Chha)/10 POCSO Act, Police Station Sikandra, District Kanpur Dehat, which is registered vide case no. 857 of 2023 (State Vs. Shyam Singh and others), pending in the court of Additional District and Sessions Jude (Protection of Children From Sexual Offences Act), 2012, District Kanpur Dehat as well as cognizance and summoning order dated 18.05.2023 passed by Additional District and Sessions Judge (Protection of Children From Sexual Offences Act), 2012.
3. Learned counsel for the applicants submits that an FIR was lodged on 11.12.2021 by the opposite party no.4 under Sections 452, 354, 323, 34 IPC and Section 9(Chha)/10 POCSO Act, in which it is alleged that the applicants entered the house of the opposite party no.4, beaten them and also misbehaved with his minor sister. After investigation charge sheet was filed on 30.09.2022 and the summons were issued on 18.05.2023. By means of instant application, the applicants have challenged the entire proceedings of the aforesaid criminal case. Counsel for the applicants submits that during investigation it was brought to the notice of the Investigating officer that the victim was major and not the minor, therefore, the Sections of POCSO Act will not apply in the present case and even then the Investigating Officer has submitted the charge sheet under the POCSO Act.
4. Per contra, learned A.G.A. has vehemently opposed the application and contended that as per evidence, which has been brought on record, shows that the victim is aged 17 years, therefore, the applicants have been rightly charge sheeted under the POCSO Act Act.
5. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which 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.
6. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) 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.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides 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."
7. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, 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 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
8. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant(s). It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
9. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 8.4.2024 Prajapati