Allahabad High Court
Udit Narayan Pandey vs State Of U.P. And Another on 16 June, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Heard Shri I.B. Singh, learned Senior Advocate assisted by Shri Ashish Raman Mishra, learned counsel for the applicant, Shri Anirudh Kumar Singh, learned A.G.A. for the State and Shri Manoj Kumar Singh, learned counsel for the private respondent.
2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 20.07.2018 passed by learned Additional District & Sessions Judge/F.T.C.-2nd, Bahraich in Criminal Revision No.316 of 2013 arising out of Compliant Case No.1245 of 2012, under Section 376, 511, 506, 323, 354 I.P.C.
3. Learned counsel for the applicant has submitted that applicant being a public servant joined the services as Goods Tax Officer (G.T.O.)/Passenger Tax Officer (P.T.O.) in the Transport Department, U.P. on 16.10.2004. On 30.06.2009, applicant received information regarding unauthorized plying of buses in between Bahraich, Shrawasti, Barabanki and Lucknow on the basis of forged documents, and thereafter, applicant took action and found that some unauthorized buses were being operated on the basis of forged documents, FIR was lodged against the persons involved in the crime as Case Crime No.1124 of 2009, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Kotwali Bhinga, District Shrawasti. Applicant moved an application before his superior authorities for the purpose of security and in furtherance thereto, the Regional Transport Officer (R.T.O.) vide his letter dated 26.09.2009, requested to D.I.G. (Police) Devipatan Range, Gonda for providing adequate security to the applicant, and thereafter, security was provided to him.
4. Learned counsel for the applicant has submitted that accused persons of Case Crime No.1124 of 2009 (supra) planted a false case against the applicant through private respondent, which was registered as Case Crime No.1217 of 2009, under Sections 376, 504, 506 I.P.C., Police Station Kotwali Dehat, District Bahraich on 06.11.2009, under the order of Magistrate on the application under Section 156 (3) Cr.P.C., dated 30.09.2009 with the allegation that on 28.09.2009 at about 7:00 A.M., private respondent came to Kedia Hospital, Bahraich and waiting for doctor, meanwhile, applicant reached there and dragged her in his house and committed rape. After lodging the aforesaid FIR, Police started investigation and during the course of investigation, Investigating Officer tried to trace out the private respondent, but he could not succeed. During the course of investigation, it was also found that name and address of the private respondent, which is mentioned in the FIR was incorrect and it was also found that one Iliyas, who is one of the accused for the charge of plying illegal buses is the architecture of the impugned proceeding because his business of plying buses on the basis of forged paper was stopped by the applicant.
5. Learned counsel for the appellant has submitted that statements of Shadab was recorded under Section 161 Cr.P.C., in which, he has not supported the prosecution version and statement of Rafiqeulla was also recorded under Section 161 Cr.P.C., in which, he also denied the prosecution story and stated that the photo which is pasted in the complaint is Smt. Rajjan w/o Idrish and she is residing in Nepal, occasionally, she came here and Iliyas has manipulated the documents and by placing the photo of Rajjan w/o Idrish, prosecution in question has been initiated in the name of Nagma. As notice was published in the news paper by the Investigating Officer by which, respondent No.2 was called for recording her statement as well as medical examination, but she did not turn up, and thereafter, protest petition was filed, which was manipulated by Iliyas, who is the accused of plying illegal vehicle, as the protest petition was rejected by Additional Chief Judicial Magistrate, Bahraich on 15.03.2011 and accepted the final report. Against the order dated 15.03.2011 passed by the Additional Chief Judicial Magistrate, Bahraich, respondent No.2 filed Criminal Revision No.201 of 2011, which was rejected by Session Judge, Bahraich, vide his detailed order dated 08.08.2011, and thereafter, against the order dated 08.08.2011, passed by Session Judge, Bahraich, respondent No.2 filed application (u/s 482 Cr.P.C.) bearing Case No.5184 of 2011 before this Court, which was also rejected on 29.11.2011. He further submitted that respondent No.2 has filed a complaint case on 13.01.2012 and requested for taking cognizance and punishing the applicant. In the complaint this fact was not mentioned that during the course of investigation, respondent No.2 did not appear before the Investigating Officer, despite repeated efforts. As in the investigation, this fact was found that respondent No.2 was not residing at the given address and notice was published in the news paper and she was also called for recording her statement as well as medical examination, but she did not turn up and the reason is also not mentioned in the complaint case.
6. Learned counsel for the applicant has submitted that court below has failed to consider the police report/records of the Case Crime No.1217 of 2009 (supra), and thereafter, statement under Sections 200 and 202 Cr.P.C. was recorded on the behest of Iliyas. As in the case of rape, Cr.P.C. clearly provides that statement of victim shall be recorded under Sections 164 as well as 164 (a) Cr.P.C. In the present case, it is alleged that prosecutrix was dragged from the hospital to the house of applicant, therefore, she must be medically examined, but she did not turn up despite repeated efforts of the Investigating Officer, even the notice was also published in the news paper.
7. Learned counsel for the applicant has submitted that prosecutrix in the FIR as well as in the complaint has categorically stated that in the morning at 7:00 A.M., she was waiting for doctor at Kedia Hospital, Bahraich, but during the course of investigation, statement of Nand Pal Singh was recorded in Case Crime No.1217 of 2009 (supra), in which, he stated that he was the employee of Kedia Hospital and he was deployed at the Gate of the Hospital since 7:00 P.M. to 8:00 A.M., as doctor was out of country, therefore, hospital was closed since 26.09.2009 to 04.10.2009, therefore, no patient visited the hospital. Statement of Pramod Kumar Jaiswal (compounder) of Kedia Hospital was also recorded and he stated that on 26.09.2009 in the morning no any patient in the name of Nagma visited to the hospital. In the investigation, it was also found that applicant was residing with his wife, grand mother, father and children and owner of the house, namely, Shashidhar Singh, neighbour, C.D. Cladias and Rewati Raman Mishra. Shashidhar Singh (owner of the house) and neighbour-C.D. Cladias and Rewati Ram Mishra also stated in their statements recorded under Section 161 Cr.P.C. that on 28.09.2009 at 7:00 A.M. no such incident as alleged by the respondent No.2 was taken place.
8. Learned counsel for the applicant has relied on the decision of Coordinate Bench of this Court in the case of Raes And Ors vs. State of U.P. and Anr. reported in Application (u/s 482 Cr.P.C.) No.2507 of 2012, in which, it was dealt that Magistrate is required to consider the police report before summoning the accused in the complaint case and police report cannot be termed as irrelevant in context of the incident, therefore, learned Revisional Court has committed wrong in passing the impugned order dated 20.07.2018. He also relied on the decision of Hon'ble Supreme Court in the case of Ravindranatha Bajpe vs. Mangalore Special Economic Zone LTD. and others reported in (2021) (227) AIC 36 SC and submitted that Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Therefore, indulgence of this Court is needed and the impugned order may be set aside.
9. Learned Additional Government Advocate as well as learned counsel for the respondent No.2 oppose the prayer of applicant and submitted that as per the provision of Section 203 Cr.P.C., Magistrate has to consider the statement on oath of complainant and witnesses, but in the present case, learned Magistrate has considered the result of the investigation of Case Crime No.1217 of 2009 (supra), which is not permissible.
10. Considering the argument of learned counsel for the applicant, learned Additional Government Advocate as well as learned counsel for the complainant and going through the pleadings of the application as well as impugned order passed by Additional and District Judge/F.T.C.-2nd, Bahraich in Criminal Revision No.316 of 2013, it is evident that applicant was posted in District Srawasti as Goods Tax Officer (G.T.O.)/Passenger Tax Officer (P.T.O.)/in-charge A.R.T.O. on 20.06.2005. On 30.06.2009, he received information regarding unauthorized plying of buses in between Bahraich, Shrawasti, Barabanki and Lucknow on the basis of forged documents, and thereafter, he took action and found that some unauthorized buses were being operated on the basis of forged documents, FIR was lodged against the persons involved in the crime as Case Crime No.1124 of 2009 (supra). It is also evident that against the applicant, Case Crime No.1217 of 2009, under Sections 376, 504, 506 I.P.C., Police Station Kotwali Dehat, District Bahraich was lodged on 06.11.2009, under the order of Magistrate on the application under Section 156 (3) Cr.P.C., dated 30.09.2009 with the allegation that on 28.09.2009 at about 7:00 A.M., private respondent came to Kedia Hospital, Bahraich and she was waiting for doctor, meanwhile, applicant reached there and dragged her in his house and committed rape.
11. It is evident that during the course of investigation, statement of Nand Pal Singh was recorded, in which, he stated that he was the employee of Kedia Hospital and he was deployed at the Gate of the Hospital since 7:00 P.M. to 8:00 A.M., as doctor was out of country, therefore, hospital was closed since 26.09.2009 to 04.10.2009, therefore, no patient visited the hospital. Statement of Pramod Kumar Jaiswal (compounder) of Kedia Hospital was also recorded and he also stated that on 26.09.2009 in the morning no patient in the name of Nagma visited to the hospital. Statements of Shashidhar Singh (owner of the house) as well as neighbour, namely, C.D. Cladias and Rewati Raman Mishra were recorded under Section 161 Cr.P.C., in which, they stated that on 28.09.2009 at 7:00 A.M. no such incident as alleged by the respondent No.2 was taken place. Statement of Rafiqeulla was also recorded under Section 161 Cr.P.C., in which, he also denied the prosecution story and he also stated that the photo which is pasted in the complaint is Smt. Rajjan w/o Idrish and she is residing in Nepal, occasionally, she came here and Iliyas has manipulated documents and by placing the photo of Rajjan w/o Idrish, the prosecution in question has been initiated in the name of Nagma. As notice was published in the news paper by the Investigating Officer by which, respondent No.2 was called for recording her statement as well as medical examination, but she did not turn up, and thereafter, protest petition was filed, which was manipulated by Iliyas, who is the accused of plying illegal vehicle, as the protest petition was rejected by Additional Chief Judicial Magistrate, Bahraich on 15.03.2011 and accepted the final report. Chief Judicial Magistrate, Baharich has rightly considered the record of the Investigation, as Section 203 Cr.P.C. does not deal the circumstances, when the investigation is already conducted and final report was accepted and acceptance order was upheld by this Court, and thereafter, in case, any complaint is filed, then it is a duty of the Magistrate to consider the investigation report in the interest of justice as held by this Court in the case of Raes And Ors vs. State of U.P. and Anr (supra) and Ravindranatha Bajpe vs. Mangalore Special Economic Zone LTD. and others (supra), the Magistrate has rightly considered and rejected the complaint and learned revisional court committed error for passing the impugned order ignoring the record of the investigation of case as the Investigation of the same allegation was already conducted, which was monitor by Senior Police Officer as well as Joint Director Prosecution, and thereafter, final report was submitted and which was accepted. Protest petition was filed by the respondent no.2 was rejected and against the said order, revision was filed, which was rejected. Against the revisional order, petition under Section 482 Cr.P.C. was also filed and which was also rejected.
12. In such circumstance, in case any complaint is filed later on, then Magistrate is duty bound to consider the Police/Investigation report, therefore, order dated 20.07.2018 passed by Additional District & Sessions Judge/F.T.C.-2nd, Bahraich in Criminal Revision No.316 of 2013 arising out of Compliant Case No.1245 of 2012, under Section 376, 511, 506, 323, 354 I.P.C. is per se illegal and same is hereby set aside.
13. In view of the above, the application (u/s 482 Cr.P.C.) is allowed.
(Rajeev Singh,J.)