Allahabad High Court
Satish Kumar Sharma vs State Of U.P. & Another on 4 December, 2019
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Heard learned counsel for the applicant Mr. Anurag Shukla, learned A.G.A., Mr. Aniruddh Kumar Singh and perused the record.
2. The present application has been filed under Section 482 Cr.P.C. for quashing the charge sheet dated 15.07.2018 filed in Special Trial No. 301 of 2018 arising out of Case Crime No. 423 of 2018, under Sections 323, 376, 376(2)(k), 376(2)(n), 377, 504, 506 I.P.C. and Sections 3(1)-Da, 3(1)-Gha and 3(2)-Va of SC/ST Act, 2015, P.S. Gazipur, District Lucknow as well as summoning order dated 28.07.2018 passed by Additional Sessions Judge/Special Judge SC/ST Act, Court No.2, Lucknow.
3. Learned counsel for the applicant submitted that the prosecutrix/ opposite party No.2 is aged about 34 years and she is a practicing advocate at Hon'ble High Court, Lucknow and he further submitted that on her written complaint, the F.I.R. as Case Crime No. 352 of 2018, under Sections 323, 504, 506 I.P.C. and Section 3(1) (da) & (gha) and Section 3(2) (va) of SC/ST Act, P.S. Gazipur, District Lucknow was registered on 21.04.2018 at 11:42 hours. He further submitted that the false F.I.R. has been lodged with the malafide intention.
4. Learned counsel for the applicant also submitted that in the F.I.R., it is alleged by the opposite party No.2 that she is an Advocate belongs to Schedule Castes and she was associated with the applicant as both were working together and she was also residing in the accommodation owned by the applicant on rent and the prosecutrix was raped for a period of three years by the applicant and she had been blackmailed by the applicant on the basis of video clips taken by him in the hotel. He further submitted that it is also alleged in the F.I.R. that the prosecutrix was raped in the car parking of the High Court, Lucknow premises for a period of three years and the prosecutrix was given beatings on 20.04.2018 by the applicant, as a result, the aforesaid F.I.R. was lodged on 21.04.2018. He further submitted that the applicant is also a practising advocate and the opposite party No.2 was the tenant in the house of the applicant (jointly owned by two brothers and wife of the applicant). He further submitted that two accommodations were rented to the brother in law of prosecutrix and the prosecutrix also in lieu of rent of Rs.7,000/- p.m. each, first floor and ground floor of the residence.
5. Learned counsel for the applicant further submitted that impugned prosecution has been initiated against the applicant only with the intention to grab the house of the applicant i.e. House No.16, Basant Vihar, Sector-14, Indira Nagar, Lucknow.
6. Learned counsel for the applicant further submitted that the prosecutrix is habitual to falsely implicate innocent persons and relied on the pages of diary of the prosecutrix and her own statements in which similar allegations have been levelled against her earlier seniors namely Mr. Ajay Shekhawat (Advocate), Mr. Joginder Singh (alleged C.B.I. Director) and Mr. Raj Solanki and he has also relied on some pages of the diary of the complaint (appended as annexure No.6 to the application).
7. Learned counsel for the applicant further submitted that she also made allegations against her own brother in law namely Dr. Shaukat Khan and he further submitted that her family members are also habitual to blackmail innocent, for example the brother of prosecutrix namely Bharat filed an application under Section 156(3) Cr.P.C. against the owner of his house and later on the application was withdrawn by saying that the matter has been settled amicably.
8. Learned counsel for the applicant further submitted that applicant and the prosecutrix worked together as a lawyer and also drew attention of this Court on annexure No.9 to the application i.e. list of the cases which were filed or conducted by the applicant and the prosecutrix together in between the years of 2015-2017.
9. Learned counsel for the applicant further submitted that after realising the intention of the prosecutrix, the applicant started side lining her, as a result, she felt offended and threatened the applicant of its dire consequences.
10. Learned counsel for the applicant further submitted that the prosecutrix also withdrew Rs.2,20,000/- from the account of the applicant and he further submitted that the prosecution story is not corroborating with her medical report in relation to the forceful sex and no offence under the provision of SC & ST Act is made out.
11. Learned counsel for the applicant also relied on the decisions of Hon'ble Supreme Court in the cases of Anita Kushwaha vs. Pushap Sudan reported in 2016 8 SCC 509, Para 31, Punjab State warehousing Corporation, Fardikot vs. M/s Sh. Durga Ji Traders & Ors. reported in AIR 2012 SC 700, State of Punjab vs. Central Bureau of Investigation reported in 2011 9 SCC 182 para 32 and Rattan Chand Hira Chand vs. Askar Nawaz Jung 1991 3 SCC 67 and submitted that the impugned prosecution initiated with the malafide intention as the medical evidence and the prosecution story is contradictory, therefore, the impugned proceeding is liable to be quashed.
12. Learned A.G.A. opposed the prayer of the the applicant and submitted that there is no illegality in the charge sheet as after investigation incriminating evidences was collected by the Investigating Officer then the charge sheet was filed and the competent court has taken cognizance on the charge sheet. He further submitted that charges have been framed and the evidence of the prosecutrix has been recorded, therefore, the applicant may co-operate in the trial and at appropriate stage he may submit his defence before the trial court.
13. Learned counsel for the opposite party No.2 also submitted that the prosecutrix was medically examined and signs of assault were found over the body of the victim, which is clearly mentioned in the medical report and she further submitted that charges have been framed and the trial is going on and the statement of the prosecutrix is recorded by the trial court as PW-1 and the opposite party No.2 has to cross-examine, therefore, at this stage, the application has no force and same is liable to be dismissed with cost.
14. Learned counsel for the opposite party No.2 also relied on the decision of Hon'ble Supreme Court in the case of Anurag Soni vs. State of Chattisgarh decided on 09.04.2019 in Criminal Appeal No. 629 of 2019 and submitted that the rape is a crime against the entire society and violate the human rights of a victim as the opposite party No.2/victim received injuries.
15. After considering the arguments of the learned counsel for the applicant as well as learned A.G.A. and learned counsel for the opposite party No.2, it is evident from the record that the F.I.R. was lodged on the written complaint of the opposite party No.2, as it is admitted by the applicant that the opposite party No.2 was his associate in the legal profession and number of cases were filed collectively but she lodged F.I.R. and initiated criminal prosecution.
16. It is also evident from the record that after investigation, the charge sheet was filed by the Investigating Officer, during the course of investigation the applicant never raised his grievance before the competent authority or competent court in relation to the fact that the investigation was not properly done and at this stage he wants to place his factual evidence for adjudication, which is not permissible. As it is evident that the investigation was not done properly as prescribed in Chapter XI of U.P. Police Regulation and Chapter XII of Code of Criminal Procedure, but trial cannot be quashed due to faulty investigation.
17. As the decisions of the Hon'ble Supreme Court relied by the learned counsel for the applicant in the case of Anita Kushwaha vs. Pushap Sudan reported in 2016 8 SCC 509, Para 31, Punjab State warehousing Corporation, Fardikot vs. M/s Sh. Durga Ji Traders & Ors. reported in AIR 2012 SC 700, State of Punjab vs. Central Bureau of Investigation reported in 2011 9 SCC 182 para 32 and Rattan Chand Hira Chand vs. Askar Nawaz Jung 1991 3 SCC 65, KAINI Rajan vs. State of Kerala reported in 2013 9 SCC 113, Abbas Ahmad Choudhary vs. State of Assam reported in 2010 12 SCS 115, Deepak Gulati vs. State of Haryana reported in 2013 7 SCC 675, Raju and others vs. State of M.P. reported in 2008 15 SCC 133 and M/s Suryalakshmi Cotton Mills Ltd. vs. M/s Rajvir Industries Ltd and Ors. reported in AIR 2008 SC 1683.
18. As it evident that all the judgment relied by the counsel for the applicant are not applicable in the present case and it is also evident that the charge sheet was filed by the Investigating Officer and congnizance was taken by the court below and after framing charge, the examination in chief of the prosecutrix has been recorded by the trial court.
19. It is well settled by the Hon'ble Supreme Court in the case of Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra and Others reported in 2019 SCC OnLine SC 182 that the correctness or genuineness of the allegations is to be decided only in the trial and not in the proceedings under Section 482 Cr.P.C. The relevant paras of the aforesaid judgment are read as under-
"6. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.
7. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not.
8. Relying upon the aforementioned judgments of this Court, Mr. M.N. Rao, learned Senior Counsel appearing for the Appellant submitted that the High Court acted in excess of its jurisdiction in setting aside the order of the Trial Court by which process for summoning the accused was issued. He further submitted that the evaluation of the merits of the allegations made on either side cannot be resorted to at this stage.
9. Mr. R. Basant, learned Senior Counsel appearing for the Respondent Nos. 2 to 6 and 8 to 11 submitted that a proper evaluation of the material on record would disclose that the complaint is frivolous. He submitted that the dispute is essentially of a civil nature and the ingredients of the offences that are alleged against the Respondent are not made out. By making the above statement, Mr. Basant commended to this Court that there is no warrant for interference with the judgment of the High Court.
10. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.
11. Accordingly, the appeal is allowed and the judgment of the High Court is set aside."
20. Considering the aforesaid facts that the charges were framed by the trial court and the Examination-in-Chief of prosecutrix has been recorded by the trial court as PW1 and the decision of the Hon'ble Supreme Court in the case of Sau. Kamal Shivaji Pokarnekar (supra), no case for quashing the charge sheet is made out.
21. Hence the application is rejected.
22. Further it is open to the applicant to raise his submissions/defence at the appropriate stage before the court below.