Allahabad High Court
Tasbbur vs State Of U.P. And Another on 11 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 39524 of 2019 Applicant :- Tasbbur Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Rakesh Kumar Verma, learned counsel for the applicant, Sri Attreya Dut Mishra, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet dated 08.05.2019 as well as cognizance order dated 15.06.2019 and also to quash the entire proceedings of Case No.1095 of 2019 (State vs. Tasbbur) arising out of Case Crime No.118 of 2019 under section 376, 506 IPC, Police Station Kotwali Sambhal, District Sambhal pending in the Court of Chief Judicial Magistrate, Sambhal and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that there was love affair between the accused-applicant and opposite party no.2. The opposite party no. 2 is a major girl who was neighbour of the accused-appliant. There was marriage talk going on between the two and when the marriage could not be performed, the present case has been slapped against the accused-applicant. It is further argued that earlier an application under section 156 (3) Cr.P.C. was moved from the side of opposite party no. 2, which is annexed at pages 16 and 17 of the paper book, which was registered as complaint case but the same was dismissed, when the opposite party no. 2 did not appear to get her statement recorded and thereafter the present false FIR has been lodged by her in order to implicate the whole family of the accused-applicant, although the police after investigation, exonerated the family members of the accused-applicant and has made the applicant to be accused in this case. The accused-applicant has got himself bailed out. The prosecution is nothing but an abuse of the process of Court which needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet and has argued that the victim in her statement under section 164 Cr.P.C. has clearly stated that she was raped by the accused-applicant on the pointing of country made pistol and the said statement cannot be disbelieved at this stage and hence quashing of charge-sheet should be refused.
I have gone through FIR. It is mentioned in it that the accused applicant is neighbour of the opposite party no. 2 and after giving false assurance that he would marry her, had committed rape upon her. After investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as eight witnesses which cannot be disbelieved in proceedings u/s 482 Cr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added) The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
With aforesaid direction, this application is finally disposed of.
Order Date :- 11.11.2019 AU