Allahabad High Court
Raj Kumar vs State Of U.P. And Another on 9 December, 2014
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 49
Case :- APPLICATION U/S 482 No. - 50297 of 2014
Applicant :- Raj Kumar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Rajeev Trivedi
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Harsh Kumar,J.
Heard Sri Rajeev Trivedi, learned counsel for the applicant and learned AGA for the State.
The application has been moved under section 482 Cr.P.C. for quashing the charge sheet in case crime no.193 of 2012, under sections 363, 366, 376, 120-B IPC on the basis of which, S.T. No.167 of 2013 is pending before Additional Sessions Judge, Court No.5, Kanpur Nagar.
Learned counsel for the applicant contended that the incident is alleged to be dated 28.7.2011 of which F.I.R. has been lodged with inordinate delay on 13.6.2012 and charge sheet has been filed, upon which the case has been committed to sessions and S.T. No.167 of 2013 is pending against the applicant and other co-accused; that the prosecutrix/victim had gone with the applicant with her own sweet will and made marriage with him; that subsequently on attaining majority on 1.2.2014 the victim has again made marriage with the applicant; that the applicant has been granted bail and in the circumstances, the charge sheet is liable to be quashed, as no fruitful purpose is likely to be achieved by prosecuting the case when the victim/prosecutrix has made marriage with the applicant.
Learned AGA opposed and contended that undisputedly the prosecutrix was minor at the time of incident and the alleged marriage with minor is nullity and may not be considered to be a marriage in the eye of law; that applicant is guilty for committing rape with minor girl of 15 ½ years; that the date of birth of prosecutrix is 1.2.1996 as stated by her and also mentioned in her High School Certificate; that by obtaining marriage certificate subsequent to 1.2.2014, (after attaining majority by the prosecutrix) the crime committed during her minority under section 376 IPC may not be undone; that the charge sheet was submitted long back upon which the cognizance was taken on 1.12.2012 and there is no justification for moving this application for quashing of charge sheet after a span of around two years; that delay in lodging of F.I.R. may not be material in cases under section 376 IPC; that the applicant accused is an influential person and F.I.R. could be lodged only through order of Magistrate upon application under section 156 (3) Cr.P.C.; that there is no deliberate delay in lodging F.I.R.;that the applicant and co-accused are habitual of moving one writ after dismissal of another and after refusal by this Court to quash the F.I.R., in Writ Petition No.9606 of 2012 filed by applicant, the applicant has moved this application for quashing the charge sheet and is committing abuse of process of Court; that the applicant has not come with clean hands and has moved this application with mala fide intention and false allegations; that there is no sufficient ground for quashing of charge sheet and exercising of inherent powers by this Court to prevent any abuse of process of court or to secure the ends of justice.
Upon hearing the learned counsel for the parties and perusal of record, I find that undisputedly the occurrence took place on 28.7.2011 when the prosecutrix was allegedly kidnapped by applicant and his associates. Undisputedly the date of birth of prosecutrix is 1.2.1996 as per High School Certificate annexed as annexure no.10 and so she was aged about 15 ½ years at the time of incident. The applicant claimed to have obtained agreement from the minor prosecutrix on 1.9.2011 (Annexure No.2) mentioning therein of living as husband and wife since last one year and mentioning the age of prosecutrix as 19 years. The applicant has also filed copy of marriage certificate of Arya Samaj Chowk, Prayag dated 13.2.2014 between applicant and prosecutrix while the marriage certificate issued by the Office of the Registrar of Hindu Marriage Chail, District Kaushambi (Annexure No.10) contains that marriage has been solemnized on 7.2.2014 and having been registered on 21.2.2014 which facts are self contradictory.Undisputedly, the prosecutrix attained the age of majority i.e. 18 years on 1.2.2014 and by solemnization marriage after attaining majority, the offence committed earlier may not be undone. The applicant has failed to disclose as to what abuse of process is likely to be caused by submission of charge sheet upon which cognizance has been taken and case has been committed to sessions about two years back.
Undisputedly the prayer made by applicant thourgh Writ Petition No.9606 of 2012 for quashing the F.I.R. of this case, has been turned down by Division Bench of this Court vide order dated 14.8.2012. Hence, present application with prayer for quashing the charge sheet is nothing but abuse of process of Court by the applicant as the applicant is obstructing the prosecution to proceed and committing abuse of process of Court.
It is settled principle of law that inherent powers under section 482 Cr.P.C. should be exercised very sparingly and carefully only to prevent commission of any abuse of Court.
In this respect following case laws are necessary to be referred:-
In the case of State of Andhra Pradesh V. Gourishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767:2010 Cr.LJ 3844, the Hon'ble Apex Court has held that "while exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court".
In the case of Hamida V. Rashid, (2008) 1 SCC 474, the Hon'ble Apex Court has held that "ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under section 482 at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice."
In the case of Monica Kumar V. State of Uttar Pradesh, (2008) 8 SCC 781, the Hon'ble Apex Court has held that " inherent jurisdiction under section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself."
In view of the discussions made above, I find that the applicant himself is committing abuse of process of Court and has failed to show that any abuse of process of Court has been caused by submission of charge sheet. There is no sufficient ground requiring exercise of inherent power by this Court under section 482 Cr.P.C. for quashing the charge sheet in order to prevent abuse of process of any Court or otherwise to secure the ends of justice. The application is devoid of merits and is liable to be dismissed.
The application is dismissed, accordingly.
Order Date :- 9.12.2014
Tamang
