Chandrapal And Another vs State Of U.P. And Another
2016 Latest Caselaw 5969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 54
 

 
Case :- APPLICATION U/S 482 No. - 21766 of 2014
 

 
Applicant :- Chandrapal And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Siddharth
 
Counsel for Opposite Party :- Govt.Advocate,G.R.S. Pal,Sudhir Kumar
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The applicants by means of the instant application under section 482 Cr.P.C. have invoked the inherent jurisdiction of this court with the prayer to quash the entire proceedings of S.T. No. 935 of 2013, under sections 363, 366, 376-D I.P.C. and 5/6 POCSO Act, P.S. Faizganj Vehta, District Budaun, pending in the court of Additional Sessions Judge, Court No. 8, Budaun.

Heard Sri Siddharth, learned counsel for the applicants, learned AGA for the State of U.P. and Mr. R.P.S. Chauhan, learned counsel for O.P. No. 2.

Learned counsel for the applicants has submitted that the applicants have been falsely implicated in this case. The applicant no. 1 is a fair price shop dealer, therefore, O.P. No. 2 has falsely implicated him in this case to extort money from him as she had threatened the applicant no. 1 that if the money was not given to her she would sent him to jail resulting in the cancellation of his fair price shop license. It is also alleged that due to strained relations with her husband for the reason that O.P. No. 2 never wanted that her daughter should be married to co-accused Nekpal, she lodged the false report against the applicants, who are the near relatives of Nekpal.

The brief facts giving rise to the present dispute are that on 27.4.2013 one Ram Charan Maurya, husband of O.P. No. 2 filed an application under section 156(3) Cr.P.C. in the court of C.J.M., Budaun, alleging that on 23.4.2013 his minor daughter Manju aged about 14 years was kidnapped by accused Nekpal and Siyaram and since the police did not register his FIR, he moved the application under section 156(3) Cr.P.C. praying for lodging of the FIR and its investigation by the police. The learned Magistrate registered the application as a Misc. Case under section 363 and 366 I.P.C. and called for report from the concerned police station. When the application was pending before the Magistrate, waiting for police report, the complainant Ram Charan Maurya and his daughter, Manju, appeared before the court and made statements that they have moved the aforesaid application under pressure of the villagers and they do not wish to press this application. The learned Magistrate, accordingly dismissed the application u/s 156(3) Cr.P.C. as not pressed vide order dated 15.5.2013.

However, the wife of Ram Charan Maurya i.e. mother of the prosecutrix, (O.P. No. 2 in the instant application), moved another application u/s 156(3) Cr.P.C. on 8.5.2013 alleging that during the pendency of the application under section 156(3) Cr.P.C. filed by her husband Ram Charan Maurya, he was abducted by the accused persons and the police of P.S. Faizganj Vehta, District Budaun, detained him at some unknown place along with the prosecutrix and they threatened them of dire consequences, if they dared to give any evidence in the court against the accused persons. It was further alleged that the husband of O.P. No. 2 Ram Charan Maurya and her daughter were directly produced from the custody of accused persons before the Additional Sessions Judge on 9.5.2013 and under pressure and threat they gave the statements that they do not want to press their application. O.P. No. 2- the mother of prosecutrix also named the present applicants in her application u/s 156(3) Cr.P.C. as accused persons along with accused Nekpal and Siyaram. The aforesaid application of O.P. No. 2 was allowed by the learned Magistrate and the police was directed to register and investigate the case. During investigation, the prosecutrix was recovered and she was medically examined in the District Woman Hospital, Budaun, on 2.9.2013. Her radiological age was found to be 16 years and she was found pregnant. Her statement u/s 164 Cr.P.C. was also recorded in which she stated about the active involvement of all the four accused persons in her abduction and rape. However, the police submitted charge sheet only against two accused persons Nekpal and Siyaram and exonerated the present applicants Chandrapal and Ram Prasad. The Magistrate took cognizance on the charge sheet filed against Nekpal and Siyaram and the case being triable by the Court of Sessions, committed it to the Sessions Court, where it was registered as S.T. No. 935 of 2013 and the trial proceeded.

During trial, O.P. No. 2 was examined as PW1 and the prosecutrix was examined as PW2. Both these witnesses fully supported the prosecution case in their statements before the trial court. True copies of the statements of both these witnesses have been collectively filed as Annexure no. CA4 to the counter affidavit, showing that the prosecutrix has categorically stated that on the fateful day at about 8.00 P.M. when she had gone to the fields to attend the natural call, Chandrapal and Ram Prasad came there. They pressed her mouth, lifted her, forcibly made her sit on their motorcycle and drove away. After some distance accused Nekpal and Siyaram also joined them on another motorcycle. Thereafter all of them took her to Punjab. At Punjab, they kept her in a rented room. She has further stated that first of all accused Ram Prasad committed rape on her, thereafter Chandrapal and after Chandrapal, Nekpal and Siyaram also committed rape on her. They kept her in that room for about four months and continued to commit rape with her. After four months the applicants handed her over to the police. She got pregnant as a result of rape. She has given birth to a child without getting married to any one.

PW1- Lajjawati, her mother, also supported the prosecution story in her statement recorded during trial.

After the evidence of PW1 and PW2 i.e. the informant and the prosecutrix, an application under section 319 Cr.P.C. was moved by the prosecution, which was allowed and the learned Additional Sessions Judge, by a detailed order dated 1.5.2014, summoned the applicants Ram Prasad and Chandrapal under section 319 Cr.P.C. to face trial with other accused persons.

Aggrieved by the aforesaid order passed by the trial court under section 319 Cr.P.C. the applicants filed Criminal Revision No. 1624 of 2013 before this court, which was dismissed vide order dated 2.6.2014 passed by a coordinate Bench of this court (the copy whereof has annexed as Annexure no. CA4 to the counter affidavit).

However, the applicants instead of filing an S.L.P. against the order passed by this court on 2.6.2014 have again approached this court by means of the instant application u/s 482 Cr.P.C. with the prayer to quash the entire proceedings of S.T. No. 935 of 2013.

The learned counsel for the applicants has filed written submissions in support of the application. He has contended that O.P. No. 2 had no right to file a second application under section 156(3) Cr.P.C. on the basis of the same facts on which her husband Ram Charan Maurya had already moved an application u/s 156(3) Cr.P.C. earlier, which was dismissed by the court below as not pressed. The learned counsel has contended that after rejection of the first application u/s 156(3) Cr.P.C. the second application on the same facts is not maintainable. The learned counsel has vehemently contended that both the applications filed by Ram Charan Maurya and Lajjawati (O.P. No. 2) in this case are complaints within the meaning of section 2(d) Cr.P.C. and as both the applications are related to the same incident dated 23.4.2013 and are against the same accused persons, therefore, the second application filed by O.P. No. 2, which is a second complaint in respect of the same cause of action being legally barred, is not maintainable in view of the three Judges decision of the Hon'ble Supreme Court reported in AIR 1962 SC 876, Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar.

Per contra learned AGA and learned counsel for O.P. No. 2 have vehemently opposed the application. The preliminary objection raised by them is that the applicants have not come to this court with clean hands. The instant application u/s 482 Cr.P.C. has been filed by the applicants before this court for the same cause of action. The applicants had earlier preferred a criminal revision before this court against the summoning order passed on the application u/s 319 Cr.P.C., which was dismissed on merit by this court vide order dated 2.6.2014, which has become final as the same was never challenged by the revisionist before the Hon'ble Supreme Court. However, after failing in their first attempt, due to dismissal of their revision, the applicants, by changing the language of the prayer, have again approached this court for the same relief. The learned counsel for O.P. No. 2 has submitted that the applicants in the instant application application have prayed to quash the entire proceedings of the sessions trial, which includes the summoning of the applicants under section u/s 319 Cr.P.C. and which has already been upheld by this court in the aforesaid revision. The learned counsel for O.P. No. 2 has prayed that under these circumstances, this application is liable to be dismissed with heavy costs and proceedings under section 340 Cr.P.C. should be initiated against the applicants for misrepresentation and for playing fraud upon this court.

Considered the rival submissions of the parties.

All the arguments advanced by learned counsel for the applicants appear to be totally misconceived and having no force in view of the settled legal position.

The Hon'ble Supreme Court in the case of Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar, AIR 1962 SC 876, cited by the learned counsel for the applicants, has laid down the law with regard to maintainability of second complaint as under:-

"There is nothing in law which prohibits the entertainment of a second complaint on the same allegations, when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure. As, however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is "sufficient ground for proceeding" with the second complaint, when a previous complaint on the same allegations was dismissed under section 203. The test to determine the exceptional circumstances are (1) manifest error, (2) manifest miscarriage of justice and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings."

The facts of the present case clearly indicates that the complainant Smt. Lajjawati, in second complaint filed by her, has made clear allegations that as her husband and daughter were abducted by the accused persons in connivance with the police. They were threatened and forced to make wrong statements before the Magistrate that they do not want to press the application. It is also evident that the learned trial court after finding that there were clear allegations against the applicants in the statement of the prosecutrix recorded u/s 164 Cr.P.C. and during trial, the prosecutrix has categorically stated that the applicants abducted her and committed rape with her for four months while keeping her detained in a rented room, summoned them by exercising power under section 319 Cr.P.C. The summoning of the applicants under section 319 Cr.P.C. was challenged by way of a criminal revision before this court, which was dismissed by this court on merits. The order dated 2.6.2014 passed by this court has attained finality because no SLP was filed by the applicants against the aforesaid order. However, the applicants for the same relief and only by changing the language of their prayer, have again come to this court. They have prayed to quash the entire proceedings of the sessions trial. In case the entire proceedings of the sessions trial is quashed, it will amount to quashing of the aforesaid order of this court dated 2.6.2014 whereby this court has upheld the legality and correctness of the order summoning the applicants u/s 319 Cr.P.C.

This court is neither an appellate nor a reviewing authority against the order passed in the criminal revision by a coordinate Bench of this court. As per section 362 Cr.P.C. a criminal court is not authorised to review or recall or alter its own order. Thus, this court cannot recall, review or alter the order passed on 2.6.2014 in Criminal Revision No. 1624 of 2014. The aforesaid order being remained unchallenged has attained finality. Under these circumstances this application is liable to be dismissed with heavy costs.

Accordingly, the instant application is dismissed with a cost of Rs. ten thousand, imposed on each applicant. The applicants shall deposit the amount of cost in the court where the trial is pending within one month from today. In case they fail to deposit it within the time prescribed, the court below shall recover it from them as arrears of land revenue. The total amount of Rs. 20,000/-, so recovered from the applicants shall be paid to the prosecutrix.

A copy of this order be sent to the Special Judge (POCSO Act), Budaun, to ensure compliance.

Order Date :-20.9.2016

Pcl