Furqan & Another vs State Of U.P. & Another
2017 Latest Caselaw 4113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved	
 
                                                                          A.F.R.                                                                                         Case :- APPLICATION U/S 482 No. - 22953 of 2017
 
Applicants :- Furqan & Another
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicants :- Mohd Imran Khan
 
Counsel for Opposite Party :- G.A.,Mukhtar Alam
 

 
Hon'ble Krishna Pratap Singh,J.

Heard Shri Mohammad Imran Khan, learned counsel for the applicants, Shri Mukhtar Alam, learned counsel appearing for opposite party No. 2 and learned Additional Government Advocate representing the State.

By means of this application, the applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. praying for quashing of the order dated 05.7.2017 passed by the Additional District and Sessions Judge, Court No. 7, Bijnor dismissing Criminal Revision No. 236 of 2016, which was filed against the order dated 26.4.2016 passed by the learned Civil Judge (JD)/Judicial Magistrate, Najibabad, Bijnor in Complaint Case No. 916 of 2016 whereby the applicants have been summoned under sections 376-D and 506 IPC, PS Nahtaur, district Bijnor.

The facts which are requisite to be stated for adjudication of this revision are that a complaint was filed by Tasleem Ahmad, opposite party No. 2 in the court of Judicial Magistrate, Najibabad, Bijnor arraigning the applicants Furqan, Mohammad Shabi and one Mahfooz Khan as accused stating therein that all the accused are friends and doing the business of sending unemployed persons to abroad and since the accused belong to Samajwadi Party, hence they do not care of law and order. They are also having muscle powers, whereas the complainant is a very honest, poor and law abiding citizen. The complainant works as Chaukidar in Muslim Fund at Shercot. The complainant along with his wife, children and his so-called sister (herein after referred as "the victim") came to Najibabad to attend the funeral. As the Sasural of the complainant is also situated at Mohalla Rampura, Najibabad, the complainant is well acquainted with the accused persons. The accused also used to come to the house of the complainant and know the victim very well. In fact the husband of the victim died three years ago and the complainant assist her financially. She also often comes to Shercot. She earns her livelihood by making brush. For sending his sons Atiqur Rahman and Azim Uddin to abroad, the complainant was in touch with the accused-applicants and has also given Rs. 100,000/- (rupees one lac) to the applicants and it was agreed upon that the accused will send both the sons of the complainant to abroad at Rs. 200,000/-. The victim was also in touch with the accused-applicants. On 17.4.2016 at about 6.00 PM, accused Furqan, Mahfooz Khan and Mohammad Shabi took the victim, in the presence of his family members, on the pretext of preparing documents for sending the son of victim to abroad and took her to Sultana Daku Ka Qila at village Mahawatpur and committed rape on her one by one. They also committed unnatural sex with the victim against her wishes and also made video of the same. Accused also threatened her of dire consequences if she reports this matter.

In spite of best efforts of the complainant, when the report was not lodged by the police, the complainant filed a complaint in the Court of Judicial Magistrate, Najibabad, Bijnor. In support of his case, the complainant has examined himself under section 200 Cr.P.C and witnesses victim and Atiqur Rahman under section 202 Cr.P.C.

Learned Magistrate on being satisfied, summoned the applicants under sections 376-D and 506 IPC by the impugned order. Being aggrieved and dissatisfied with the summoning order, the applicants have preferred a Criminal Revision No. 236 of 2016, which has also been dismissed on 05.7.2017 by the learned Additional District and Sessions Judge, Court No. 7, Bijnor.

Learned counsel for the applicants submits that the applicants have falsely been implicated in this case. Learned lower court as well as learned appellate court have passed the orders without application of mind. Learned counsel for the applicants further contended that the allegations are absolutely unbelievable as the place where the rape was alleged to have been committed by the accused-applicants is very densely populated and it is not possible to commit rape there as mentioned in the complaint. The complaint has been lodged as a counter blast to the earlier FIR lodged by the wife of applicant No. 1 against Saleem, Faiyyaz, Vishal and Talib at Case Crime No. 448 of 2014, under sections 376-D, 363, 120-B, 506, 366 IPC at police station Shercot, district Hapur.

Learned counsel for the applicants has further submitted that the complainant Tasleem Ahmad himself has filed an affidavit in complaint case No. 916 of 2016 in the Court of Judicial Magistrate, Najibabad stating therein that Salim, Faiyyaz and Talib took him to the court for being a witness of an agreement and got his signature fraudulently on a paper which was already typed. It was also mentioned in the said affidavit that he has not filed the complaint against Furqan, Mahfooz and Mohammad Shabi and that he has no concern with the victim. It was also mentioned in the affidavit that victim was not taken away by Furqan, Mahfooz and Mohammad Shabi. At the end, it was mentioned in the complaint that he does not want any action to be taken against the accused-applicants.

Per contra learned Additional Government Advocate and learned counsel for the complainant supported the judgement of the lower court by contending that both the orders are well reasoned and do not require any interference by this Court. It is further contended that the place where rape was alleged to have been committed is an isolated one and people do not visit there and there is no question for the people to visit there in the evening at 6.00 PM when rape was alleged to have been committed. It is also submitted by the learned counsel for the complainant that the affidavit of the complainant Tasleem Ahmad was forged and in this connection an FIR has also been lodged by Atiqur Rahman, son of the complainant Taslim Ahmad at Case Crime No. 834 of 2016, under sections 420, 467, 468, 504, 506 IPC, Police Station Kotwali Shahar, district Bijnor stating therein that the accused applicants are pressurizing his father and the victim for compromise. It was also mentioned in the FIR that the accused-applicants have filed the forged affidavit in Complaint Case No. 916 of 2016.

The procedure to be followed in respect of the complaints to the Magistrate under Sections 190(1)(a) Cr.P.C. is given in Chapter XV of the Code. Sections 200 and 202 Cr.P.C. as they now stand deserves to be extracted. They read as follows:

Section 200. Examination of the complainant:- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192,

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Section 202: Postponement of issue of process- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made--

a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

b) where the complaitn has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

The enquiry under Section 200 or 202 Cr.P.C. is to be undertaken by a Court to decide the course of action which the court has to follow at the end of such enquiry. The enquiry under Section 202 Cr.P.C. follows the enquiry under section 200 Cr.P.C. and at the end of such enquiries, the crucial question to be followed is whether the complaint deserves to be dismissed under section 203 Cr.P.C. or whether process deserves to be issued under Section 204 Cr.P.C.

Section 203 and 204 Cr.P.C. reads as under:

203. Dismissal of Complaint:- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

204. Issue of process:- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself), some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87".

It may be apposite to advert to the nature, scope, quality and contours of the jurisdiction of the Magistrate under sections 203/204 Cr.P.C. At the threshold, the purpose is twofold. As it has often been repeated, a bona fide complainant who has a genuine grievance must be granted access to the Court and given a further and fuller opportunity to substantiate the allegations made by him against the suspected accused. He is not expected to prove his case to the hilt at that stage. Whether conviction would follow or the accused will be entitled for acquittal is not a factor to be considered at the stage of section 203/204 Cr.P.C. Whether there is sufficient ground for proceeding is the only short and limited question to be considered at the stage of section 203/204 Cr.P.C. But at the same time vexatious complaint initiating unjustified proceeding against a suspected accused and trying to abuse and exploit the criminal adjudicatory process, who does not have a satisfactory case must be shown the door at that stage itself. He must not be permitted to proceed further and cause harassment and prejudice to a person, who does not deserve to suffer such trauma. This is the mandate of section 203/204 Cr.P.C. Enquiry under section 200 and 202 Cr.P.C are geared and catered to answer this basic question as to whether there is sufficient ground to proceed against the suspected accused or not.

The expression "sufficient ground" in section 203 Cr.P.C. points exclusively to the facts which the complainant brings to the knowledge of the Magistrate for establishing a prima facie case against the suspected accused. The decision whether there is sufficient ground must be reached by the exercise of discretion based upon judicial consideration. A Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and(c) if he finds that there is no sufficient ground for proceeding.

Hon'ble Supreme Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose, (1964) 1 SCR 639, has held that "where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy."

In Kewal Krishan Vs. Suraj Bhan (1980) Supp SCC 499, Hon'ble Supreme Court examined the scheme of Sections 202 to 204 Cr.P.C and held:

"At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges."

In the present case, there were serious allegations against the applicants that they took away the victim on the pretext of preparing documents for sending her son to abroad and committed gang rape on her against her wishes and also threatened her of dire consequences.

The contention of the learned counsel for the applicants that the complainant has filed an affidavit in complaint case (in which the applicants were summoned) that his signature has been obtained fraudulently and that he has not filed the complaint, has no leg to stand. If, for the sake of argument, the case of the applicants that complainant has filed the affidavit denying that he has filed the complaint is taken as true, even then summoning order cannot be faulted because the victim herself in her statement recorded under Section 202 Cr.P.C. has mentioned that rape was committed upon her by the applicants one by one against her wishes. She further stated that she was also subjected to unnatural intercourse by the applicant Furqan. The applicants also made video of the same.

From the perusal of the complaint as well as statements of the witnesses, it prima facie transpires that the crime alleged to have been committed by the accused-applicants.

Hon'ble Supreme Court in State of Rajasthan Vs. Shambhu Kewat, (2014) 4 SCC 149 has held in paragraph 15 as under:

15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. High Court was not right in thinking that it was only an injury to the person and since the accused persons had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large."

At the initial stage of summoning, only prima facie case is to be seen. Therefore, looking into the prima facie evidence on record, it cannot be said that no offence is made out against the applicants. The legal position is well settled that if an offence is disclosed, the Courts normally will not interfere. So far as the inherent powers of the Court are concerned, it has been reiterated by Hon'ble Supreme Court in catena of decisions that while exercising its inherent powers under Section 482 Cr.P.C., the Court would not embark upon an enquiry whether the allegations in the complaint are to be established by the evidence or not. High Court would have to proceed entirely on the basis of allegations made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness or otherwise of the allegations. From the material available on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicants. All the submissions made at the Bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court under section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the case of R.P. Kapoor Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1991 (28) ACC 111 (SC), State of Bihar Vs. P.P. Sharma, 1991 (Suppl) ACC 493 and M/s Zandu Pharmaceutical Works Limited Vs. Mohd Sharaful Haque and others, 2005 (51) ACC 188 (SC).

Further, disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got the right of discharge under the relevant provisions of Code of Criminal Procedure, as the case may be, through a proper application for the said purpose and they are free to raise all the submissions in the said discharge application before the trial court.

In the light of the above observations of Hon'ble Supreme Court, I have gone through the memo of complaint, affidavit filed in support of the complaint, summoning order and the revisional order. The learned Magistrate after noticing that there was prima facie sufficient admissible evidence on record indicating the complicity of the applicants in the commission of the offence, summoned the applicants to face the trial under Section 376-D and 506 IPC, which order was affirmed by the learned revisional court.

In view of what has been indicated herein above, I find that the impugned order does not suffer from any illegality or infirmity requiring any interference by this court. Accordingly, application under section 482 Cr.P.C. is rejected.

Order Date :- 08.09.2017

Priti Sharma