Smt. Fatma vs State Of U.P. And Anr.
2018 Latest Caselaw 9 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.- 63						AFR/RESERVED
 

 
Case :- APPLICATION U/S 482 No. - 35920 of 2012
 

 
Applicant :- Smt. Fatma
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Nisar Uddin,Moeez Uddin
 
Counsel for Opposite Party :- Govt. Advocate,Ram Chandra Tripathi
 

 
Hon'ble Amar Singh Chauhan,J.

Heard learned counsel for the applicant, learned AGA and perused the material on record. None appears on behalf of the opposite party no. 2 even in the revised list.

The applicant, Smt. Fatma, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the orders dated 30.4.2011 passed by Additional Sessions Judge, Court No. IV, Bulandshahr in Criminal Revision No. 69 of 2011 (Vakil @ Illi Vs. State of U.P. and another) and 4.8.2012 passed by Additional Chief Judicial Magistrate, Court No. 2, Bulandshahr in Criminal Case No. 1029 of 2011 (State Vs. Vakil @ Illi) arising out of Case Crime No. 371 of 2008 under Sections 376, 452 and 328 IPC, P.S. Shikarpur, District Bulandshahr by which the case was dropped by accepting the final report.

Brief facts which are requisite to be stated for the adjudication of this application are that an FIR was lodged by the applicant, Smt. Fatma against the opposite party no. 2 with the allegation that when her minor daughter was at the house alone, the opposite party No. 2, Vakil @ Illi entered the house and gave poisonous biscuit to eat her and after taking that biscuit she became unconscious and in the stage of her unconsciousness, the opposite party no. 2 has committed the rape upon her. The case was registered being Case Crime No. 371 of 2008 under Sections 376, 452 and 328 IPC, P.S. Shikarpur, District Bulandshahr. The investigating officer after concluding the investigation submitted the final report against which protest petition was filed by the applicant which was accepted and final report was rejected. Consequently, the cognizance was also taken on 4.3.2009 against which the opposite party no. 2 filed criminal revision which was allowed and case was remanded with the direction that the learned ACJM after accepting the final report case be dropped and consigned to record. In pursuance of the direction given by the learned Additional Sessions Judge, the learned ACJM accepted the final report and closed the case against the opposite party no. 2.

Feeling aggrieved, the applicant/informant moved this application before this Court.

It is submitted by the learned counsel for the applicant that her daughter was alone in her house when opposite party no. 2 entered the house and gave poisonous biscuit to eat and on being taken the biscuit, she became unconscious and rape was committed by the opposite party no. 2. It is further submitted that in the ossification test report, she was found 16 years old and hymen was found torn even then the investigating officer submitted the final report against which the protest petition was filed. The learned ACJM after perusing the case diary vide order dated 4.3.2009 under Section 190(1)(B) Cr.P.C. summon the accused-opposite party no. 2 but the Additional Sessions Judge after reappraisal of evidence set aside the order of cognizance and issued a direction to the ACJM to close the case after accepting the final report which is not justified and against the evidence on record. In pursuance of the order of the revisional court, the ACJM vide its order dated 4.8.2012 without applying judicial mind accepted the final report and dropped the proceedings.

Per contra, learned AGA has contended that in this case minor victim was raped by the opposite party no. 2 who in her statement supported the prosecution version and medical evidence is also corroborated the prosecution story.

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection."

In the case in hand, the FIR was lodged by the applicant with the allegation that her minor daughter was alone in her house when opposite party no. 2 entered her house and gave poisonous biscuit to eat her and rape was committed upon her. In the ossification test report, she was found 16 years old and hymen was found torn but the investigating officer submitted the final report which was rejected by the Judicial Magistrate on protest petition and cognizance was taken under Section 190(1)(B) Cr.P.C on 4.3.2009 against which a revision was filed by the opposite party no. 2. The revisional court after reappraisal of the evidence set aside the order of cognizance and case was remanded with the direction that final report be accepted and no cognizance would be taken. In pursuance of the order passed by the Additional Sessions Judge, the concerned Magistrate accepted the final report and closed the case. Earlier on 24.3.2009, the Judicial Magistrate concerned on the basis of the material collected by the investigating officer accepted the protest petition and after rejected the final report, summon the accused. The revisional court assuming the jurisdiction of the trial court reassess the evidence whereas it will be beyond its power and jurisdiction to reassess the evidence and so on such reassessment to arrive at a finding which is at variance with the finding recorded by the Magistrate and appraisal of the evidence is not permissible in revision. The revisional jurisdiction cannot be exercised to substitute its own view with that of the Magistrate on a question of fact. Unless the finding of the court below is shown to be perverse or untenable in law or is based on irrelevant evidence or ignoring irrelevant evidence, it is impermissible to interfere with the order of the court below in revisional jurisdiction. Sessions Judge cannot interfere unless there is a capriciousness on the part of the Magistrate in the assessment of the evidence. It cannot interfere with the order if on the same set of evidence another view different from that taken by the Magistrate is possible.

In view of what has been submitted and discussed above, the application has substance and liable to be allowed.

Accordingly, the application is allowed and the orders dated 30.4.2011 passed by Additional Sessions Judge, Court No. IV, Bulandshahr in Criminal Revision No. 69 of 2011 (Vakil @ Illi Vs. State of U.P. and another) as well as 4.8.2012 passed by Additional Chief Judicial Magistrate, Court No. 2, Bulandshahr in Criminal Case No. 1029 of 2011 (State Vs. Vakil @ Illi) arising out of Case Crime No. 371 of 2008 under Sections 376, 452 and 328 IPC, P.S. Shikarpur, District Bulandshahr are hereby set aside and the order dated 24.3.2009 passed by Judicial Magistrate, Bulandshahr whereby cognizance was taken is hereby affirmed. Trial will go on at its own course.

Office is directed to communicate this order to the court concerned within a week.

Order Date :- 17.4.2018

AKK