Mohan @ Kamleshwar vs State Of U.P. And Anr
2018 Latest Caselaw 3573 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 

 
Case :- APPLICATION U/S 482 No. - 32802 of 2018
 

 
Applicant :- Mohan @ Kamleshwar
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Vipin Kumar Singh
 
Counsel for Opposite Party :- G.A., ,Rajesh Kumar Dubey
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri R.P.S.Chauhan assisted by Vipin Kumar Singh, learned counsel for the applicant, Rajesh Kumar Dubey, learned counsel for complainant and learned AGA for the State and perused the record.

By means of the present 482 Cr.P.C. the applicant has invoked the inherent jurisdiction of this Court to set aside/ quash the impugned charge sheet no. 121A-2015 dated 14.06.2018 as case crime no. 511 of 2015, under Section 376 D IPC, P.S. Baghauchghat, District Deoria as well as entire proceedings of case no. 871 of 2018, under Section 376D IPC pending in the Court of A.C.J.M., Court No. 19, Deoria.

Later on an amendment application was filed in the present 482 Cr.P.C. application by the applicant, to permit the applicant for amending/ adding the prayer as paragraph 3 of the affidavit accompanying the amendment application, which reads as under :-

"It is also further prayed that this Hon'ble Court may graciously pleased to quash the impugned order dated 10.05.2017 passed by learned Additional Chief Judicial Magistrate, Court No.19, Deoria in Case No. 2107 of 2016 ( State Vs. Mohan @ Kamleshwar and others), Annexure No.9 to the application"

This amendment application was eventually allowed by order dated 09.10.2018. Learned counsel for the applicant was permitted to assail the orders of learned A.C.J.M., Court No.19, Deoria dated 10.05.2018 by which he has permitted to carry out further investigation.

Pursuant to the impunged order dated 10.05.2017, the entire exercise of further investigtion was concluded and the police after concluding further investigation has submitted supplementary charge sheet on 14.06.2018 as charge sheet no. 121A of 2015 under Section 376D IPC , P.S. Baghauchghat, District Deoria and learned Magistrate on 18.06.2018 has taken congizance.

After this, the present 482 Cr.P.C. application was filed by the applicant one of the accused Mohan @ Kamleshwar with the prayer:-

"It is therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow the instant application and set aside/ quash the impugned charge sheet no. 121A/2015 dated 14.06.2018 in connection with the case crime no. 511 of 2015, under Section 376D IPC, Police Station Baghauchghat, District Deoria as well as the entire proceedings of case no. 871 of 2018, in case crime no. 511 of 2015, under Section 376D IPC, Police Station Baghauchghat, District Deoria pending in the Court of A.C.J.M., Court No. 19, Deoria as the same arise out of the charge sheet no. 121A/2015 dated 14.06.2018.

It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of case no. 871 of 2018, in case crime no. 511 of 2015, under Section 376D IPC, Police Station Baghauchghat, District Deoria pending in the Court of A.C.J.M., Court No. 19, Deoria during the pendency of the present application before this Hon'ble Court, or to pass such other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury.

It is also further prayed that this Hon'ble Court may graciously be pleased to quash the impugned order dated 10.05.2017 passed by learned Additional Chief Judicial Magistrate, Court No.19 Deoria in case no. 2107 of 2016 (State Vs. Mohan @ Kamleshwar and other) (Annexure No. 9 to the application)."

In the backdrop of the case, learned counsel for the applicant has drawn the attention of the Court that prosecutrix for the incident on 27.07.2015 has got an FIR registered on 03.08.2015 under Section 147, 376D, 325, 323, 392, 504 and 506 IPC with the allegation that as many as seven persons named as accused persons including the present applicant on 27.07.2015 around 3.30 p.m. during the day while she was in her agricultural field started abusing filthy and disrobed her and applicant along with few other accused person has outraged her modesty after assaulting her. Thus it is clear, that from the day one she has made a allegation of gang rape by applicant and few others upon her.

In 161 Cr.P.C. statement she has fully supported the prosecution case but unable to give a satisfactory reply for lodging the delayed FIR. She was medically examined besides his here is injury report of Sri Ram Iqbal and Sri Bal Shastri are also on record,

Learned counsel for the applicant has annexed number of 161 Cr.P.C. statements of independent witnesses who have not supported the theory of rape upon her. The doctor too has denied that she did not disclose anything about rape while she was medically examined. However, in 164 Cr.P.C. statement she again with all vehemence disclosed that fact that she was disrobed and her modesty was outraged by them. However, the police after investigation on 20.11.2015 has submitted charge sheet under Section 147, 325, 323, 504 and 506 IPC dropping Section 376D and Section 392 IPC from the array of the sections in which the FIR was registered.

This charge sheet and the learned Magistrate vide order dated 18.07.2016 has taken cognizance of the offences. Aggrieved by this victim has moved an application for further investigation in which she has revealed certain allegations against the Investigating Officer and has prayed from the concerned Magistrate that under the influenced of someone the police has dropped the Section 376D IPC and Section 392 IPC. The matter should be further investigated. She has further alleged in the application that though she has disclosed the fact of rape upon and asked the Investigating Officer to get her medically examined in some Govt. Hospital for her medical check up but same was ignored by the Investigating Officer. Lerned ACJM, Court No. 19, Deoria. After giving a thoughtful consideration over the entire facts and circumstances of the case has directed the police to carry out the further investigation by the order dated 10.05.2017.

Pursuant to this order dated 10.05.2017, the police has further investigated into the matter and has recorded the statement under Section 161 Cr.P.C. of the informant Bal Shastri and Ram Iqbal who have supported the prosecution case, not only this there is 164 Cr.P.C. statement of Ram Iqbal and Bal Shahstri who thoroughly supported the prosecution case. Taking into account all these material. Lateron on 14.06.2018, the police has submitted supplementary charge sheet under Section 376D IPC and the learned Magistrate by order dated 18.06.2018 has taken cognizance of the offences under Section 376D IPC against the applicant and Hari Lal.

Learned counsel for the applicant submits that entire examination carried out by the Investigating Officer is barred by law laid down in paragraph 47 of the judgment of Hon'ble Apex Court in the recent decision in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and others reported in 2017(4)SC177, which reads as under:-

"47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand."

I am in complete agreement with the ratio laid down by Hon'ble Apex Court in above mentioned case but facts of the present case is completely different and the ratio would be of no help to the applicants because pursuant to the order of learned Magistrate dated 10.05.2017 the entire exercise of further investigation was acted upon whereby the police has collected sufficient material to indict the applicant for the allegation of gang rape and subsequently filed a supplementary charge sheet no. 121A of 2015 under Section 376D IPC. Thereafter the learned Magistrate has taken congnizance of the offence under Section 376D IPC. Much water has been passed since 10.05.2017. The police has carried out further investigation and supplementary charge sheet has been filed to which the learned Magistrate has taken cognizance. Now at this stage the clock cannot be reverted. Moreover it is given to understad by the learned counsel for the applicant that applicant has been bailed out in additional Section 376D IPC.

Thus in totality of circumstances this 482 Cr.P.C. application is devoid of merit and is accordingly dismissed.

Order Date :- 12.11.2018

Abhishek Sri.