Umesh Kumar @ Umesh Chandra & ... vs State Of U.P. & Another
2018 Latest Caselaw 3087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 2800 of 2018
 

 
Applicant :- Umesh Kumar @ Umesh Chandra & Another
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Jai Pal Singh
 
Counsel for Opposite Party :- Govt. Advocate,Sameer Kumar Upadhyay
 

 
Hon'ble Dinesh Kumar Singh,J.

1. This petition under Section 482 Cr.P.C. has been filed for quashing of the summoning order dated 09.08.2016 issued in Complaint Case No.2866 of 2015, Police Station Jaitpur, District Barabanki and non bailable warrants dated 02.08.2017 as well as order dated 16.03.2018 passed in Criminal Revision No.114 of 2016.

2. Late Shiv Kumari, sister of Raj Kumar Verma was married to Ashish Kumar, brother of Poonam Verma, respondent No.2. Smt. Pushpa w/o Raj Narayan Verma and Smt. Nisha w/o Ashok Verma (petitioner No.2) are the sisters of petitioner No.1. Shiv Kumari died on 06.10.2014. Raj Narayan lodged the FIR at Case Crime No.286 of 2014 under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act against six accused including respondent No.2.

3. The police after investigation of the case, however, submitted charge-sheet against Ashish Kumar Verma, husband of Shiv Kumari and her mother-in-law. It is said that petitioner Nos.1 and 2 helped Rajkumar Verma in pursuing Case Crime No.286 of 2014(supra). After framing of the charge, Sessions Trial No.33 of 2015, the statements of P.W.-1, Rajkumar Verma and P.W.-2, Rajrani @ Jagrani have been recorded.

4. On 02.06.2017, Rajkumar Verma filed an application under Section 319 Cr.P.C. for summoning the four persons named in the FIR but against them charge-sheet was not filed. Learned Trial Court allowed this application vide order dated 20.07.2017 and summoned the accused to face the trial. The aforesaid four accused have appeared and are facing trial. They have, however, been enlarged on bail vide order dated 23.09.2017.

5. It has also been submitted that the accused including respondent No.2 have been exerting pressure on the petitioners as well as a Rajkumar Verma to compromise and settle the case. When they did not agree, respondent No.2 had filed an application under Section 156(3) Cr.P.C. before the learned Chief Judicial Magistrate, Barabanki alleging that on 12.02.2015 at 7:00 P.M., respondent No.2 was returning from her maternal home and waiting for public transport near Police Station Jaitpur, the petitioners reached there on a motorcycle and offered their help to drop her at her residence. Respondent No.2 sat on the motorcycle of the petitioners but instead of dropping her at her residence, they on the way took her to a grove near Government school and sexually assaulted her. The police did not register a case and, therefore, the application under section 156(3) Cr.P.C. was filed. In pursuance of the order passed by learned Magistrate an FIR dated 9.05.2015 at Case Crime No.118 of 2015 under Sections 376D and 506 IPC was registered against the petitioners.

6. Respondent No.2 was thereafter medically examined on 27.05.2015. No external or internal injury could be noticed, no mark of any injury was found on the body of respondent No.2. Vaginal swab was taken for examination. In the Pathological examination of vaginal smear slide, no spermatozoa or gonnoccocia was seen. In the opinion of the doctor, there was no definite evidence of sexual intercourse. Respondent No. 2 was found to be around 21 years of age.

7. The investigating officer after recording the statements of the witnesses and on completing the investigation submitted final report in Case Crime No.118 of 2015 and exonerated the petitioners.

8. Respondent No.2 filed a protest petition against the submission of final report in favour of the petitioners. Learned magistrate treated the protest petition as complaint case and statement of the prosecutrix was recorded under Section 200 Cr.P.C. and thereafter statements of witnesses, Ganesh Kumar, Ayush Kumar and Shiv Charan Verma under Section 202 Cr.P.C. were recorded. Vide order dated 09.08.2016, Additional Chief Judicial Magistrate, Barabanki summoned the petitioners under Section 376-D IPC in Complaint Case No.2866 of 2015. On 02.08.2017. Non bailable warrants have been issued against the petitioners.

9. The petitioners thereafter filed a criminal revision petition before the learned Sessions Judge, Barabanki impugning the order dated 09.08.2016 as well as the non-bailable warrants dated 02.08.2017. However, the learned Sessions Judge, Barabanki rejected the revision petition vide his order dated 16.03.2018.

10. Heard Sri Jai Pal Singh, learned counsel for the petitioners, Sri Sameer Kumar Upadhyay, learned counsel for the respondent No.2 and learned Additional Government Advocate for the State.

11. Learned counsel appearing for the petitioners submits that the order passed by learned Magistrate dated 09.08.2016 and the proceedings in Complaint Case No.2866 of 2015 are illegal and in abuse of the process of the Court and law.

12. Respondent No.2 is an accused in Sessions Trial No.33 of 2015 under Sections 498A and 304B IPC and Section 3/4 of the Dowry Prohibition Act. She is the sister of accused, Ashish Kumar, husband of the deceased, Shiv Kumari. Ashish Kumar is in jail. Respondent No.2 has been summoned under Section 319 Cr.P.C. to face trial in the aforesaid case. Respondent No.2 and his family members have been pressing the petitioners and Raj Kumar Verma to compromise the case and when they did not agree to compromise the case, false, concocted and imaginary allegations were made against the petitioners in an application under Section 156 (3) Cr.P.C. However, the police submitted the final report in favour of the petitioners after thorough investigation and finding the allegations totally false and unsubstantiated.

13. Learned counsel for the petitioners submits that the learned Magistrate without considering the facts and circumstances of the case and medical report of the prosecutrix and without appreciating the statement of the prosecutrix and P.W.-1 to P.W.-3 in a mechanical manner has passed the impugned order summoning the accused under Sections 376D and 506 IPC.

14. Learned counsel appearing for the petitioners further submits that continuance of the proceedings in complaint Case No.2866 of 2015 is gross abuse of the process of the Court inasmuch as the impugned proceedings have been instituted with malicious intent for ulterior motive and for oblique purposes for wrecking vengeance on the petitioners with a view to spite the petitioners. Therefore, the whole proceedings in complaint case No.2866 of 2015 should be quashed to prevent the abuse of the process of the Court and in order to secure the ends of justice.

15. I have considered the submissions of learned counsels for the petitioners as well as respondents.

16. The allegations of respondent No.2 against petitioners do not inspire confidence. Respondent No.2, brother and her mother along with other family members are the accused under Sections 498-A and 304-B IPC and Section 3/4 Dowry Prohibition Act. Her brother is in jail. Respondent No.2 was initially exonerated in the report submitted by the police but she has been summoned under Section 319 Cr.P.C. When there is enmity between the parties, it would be highly improbable that she would sit on a motorcycle of the petitioners and accept the offer of help to drop her at her residence. The statements of the witnesses also do not inspire any confidence. They are not the eye witnesses of the incident but they are merely hearsay witnesses. The evidence of the prosecutrix itself does not inspire confidence as it does not get corroborated by medical evidence.

17. Learned Magistrate has not considered the medical evidence and other circumstance of the case. Without considering the medical evidence and the statement of the prosecutrix and witnesses in correct perspective, the learned Magistrate has summoned the accused in a mechanical manner. From the facts narrated hereinabove, it is no manner of doubt that the proceedings of Complaint Case No.2866 of 2015 have been instituted maliciously with an ulterior motive for wrecking vengeance on the petitioners with a view to spite them for personal grudge of respondent No.2 who is an accused in Sessions Trial No.33 of 2015.

18. The powers under Section 482 Cr.P.C. have to be exercised ex debito justitiae for doing real and substantial justice. It is true that the powers under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution but the Court should not be hesitant to quash the proceedings if it finds that the criminal proceedings instituted are in abuse of process of the Court.

19. In the present case, it cannot be ruled out that respondent No.2 has instituted criminal proceedings against the petitioners with a view to coarse them for compromise in Sessions Trial No.33 of 2015. The allegations leveled by respondent No.2 against the petitioners were found to be false by the police and the police submitted the final report and exonerated the petitioners. Learned Magistrate without considering the facts, circumstances of the case and evidence in proper perspective has passed the impugned order 09.08.2016.

20. Considering the entirety of the facts of the case, the medical report, the statement of the prosecutrix herself and witnesses, I am of the view that continuance of the proceedings in Complaint Case No.2866 would be in gross abuse of the process of the Court and law. Therefore, I quash the proceedings in Complaint Case No.2866 of 2015, Police Station Jaitpur, District Barabanki and non bailable warrants dated 02.08.2017 as well as order dated 16.03.2018 passed in Criminal Revision No.114 of 2016.

21. Thus, the present petition is allowed.

Order Date :- 8.10.2018

prateek