Dhananjay vs State Of Up And Another
2019 Latest Caselaw 5416 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 72
 

 
Case :- APPLICATION U/S 482 No. - 24336 of 2019
 

 
Applicant :- Dhananjay
 
Opposite Party :- State Of Up And Another
 
Counsel for Applicant :- Dinesh Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Dinesh Rai, learned counsel for the applicant and learned A.G.A. for the State-respondents.

The applicant in the instant petition under section 482 Cr.P.C. is aggrieved by the summoning order dated 30.1.2019 passed by Ist Additional Session Judge, Ballia, in Complaint Case No. 74 of 2018 (Shiv Bachan Vs. Dhananjay), by which while taking cognizance of the offences under Sections 354, 323, I.P.C and Section 7/8 Protection of Children from Sexual Offences Act 2012, the learned Addl. Session Judge, has summoned the applicant thereunder.

It reflects from the record that the grand-father of victim Km. Sarika filed a complaint (registered as Complaint Case No. 74 of 2018) against the applicant under Sections 354, 323, I.P.C and Section 7/8 of the Act, 2012 alleging that his grand daughter has been molested by the applicant who is minor being aged about 17 years. Learned Addl. Sessions Judge after recording the statement of complainant under Section 200 Cr. P.C. and the witnesses under Section 202 Cr.P.C, has summoned the applicant as indicated above.

Learned counsel for the applicant has assailed the impugned summoning order as well as the proceedings in the aforesaid complaint case, on the following grounds:

(a) that earlier a first information report being Case Crime No. 100 of 2018 has been lodged by the victim herself against the applicant on 31.8.2018 and her statement under Section 161 Cr. P.C. was also recorded wherein she stated her age to be about 19 years. And just after 11 days of lodging the aforesaid F.I.R, the grand-father of the victim has filed the impugned complaint on 12.9.2018 mentioning the victim to be a minor and a different version of the incident.

(b) that in Case Crime No. 100 of 2018 lodged by the victim herself, charge-sheet has already been submitted against the applicant under Sections 354 & 323 I.P.C., and

(c) that parallel proceedings in respect of the same incident/offence is barred in view of various decisions of the Apex Court as well as sub section (2) of section 210,Cr.P.C., contending that a report under section 173 has already been made by the investigating police officer under Section 173 Cr.P.C..

On the above grounds, counsel for the applicant prays that the impugned summoning order and the entire proceedings, are liable to be quashed.

On the other hand learned A.G.A. submits that the Addl. Sessions Judge has rightly exercised the power while summoning the applicant and the charge-sheet has been filed in the F.I.R. lodged by the victim under Section 354 & 323 I.P.C. only and not under Section 7/8 of the Act,2012.

I have considered the rival submissions so raised by the parties and perused the record.

It is admitted by the parties that charge sheet has been submitted against the accused-applicant under Section 354, 323, I.P.C on the F.I.R. lodged by the victim namely Km. Sarika.

In order to appreciate the controversy in hand, it is relevant to have a glance upon section 210,Cr.P.C., which is a beneficial piece of legislation to the accused, object of which is to ensure that cognizance of the same offence is not taken more than once and the accused is not subjected to different criminal proceedings in respect of the same offence. The Section 210 Cr.P.C. is quoted as under:

"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

Since report under section 173 in the matter of F.I.R. lodged by the victim has been submitted, therefore, sub section (2) of section 210 becomes attracted in the present case. But it may be pointed out here that mere submission of the report under section 173 is not sufficient but cognizance of any offence on such report is also necessary to have been taken against any person who is an accused in the complaint case. It is not the case of the applicant that on the report submitted under section 173 in the F.I.R. lodged by the victim, cognizance had already been taken prior to taking cognizance and passing of the impugned summoning order .

What flows from section 210,Cr.P.C. is that right of a complainant to agitate the matter through a complaint cannot be taken away by filing of a charge sheet by the investigating officer under a different section of law. And the right of the Magistrate to summon the accused under some other sections in the complaint than under which the accused has been chargesheeted is fully secured by the Code of Criminal Procedure and at the same time protecting the accused also from parallel proceedings in regard to the same offence, by making the provision in sub section (2) that the Magistrate shall try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

Perusal of the order of the court below dated 18.12.2018 in the ordersheet of the complaint case appended as annexure-8, shows that record of the matter arising out of the FIR lodged had been directed to be summoned by the trial court.

In view of the above, the submission of the learned counsel that applicant is being subjected to two different proceedings in regard to the same offence, has no substance.

As regards the submission regarding different age of the victim as given in the complaint & F.I.R. as well as change in the version of incident, is concerned, suffice it to say these aspects are to be determined during trial on the basis of the evidence of the parties and not at this stage.

As a result of above discussion, there appears to be no illegality or infirmity in the order impugned and the prayer to quash the impugned summoning order and the proceedings, is refused.

The present petition stands disposed of, leaving it open for the applicant to make application for discharge on the grounds available to him within three weeks from today. In case any such application is moved, the same shall be considered and decided by the court below in accordance with law expeditiously preferably within a period of three months from the date of its presentation along with certified copy of this order.

For the period of three months or till the decision taken by the concerned Magistrate on the aforesaid application whichever is earlier, no coercive action shall be taken against applicant in the aforesaid proceedings.

Order Date :- 1.7.2019

Akbar