Allahabad High Court
Amit Kumar Nirmal vs State Of U.P. And Another on 28 January, 2021
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- APPLICATION U/S 482 No. - 1162 of 2021
Applicant :- Amit Kumar Nirmal
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Salman Ahmad
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicant with the prayer to quash the impugned order dated 28.01.2020 and further proceedings of Sessions Trial No. 266 of 2018 (State Vs. Amit Kumar Nirmal), arising out of Case Crime No. 202 of 2017, under Sections 376, 420 IPC, Police Station Raqabganj, District Agra, pending in the court of Additional District and Sessions Judge/ Fast Track Court, Agra.
Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.
Learned counsel for the applicant has next submitted that on the pretext of marriage, applicant has not committed rape upon the victim and the allegations are false and frivolous, therefore, offence under Section 376 IPC is not made out against the applicant, as such, impugned order and entire proceedings be quashed.
Learned counsel for the applicant has next submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicant and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
In support of his contention, learned counsel for the applicant has relied upon the decision of the Hon' ble Apex Court in the case of Criminal Appeal No. 635 of 2020 (Maheshwar Tigga Vs. State of Jharkhand), dated 28.09.2020.
Per contra, learned AGA has submitted that on the false promise of marriage, applicant has committed rape upon the victim and even in the statement of the victim recorded under Section 164 CrPC, she has reiterated the allegation of rape against the applicant on the false promise of marriage. The marriage could not be solemnized as there was age difference between the applicant and the victim. In fact, from the very beginning, the applicant had no intention to marry the victim and just to satisfy his lust, he made physical relationship with the victim.
Learned AGA has further submitted that earlier, an Application under Section 482 CrPC No. 24273 of 2018 was filed by the applicant before this Court, challenging the charge-sheet, cognizance order and entire proceedings, which has already been dismissed by another Bench of this Court vide order dated 25.07.2018.
He has next submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicant and as such, impugned order and entire proceedings cannot be quashed.
Having considered rival submissions made by learned counsel for the parties and taking into consideration the specific allegation of rape upon the victim on false promise of marriage by the applicant made in the FIR, at this stage, when the evidence is yet to come, it cannot be said that no offence is made out against the applicant. The court below while passing the impugned order has considered each and every aspect of the matter and has passed a well reasoned order and do not call for any interference by this Court at this stage.
The judgment, cited by counsel for the applicant, has no relevancy at this stage and is distinguishable in the facts of the case as the same has been passed after considering the entire evidence during the course of trial.
It is also to be noted that at the stage of discharge, the court has to consider the material only with a view to find out if there is a ground for 'presuming' that the accused had committed the offence :
"It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
"Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record. If generally accepted, would reasonably connect the accused with the crime."
The applicant cannot be discharged on the ground of jurisdiction. Moreover, as per the material collected during the course of investigation, part of the offence has also been committed at Agra, which has been dealt with in the impugned order.
In view of the aforesaid facts and circumstances of the case, the prayer for quashing the impugned order is rejected. This application under Section 482 CrPC is devoid of merit and it is accordingly dismissed.
Order Date :- 28.1.2021
NA
