Chaudhary Pratap Singh And ... vs State Of U.P. And Another
2023 Latest Caselaw 280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- APPLICATION U/S 482 No. - 1541 of 2022
 

 
Applicant :- Chaudhary Pratap Singh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amit Daga
 
Counsel for Opposite Party :- G.A.,Mehul Khare
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Amit Daga, the learned counsel for applicants, the learned AGA for State and Mr. Vinay Saran the learned Senior Counsel assisted by Mr. Mehul Khare, the learned counsel for first informant/opposite party-2.

2. Perused the record.

3. Present application under Section 482 Cr.P.C. has been filed challenging Charge Sheet No. 13 of 2020 dated 27.05.2020 submitted in Case Crime No.26 of 2020 under Sections 354B, 323, 504 and 506 I.P.C. P.S. Mahila Thana, District Moradabad, Cognizance Taking Order /Summoning Order dated 24.07.2020 passed by Civil Judge (Junior Division)/F.T.C. (CAW), Moradabad in consequential Criminal Case No. 10426 of 2020 (State of U.P. Vs. Chaudhary Pratap Singh and others), under Sections 354B, 323, 504 and 506 I.P.C. P.S. Mahila Thana, District Moradabad as well as the entire proceedings of above mentioned criminal case, now pending in the Court of Civil Judge (Junior Division)/F.T.C. (CAW), Moradabad.

4. Record shows that in respect of an incident, which is alleged to have occurred on 14.01.2020, Smt. Priyanka Chaudhary, first informant/opposite party-2 lodged a delayed F.I.R. dated 08.03.2020, which was registered as Case Crime No.26 of 2020 under Sections 354B, 323, 504 and 506 I.P.C. P.S. Mahila Thana, District Moradabad. In the aforesaid F.I.R., four persons namely Pratap Singh, Yash Chaudhary, Sapna Chaudhary and Sushil Chaudhary have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R is to the effect that on 14.01.2020 when first informant/opposite party-2 alongwith her Nanad Babita Chaudhary were going to Buddhi Bihar for urgent work then named accused are alleged to have intercepted and thereafter, assaulted the first informant and her nanad. Named accused are also said to have dislodged the modesty of first informant/opposite party-2.

6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C.. Investigating Officer first examined first informant/opposite party 2, Priyanka Chaudhary under Section 161 Cr.P.C., who has supported the FIR. Thereafter, Investigating Officer examined Lalit Kumar, Raj Bala and Babita Chaudhary under Section 161 Cr.P.C. Aforesaid witnesses have also supported the FIR. On the basis of above and other material collected by him during course of investigation, Investigating Officer opined to submit a charge sheet. Accordingly, he submitted the charge sheet dated 27.05.2020, whereby named accused have been charge sheeted under Sections 354B, 323, 504 and 506 I.P.C. Thereafter Court below has taken cognizance upon the aforesaid charge sheet and simultaneously summoned the charge-sheeted accused vide summoning order dated 24.07.2020, passed in aforementioned State-case.

7. Feeling aggrieved by aforesaid, applicants who are named/charge sheeted accused have now approached this Court by means of present application under Section 482 Cr.P.C..

8. It is apposite to mention here that in the interregnum, applicants for protection of their life and liberty earlier approached this Court for grant of anticipatory bail but the same was refused by this Court. However, inspite of above, applicants have not yet appeared before court below.

9. Mr. Amit Daga, the learned counsel for applicants in support of present application submits that the occurrence giving rise to present criminal proceeding is said to have occurred on 14.01.2020 but the FIR was lodged on 08.03.2020. Elaborating his submission, the learned counsel for applicants submits that an application purported to be under Section 154 (2) Cr.P.C. was filed by first informant/opposite party 2, Priyanka Chaudhary before concerned Superintendent of Police on 24.02.2020 i.e. after 41 days of the occurrence. On the aforesaid premise, it is sought to be contended that there is gross delay in initiating the proceedings for getting the FIR lodged. However, the delay in filing the aforementioned aplication has not been explained either in the application itself or in the statement of first informant/opposite party 2 as recorded under Section 161 Cr.P.C.

10. According to the learned counsel for applicants, since the delay in lodging the FIR has not been explained therefore, the prosecution of applicants itself cannot be maintained. To buttress his submission he has placed reliance upon the judgment of Apex Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866. Paragraph 8 of the report is relevant for the controversy in hand and same is relied upon by learned counsel for applicants. Accordingly, same is extracted herein-under:-

"8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].

In the matter on hand, the entire family of PW1 was at the mercy of Accused No. 1, who was very rich and influential. Accused No.1 acted as a benefactor to the family and had helped them financially and otherwise on multiple occasions. Under such circumstances, PW1 might have been reluctant to lodge a complaint immediately after the occurrence of the said incident, especially when Accused No. 1 had employed his henchmen to keep the house and movements of PW1 and her family under surveillance. Moreover, no material has been brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted.

In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution."

11. It is next contended by the learned counsel for applicants that opposite party 2 had approached Uttaranchal High Court for protection of her life and liberty by means of Criminal Misc. Writ Petition No. 219 of 2019 (Smt. Priyanka Chaudhary Vs. State of Uttranchal and 6 Others). The accused/ applicants have been impleaded as respondents 4, 5, 6 and 7 in aforementioned writ petition. Aforesaid writ petition came up for admission on 07.02.2019 and Court passed the following order:-

"Mr. P.C. Petshali, Advocate for the petitioner.

Mr. P.S. Bohara, A.G.A. for the State of Uttarakhand.

Issue notice to the respondents.

As prayed, four weeks time is granted to learned counsel for the State to file counter affidavit.

Heard learned counsel for the parties.

The Government Advocate has placed a report before this Court, which he has received from the SHO, P.S. Kashipur, District Udham Singh Nagar to the effect that there happens to certain criminal proceedings which are pending against the parties to the writ petition and, since the police authorities were apprehending the breach of peace, steps under Section 107/116 of the Code of Criminal Procedure had already been taken.

But still, the petitioner submits that owing to the fact that the \respondents no. 4 is too averse to the matrimony which she has solemnized with one Mr. Vipul. The feud between them is perrsisting, since long and she apprehends threat to her life at the behest of the private respondent. Considering the history of criminal litigations which is going on amongst the parties, without prejudicing or affecting any criminal proceedings in any manner, whatsoever the respondent no. 2 is directed to provide protection to life and property to the petitioner as against the private respondent nos. 4, 5, 6 & 7.

This order would not be construed to create any impediment, in any proceedings to be drawn by the police authorities in accordance with law against the private parties to the present writ petition.

(Sharad Kumar Sharma, J.)

Vacation Judge (Uttaranchal High Court)

07.02.2019"

12. Subsequently, above-mentioned writ petition (criminal) came to be disposed off finally vide order dated 09.12.2022. For ready reference, the same is reproduced herein-under:-

" Learned counsel or the petitioner submits that subsequent to the order passed by this Court dated 07.02.2019, there have been no incidents, and the petitioner is living peacefully. Hence, he pleads that the petitioner be disposed-off.

2. In view of the submission made, the writ petition is disposed-off.

3. Pending application, if any, stands disposed-off."

13. On the above premise, Mr. Amit Daga, the learned counsel for applicants submits that in view of the recital contained in the order dated 09.12.2019, present criminal proceedings are wholly false. Applicants have been falsely implicated in aforementioned case crime number and therefore, same are liable to be quashed by this Court.

14. According to the learned counsel for applicants, it is well settled that recital contained in an order passed by Court shall be deemed to be correct and in case any person is aggrieved by any part of the recital contained in an order passed by Court, then remedy available to the aggrieved party is to approach the Court, which was passed the order seeking a review/clarification of the order.

15. Learned counsel for applicants also submits that applicant-1 is the real uncle of first informant opposite party-2 whereas applicant-2 is the first cousin of first informant/opposite party-2. The prosecutrix/first informant had solemnized marriage with Bipul Kumar, which was opposed by applicant-1. It is on account of above that first informant/opposite party-2 maintained enmity with applicants and therefore, present false prosecution has been launched.

16. It is then contended by learned counsel for applicant that first informant/opposite party-2 is playing hot and cold at the same time for which no explanation has come forward in the counter affidavit filed by opposite party-2. Placing reliance upon the judgment of Uttranchal High Court, he submits that present criminal proceedings are not only malicious but also an abuse of the process of Court and therefore, same are liable to be quashed by this Court.

17. Learned counsel for applicant has relied upon the following juidgements in support of his submission that since present criminal proceedings are malicious and an abuse of the process of court, therefore, same are liable to be quashed by this Court:

i. Vineet Kumar. Vs. State of U.P., (SC) Law Finder Doc id 842198.

ii. Ahmad Ali Quraishi Vs. State of U.P. (2020) 13 SCC 435

iii. Krishna Lal Chawla and others Vs. State of U.P. and another (2021) 5 SCC 435

iv. State of Haryana and others Vs. Bhajan Lal and others, 1992 (1) SCC 335.

v. Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330.

18. Per contra, the learned A.G.A. for State and Mr. Vinay Saran, the learned Senior Counsel assisted by Mr. Mehul Khare, the learned counsel for first informant/opposite party-2 have opposed the present application. Learned A.G.A. submits that impugned charge-sheet is the outcome of the statutory investigation conducted by Investigating Officer in terms of Chapter XII Cr.P.C. He further submits that in the present case no pleadings have been raised in respect of any defect or deficiency in investigation of concerned case crime number. Charge-sheet is the outcome of investigation. Once no deficiency or defect has been pointed out in the investigation then subsequent charge-sheet, whereby by applicants have charge-sheet, cannot be challenged.

18. It is then contended by learned A.G.A. that during course of investigation Investigating Officer has examined the first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C., who have supported the F.I.R. / the prosecution story as unfolded in the F.I.R. He therefore, submits that upto this stage, it cannot be said that prosecution case is false or there is no material to support the prosecution story as unfolded in the F.I.R..

19. The issue as to whether there is no truth in the allegations made in the F.I.R. can more appropriately be dealt with in trial and not in the proceedings under Sectrion 482 Cr.PC., as this court cannot appraise or appreciate evidence.

20. Mr. Vinay Saran, the learned senior counsel further submits that the prosecutrix/first informant and other witnesses examined by the Investigating Officer under Section 161 Cr.P.C. have supported the allegations made in the F.IR. As such, prima-face the prosecution of applicants can be maintainable. Learned senior counsel has relied upon the following judgements of Apex Court in support of the submission urged before him:

i. C.B.I. Vs. K. M. Sharan (2008) 4 SCC 471

ii. Madan Razak Vs. State of Bihar (2015) 16 SCC 269

iii. Kaptan Singh Vs. State of U.P.(2021) 9 SCC35

iv. State of Odisha Vs. Pratima Mohanti, 2021 Online SC 1222

v. State of M.P. Vs. Awadh Kishore Gupta (2015) 0 SCC (Cri) 353

vi. State of Karnatka Vs. M. Devendrappa and another (2002) 3SCC 89

vii. State of Bihar and another Vs. PP Sharma and another 1991 AIR SCW 1034

viii. Sheo Nand Paswan Vs. State of Bihar [1987] 0 AIR (SC) 877

21. Learned senior counsel for applicant in support of his aforesaid submission has also placed reliance upon the judgement of Apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74. On the basis of above, he submits that offence involving sexual assault or rape can be maintained even in absence of medical evidence provided the statements of prosecutrix/first informant are of impeccable character. The copies of the statements of the prosecutrix/first informant/opposite party-2 recorded under sections 161/164 Cr.P.C. are on record at page 144-145 of the paper book. Learned senior counsel with reference to above submits that prosecutrix has been categorical and consistent in her statements recorded by the Investigating Officer as well as the statement under Section 164 Cr.P.C.. In view of above, he submits that the statements of prosecutrix fall in the category of impeccable evidence. There is no material on record to doubt the genuineness of the prosecution case. No false implication can be inferred either. On the aforesaid premise, learned senior counsel submits that no interference is warranted by this Court in present application under Section 482 Cr.P.C. Learned senior counsel has also adopted the submissions urged by the learned A.G.A. in opposition to the present application under Section 482 Cr.P.C.

22. On the submissions and counter submissions urged by counsel for the parties, the issue that arises for determination before this Court as to whether the contents of the order dated 09.12.2019 passed by the Division Bench of Uttranchal High Court will prevail over the FIR dated 08.03.2020 giving rise to present criminal proceedings or not?

23. Admittedly, the order dated 09.12.2019 was passed by the Division Bench of Uttranch High Court in Writ Petition (Criminal) No. 219 of 2019 (Smt. Priyanka Chaudhary Vs. State of Uttranchal and 6 others). Aforesaid writ petition was filed by prosecutrix/first informant herself and the statement was made on her behalf before the Division Bench that there have been no incidents and the petitioner (prosecutrix/first informant) is living peacefully. The F.I.R. giving rise to present criminal proceedings was lodged on 08.03.2019 i.e. much prior to the order dated 09.12.2019. This Court is unable to understand as to why this fact was not placed before Uttranchal High Court.

24. Admittedly, protection was granted by the Uttranchal High Court to first informant/prosecutrix vide order dated 07.02.2019. The court is unable to understand as to why even before protection was granted to the prosecutrix by means of order dated 07.02.2019 passed by the Uttranchal High Court, which continued till 9th December, 2019 yet statement was made that there have been no incidents and the petitioner i.e. the prosecutrix is living peacefully.

25. The Court raised a specific query as to whether any application was filed by prosecutrix/first informant before the Uttranchal High Court seeking rectification / modification of the order dated 09.12.2019. Mr. Vinay Saran, the learned senior counsel fairly submits that no such proceedings have been initiated. Prosecutrix in her statements recorded under Sections 161/164 Cr.P.C. has disclosed about the occurrence giving rise to present criminal proceedings but why the said fact was not disclosed to the High Court of Uttranchal remains a mystery.

26.Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned senior counsel for first informant/opposite party 2 and upon consideration of evidence on record, the consideration of facts that have emerged and as noted above the inescapable conclusion is that the present prosecution of applicant is not only false, malicious but also an abuse of the process of Court.

27. In view of above, present criminal misc. application succeeds and is liable to be allowed.

28. Accordingly, it is allowed.

29. The entire proceedings of Criminal Case No. 10426 of 2020 (State of U.P. Vs. Chaudhary Pratap Singh and others), under Sections 354B, 323, 504 and 506 I.P.C. P.S. Mahila Than, District Moradabad are hereby quashed.

30. Cost made easy.

Order Date :- 4.1.2023

YK