Rahul Kumhar vs State Of U.P. And Another
2023 Latest Caselaw 16121 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:112279
 
Court No. - 64
 

 
Case :- APPLICATION U/S 482 No. - 11771 of 2023
 

 
Applicant :- Rahul Kumhar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ravindra Prakash Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

A counter affidavit has been filed on behalf of the State. It is taken on record.

This application has been filed seeking to quash the proceedings of Case No. 3178 of 2017, State v. Rahul Kumhar (arising out of Case Crime No. 852 of 2016), under Sections 174A I.P.C., Police Station - Dhanghata, District - Sant Kabir Nagar, pending before the Judicial Magistrate, Sant Kabir Nagar

An affidavit of compliance has been filed by the Superintendent of Police, Sant Kabir Nagar, Satyajeet Kumar Gupta. Likewise, a report has been received from the Judicial Magistrate, Sant Kabir Nagar. Both of these have been perused.

This application under Section 482 Cr.P.C. is directed against the charge-sheet, arising out of Case Crime No. 852 of 2016, under Section 174A I.P.C., Police Station ? Dhanghata, District ? Sant Kabir Nagar, on the basis of which Case No. 3718 of 2017 is proceeding on the file of the Judicial Magistrate, Sant Kabir Nagar.

Heard Mr. Ravindra Prakash Srivastava, learned Counsel for the applicant and Mr. Shashi Shekhar Tiwari, learned A.G.A. appearing on behalf of the State

The submission of Mr. Ravindra Prakash Srivastava, Advocate, is that the impugned charge-sheet is founded on the basis, that the applicant is disobeying processes under Section 82 Cr.P.C, issued in Case Crime No. 845 of 2015, under Sections 363 and 366 I.P.C., Police Station ? Dhanghata, District ? Sant Kabir Nagar, pending in the Court of the Chief Judicial Magistrate, Sant Kabir Nagar. He points out that the proceedings of the said case, including the crime, stand quashed in terms of the judgment and order of this Court dated 20.08.2019, passed in Application under Section 482 No. 2324 of 2018.

It is Mr. Ravindra Prakash Srivastava?s submission that once proceedings of the substantive case have been quashed, there cannot be any process surviving under Section 82 Cr.P.C., so as to provide foundation for proceedings under Section 174A of the Penal Code.

A perusal of the facts here shows that process under Section 82 Cr.P.C. was issued against the applicant in Case No. 5922 of 2016, State v. Rahul Kumhar, arising out of Case Crime No. 848 of 2015, under Sections 363 and 366 I.P.C., Police Station ? Dhanghata, District ? Sant Kabir Nagar. The proceedings of the said case were challenged before this Court by the applicant, by means of Application under Section 482 No. 2324 of 2018, where the proceedings of the case last mentioned, were quashed by this Court vide order dated 20.08.2019, in terms of the following orders:

? This application under Section 482, Cr.P.C. has been filed to quash the entire proceedings of Case No.5922 of 2016 (State of U.P. Vs. Rahul) arising out of Case Crime No.848 of 2015, under Sections 363 and 366 I.P.C., Police Station Dhanghata, District Sant Kabir Nagar, pending in the court of Chief Judicial Magistrate,Sant Kabir Nagar.

It reflects from the record that O.P. No.2, grandfather of the victim, namely, Priti lodged first information report for kidnapping of her granddaughter and Case Crime No.848 of 2015 was registered under Section 363 and 366, IPC.

The contention of learned counsel for the applicant is that the victim, Priti got married to the applicant on 27.8.2015 and out of their wedlock a male child was born on 30.10.2017 and now they are living together peacefully. Affidavit in support of the application has been filed by Priti Prajapati claiming herself to be the wife of the applicant.

Since the victim had already been married and residing together as husband and wife, there is no justification facing trial by the husband. Under these circumstances, it is deemed proper that in order to meet the ends of justice and avert the abuse of court's process impugned proceedings of the aforesaid case be quashed.

The proceedings of the aforesaid case, are, hereby quashed. The application stands allowed. ?

Here, the First Information Report giving rise to the present crime was registered on account of the process under Section 82 Cr.P.C. dated 19.05.2016, which was served on 21.05.2016 in the presence of witnesses. Thereafter, another process under Section 82 Cr.P.C. was issued on 09.08.2016, regarding which there was a proclamation by beat of drum and publication in newspapers on 09.08.2016 and 10.08.2016 respectively. When these processes did not succeed in securing the applicant's presence, the present crime under Section 174A of the Penal Code was registered on 16.08.2016. After investigation, a charge-sheet was put in and taken cognizance of by the Court on 20.07.2017. This case proceeded through the year 2017, 2018, 2019 and 2020, and thence, through the year 2022 and 2023, until the present time. In between, on 20.08.2019, the proceedings of the substantive case, that is to say, the one arising out of Case Crime No. 484 of 2015, under Sections 363 and 366 I.P.C., came to be quashed by this Court, as already indicated. The processes under Section 82 Cr.P.C. that were issued and for the disobedience, of which the present crime was registered, therefore, stood effaced. There was nothing on the foot of which the prosecution under Section 174A could proceed. Nevertheless, unmindful of the orders of this Court dated 20.08.2019 passed in Application under Section 482 No. 2324 of 2018, the proceedings of Case No. 3178 of 2017, under Section 174A I.P.C. were going ahead, until this application was brought before this Court and the impugned proceedings interdicted.

The Judicial magistrate, Sant Kabir Nagar has in her report dated 20.05.2023, acknowledged the fact that there is no foundation for the impugned proceedings to go on. The Judicial Officer?s report dated 20.05.2023 in its relevant part reads:

?Then presiding officer has consigned the main file Crime No. 5922/2016 under section 363,366 IPC to the record room in compliance of order dated 20.08.2019 of the Hon'ble High Court, Allahabad on 09.09.2019. After quashing the proceeding, no process under section 82 crpc was issued by the trialCourt in the main file. Due to non presence of the accused in case no. 3178 of 2017, under section 174A IPC, various processes summon, bailable warrant and non-bailable warrant was issued by then presiding officer. I have not issued any process against the accused in case no. 3178 of 2017, under section 174A IPC.

I took the charge of Judicial Magistrate,Sant Kabir Nagar on the date 01.05.2023 and the Case no. 3178 of 2017, State vs Rahul Kumar (arising out of Case Crime No. 852 of 2016) under Section 174A IPC was presented before me, for the first time, on 03.05.2023 to comply the order dated 28.04.2023 of Hon'ble the High Court, Allahabad. I, immediately, stayed the proceedings of the said file in compliance of the order dated 28.04.2023 of the Hon'ble High Court, Allahabad. As soon as, the Hon'ble Court vacate the Stay, I will drop the proceeding. ?

So far as the Superintendent of Police, Sant Kabir Nagar is concerned, in his personal affidavit, he has averred in paragraph no. 7 as follows:

?7. That the deponent had submitted its report wherein at paragraph no.5, it has been mentioned that this Hon'ble Court in its order directed to end the proceedings of case crime no. 848 of 2015 under section 363, 366 I.P.C. and deponent as well as Station House Officer has no knowledge of information about the passing of the order by this Hon'ble Court and when the Hon'ble Court passed order dated 28.04.2023, the deponent got information of the aforesaid fact and on enquiry, it was found that proceedings of case crime no. 848 of 2015 was ended and there is no necessity to further proceed in case crime no. 852 of 2016 under section 174A I.P.C. Copy of the report of the deponent dated 17.05.2023 is being filed herewith and marked as Annexure No.C.A.-1 to this affidavit.?

In view of the stand taken by the opposite parties and the clear position of the law, there is absolutely no basis for the prosecution under Section 174A I.P.C. to go on, which proceeds only on the foot of a violated process under Section 82 Cr.P.C.

This Application is, accordingly, allowed.

Proceedings in Case No. 3178 of 2017, State v. Rahul Kumhar (arising out of Case Crime No. 852 of 2016), under Sections 174A I.P.C., Police Station - Dhanghata, District - Sant Kabir Nagar, pending before the Judicial Magistrate, Sant Kabir Nagar, are hereby quashed.

An entry shall be caused to be made in the G.D. of Police Station - Dhanghata, District - Sant Kabir Nagar that all the proceedings of Case No. 3178 of 2017, State v. Rahul Kumhar (arising out of Case Crime No. 852 of 2016), under Sections 174A I.P.C., Police Station - Dhanghata, District - Sant Kabir Nagar, pending before the Judicial Magistrate, Sant Kabir Nagar, stand quashed under orders of this Court.

The District Magistrate, Sant Kabir Nagar is further ordered to ensure that the applicant?s name is deleted from the crime registered. The Chief Judicial Magistrate, Sant Kabir Nagar shall ensure that this part of the order is enforced by making necessary entries in the G.D. of the Police Station concerned.

Let a copy of this order be forwarded to the Chief Judicial Magistrate, Sant Kabir Nagar through the learned Sessions Judge, Sant Kabir Nagar, the District Magistrate, Sant Kabir Nagar and the S.H.O. of Police Station - Dhanghata, District - Sant Kabir Nagar through the Superintendent of Police, Sant Kabir Nagar, by the Registrar (Compliance).

Order Date :- 22.5.2023

Prashant D.