Kaushilya Devi And 3 Ors vs State Of U.P. And Another
2024 Latest Caselaw 14922 ALL

Allahabad High Court

Kaushilya Devi And 3 Ors vs State Of U.P. And Another on 1 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:78321
 
Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 2841 of 2020
 

 
Applicant :- Kaushilya Devi And 3 Ors
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vineet Kumar Singh
 
Counsel for Opposite Party :- Abhay Kumar,Akash Kumar Verma,G.A.
 

 
Hon'ble Mayank Kumar Jain,J.
 

1. Heard learned counsel for the applicants, learned AGA for the State, learned counsel for opposite party no.2 and perused the record.

2. Present application u/s 482 of Cr PC has been filed by the applicants, praying for quashing the impugned orders dated 19.9.2019 as well as 23.12.2019 passed by the Additional Sessions Judge, Court No.1, Maharajganj in Special Sessions Trial No.364 of 2019 (State vs. Ganesh and others) under Sections 363, 366, 376, 504, 506 of IPC and Section 16/17 and 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Brijmanganj, District Maharajganj arising out of Complaint No.46 of 2018 (Smt. Saroj vs. Ganesh and others), Police Station Brijmanganj, District Maharajganj upto the extent of summoning the applicants under Sections 363, 366, 504, 506 of IPC and Section 16/17 of the POCSO Act.

3. It is further prayed that the entire proceedings of Special Sessions Trial No.364 of 2019 (State vs. Ganesh and others) under Sections 363, 366, 376, 504, 506 of IPC and Section 16/17 and 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Brijmanganj, District Maharajganj, arising out of Complaint No.46 of 2018 (Smt. Saroj vs. Ganesh and others), Police Station Brijmanganj, District Maharajganj, upto the extent of summoning the applicants under Sections 363, 366, 504, 506 of IPC and Sections 16/17 of the POCSO Act, pending in the Court of Additional Sessions Judge, Court No.1, Maharajganj may also be quashed.

3.1 It is submitted by learned counsel for the applicants that the daughter of opposite party no.2, namely, Kiran remained for a long period of eighteen months with co-accused Ganesh. She accompanied Ganesh on 6/7.5.2016 and came back to her home on 1.12.2017. Thereafter, seven months later, an application under Section 156 (3) of Cr PC was moved by opposite party no.2. No missing report was lodged since 6.5.2016 to 1.12.2017. It is also submitted that Ganesh has been granted bail by this Court, vide order dated 31.1.2022 passed in Criminal Misc. Bail Application No.51479 of 2021.

3.2 It is further submitted that the victim was not medically examined after she returned to her home. The complainant remained silent for a long period of two years. The malice is manifest in the matter. The learned Magistrate passed the impugned summoning order in a mechanical manner. He did not examine the veracity of the witnesses produced under Section 202 of Cr PC. No inquiry under Section 202 (1) of Cr PC was conducted. It is also submitted that the learned Magistrate, issued Non Bailable Warrant without issuing Bailable Warrant and that too, without proper service of summon upon the applicants. It is further submitted that all the allegations are made against co-accused Ganesh by the victim in her statement under Section 202 of Cr PC.

3.3. Learned counsel for the applicants relied upon a judgment of this Court in Smt. Usha Jain and Anr. vs. State of UP & Anr., 2018 (2) All. Crl. Rulings 1871 and submitted that this Court has observed that issuance of bailable and non-bailable warrant in the absence of satisfaction of the Magistrate, is not justified.

3.4 Further, leaned counsel for the applicants relied upon an another judgment of this Court in Ashok Nigam vs. State of UP & Another, 2022 4 ADJ 693 and submitted that the impugned summoning order is bad in law in view of the said judgment.

4. Per contra, learned counsel for opposite party no.2 as well as learned AGA opposed the prayer and submitted that the role of the applicants is described in the complaint by opposite party no.2. There is an allegation against the applicants that they facilitated co-accused Ganesh in abducting the victim. The victim, during her statement under Section 202 of Cr PC, made certain allegations about involvement of the applicants in the incident. The age of the victim was 16 years at the time of incident and she was a minor girl. It is further submitted that the learned Magistrate has, on the basis of primary evidence, passed the impugned summoning order.

5. In Mohammad Wajid and another vs. State of UP and others, 2023 SCC Online SC 951, the Hon'ble Apex Court has observed as under:

34. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. ? ? ..."

35. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-

"5. ?Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death?.."

DELAY IN LODGING THE FIR

36. The alleged incident is said to have occurred sometime in the year 2021. There is no reference to any date or time of the incident in the FIR. The allegations are too vague and general. Had it been the case of prompt registration of the FIR, probably the police might have been able to recover Rs. 2 Lakh from the possession of the accused persons alleged to have been forcibly taken away from the pocket of the first informant. The FIR also talks about a document on which the first informant and his brother were forced to put their signatures. We wonder, whether the investigating agency was in a position to collect or recover any such document from the accused persons containing their signatures in the course of the investigation, more particularly when the State says that the investigation is over and the charge sheet is also ready. In the absence of all this material, how is the State going to prove its case against the accused persons. The FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of the eye witnesses present at the scene of occurrence.

37. In the aforesaid context, we may clarify that delay in the registration of the FIR, by itself, cannot be a ground for quashing of the FIR. However, delay with other attending circumstances emerging from the record of the case rendering the entire case put up by the prosecution inherently improbable, may at times become a good ground to quash the FIR and consequential proceedings. If the FIR, like the one in the case on hand, is lodged after a period of more than one year without disclosing the date and time of the alleged incident and further without any plausible and convincing explanation for such delay, then how is the accused expected to defend himself in the trial. It is altogether different to say that in a given case, in the course of investigation the investigating agency may be able to ascertain the date and time of the incident, etc. The recovery of few incriminating articles may also at times lend credence to the allegations levelled in the FIR. However, in the absence of all such materials merely on the basis of vague and general allegations levelled in the FIR, the accused cannot be put to trial."

6. As per the allegations made in the complaint filed by opposite party no.2, her daughter disappeared on the intervening night of 6/7.5.2016. She returned back to her house on 1.12.2017. She remained with main accused Ganesh for around 17 months. It is pertinent to mention here that since 6/7.5.2016 to 1.12.2027, no missing report was lodged by opposite party no.2. No information to higher authorities was also given by her. Thereafter, the present complaint is made on 4.7.2018, after returning of her daughter on 1.12.2027. The allegation made against the applicants is that they instigated the daughter of opposite party no.2 to accompany with Ganesh and they facilitated Ganesh for abduction of her daughter.

7. During primary evidence recorded by the learned trial Court, no explanation of such inordinate delay and for not approaching the appropriate authority has been offered by opposite party no.2. The main role is assigned to co-accused Ganesh with whom daughter of opposite party no.2 remained for almost 17 months. Opposite party no.2 remained silent for a long period of two years and did not make any complaint to the authority about missing of her daughter, which itself demonstrates that malice, in lodging the complaint, is manifest. In this view of the matter, the case of the applicants is squarely covered with Clause 7 of the judgment of Hon'ble Apex Court in State of Haryana & Others vs. Bhajan Lal & Others, 1992 Supp. (1) SCC 335 and the observations made in paragraphs 36 and 37 of Mohammad Wajid (supra).

8. In view of above, present application deserves to be allowed and is, accordingly, allowed. The entire proceedings of Special Sessions Trial No.364 of 2019 (State vs. Ganesh and others) under Sections 363, 366, 376, 504, 506 of IPC and Section 16/17 and 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Brijmanganj, District Maharajganj, arising out of Complaint No.46 of 2018 (Smt. Saroj vs. Ganesh and others), Police Station Brijmanganj, District Maharajganj upto the extent of summoning the applicants under Sections 363, 366, 504, 506 of IPC and Sections 16/17 of the POCSO Act, pending in the Court of Additional Sessions Judge, Court No.1, Maharajganj, including the impugned orders dated 19.9.2019 as well as 23.12.2019, in respect of the present applicants only, are hereby quashed.

Order Date :- 1.5.2024

RKK/-