Yogesh Kumar Tiwari vs State Of U.P. And Another
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Allahabad High Court

Yogesh Kumar Tiwari vs State Of U.P. And Another on 24 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:94591
 
Reserved on:- 24.04.2024
 
Delivered on:- 24.05.2024
 
Court No. - 38
 

 
Case :- APPLICATION U/S 482 No. - 44833 of 2023
 

 
Applicant :- Yogesh Kumar Tiwari
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajesh Kumar Gautam
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ms. Nand Prabha Shukla,J.
 

Counter affidavit filed by learned A.G.A. for the State and rejoinder affidavit filed by learned counsel for the applicant are taken on record.

Heard Sri Rajesh Kumar Gautam, learned counsel for the applicant and Sri Ratnesh Nandan Singh, learned A.G.A. for the State.

This application u/s 482 Cr.P.C. has been filed to quash the order dated 12.12.2022 passed by the learned Additional District Judge/Fast Track Court-I, Etah in S.C. Case No. 810 of 2022 (State Vs. Yogesh Tiwari), arising out of Case Crime No. 163 of 2019, under Sections 376(2)A(1) and 506 IPC, Police Station-Awagarh, District-Etah, by which the learned Trial Court has framed the charges against the applicant.

The main submission of learned counsel for the applicant is that applicant was posted as Sub-Inspector of Police at Police Station-Awagarh, District-Etah in the year 2019. The opposite party No. 2 Arvind Kumar @ Sulla, a gangster and a criminal offender lodged an FIR on 10.07.2019 at 10:45 pm bearing Case Crime No. 163 of 2019, under Sections 376(2)A(1), 506 and 120B IPC, Police Station-Awagarh, District-Etah against two persons including the present applicant alleging therein that the first informant was wanted in a gangster's case by the Court of law, meanwhile the applicant in capacity of Sub-Inspector of the concerned police station visited his house for his arrest and took the mobile number of his wife and started conversation with her and called her at his room and forcibly raped her and prepared video clip. It was further alleged that the applicant regularly threatened the victim for the encounter of her husband/first informant.

On the basis of the aforesaid FIR, the statement of the first informant and the victim were recorded under Section 161 Cr.P.C. The alleged victim was medically examined on 12.07.2019 at District Hospital, Etah and thereafter her statement was recorded under Section 164 Cr.P.C. by the learned Chief Judicial Magistrate on 20.07.2019.

It has further been submitted by learned counsel for the applicant/accused that the Investigating Officer without conducting fair and proper investigation had submitted the charge sheet bearing No. 150 of 2019 dated 28.10.2019 against the applicant for the offence under Section 376(2)A(1) and 504 IPC in a mechanical manner and the learned Magistrate without applying his judicial mind took cognizance of the case and summoned the applicant to face the trial vide order dated 20.10.2019. Thereafter, the case was committed by the learned Chief Judicial Magistrate, Etah on 26.09.2022 and the learned Additional District Judge/Fast Track Court No. 1, Etah vide its order dated 12.12.2022 framed the charges against the applicant stating that "यह कि दिनांक अग्यात समय अग्यात बजे स्थान कस्बा अवागढ़ किराये के मकान अंतर्गत थाना क्षेत्र अवागढ़ जनपद एटा में आप अभियुक्त लोक अधिकारी की हैसियत में थाना परिसर की सीमाओं के भीतर रहते वादी मुकदमा अरविन्द कुमार की पत्नी के साथ उसके इच्छा के विरूद्ध जबरन गलत काम (बलात्कार) किया। इस प्रकार आपने ऐसा अपराध कारित किया जो कि भारतीय दंड संहिता की धारा 376(2)क(1) के अधीन दण्डनीय अपराध है और इस न्यायालय के संग्यान के अंतर्गत है।"

Thus, learned counsel for the applicant assailed the order dated 12.12.2022 on the following grounds:-

I. The alleged victim is a married lady and was having three children and conspired with her husband (an accused in a Gangster's Act) and his close friend to implicate him in a false case of rape.

II. That no offence under Section 376 IPC is made out against the applicant as she was a consenting party and there were recorded conversation between the applicant and the victim which is part of the case diary.

III. The victim never disclosed the specific date, time and place of commission of alleged offence of rape. The impugned order framing charges does not contain the date, time and place of the incident which is a sine qua non of Section 212 Cr.P.C. and is bad in the eyes of law.

Referring to Section 212 Cr.P.C. which provides as follows:- "The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."

Per contra, learned A.G.A. for the State vehemently opposed the aforesaid prayer and had submitted that the applicant/accused was a Police Officer posted at the concerned police station at the relevant point of time in the capacity of public servant and committed rape upon the wife of the first informant (victim) within the limits of the police station and such error shall not invalidate the charge as provided under Section 464 of the Cr.P.C. It is a crystallised judicial view that at the stage of framing of charge, the Court has merely to consider whether prima facie case is made out or not and whether there is sufficient ground for proceeding against the accused.

Upon hearing learned counsel for the parties and upon perusal of record, it transpires that sufficient incriminating material was found against the applicant and the charge sheet has already been submitted and the charges have already been framed, therefore, there does not exist any ground to interfere with the order impugned.

The Hon'ble Supreme Court in Amit Kapoor vs Ramesh Chander & Another, (2012) 9 SCC 460 has held that at the stage of Section 228, the Court is not concerned with the proof, but with the strong suspicion that the accused has committed an offence and the final test of guilt is not to be adjudged at the stage of framing of charge.

The ambit of scope of exercise of power under Sections 227 and 228 of the Criminal Procedure Code are fairly well settled. It has been consistently held that the standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

Thus, no mini trial is contemplated and only probative value of material has to be gone into to see if there is a prima facie case for proceeding against the accused.

Upon considering the submissions advanced, this Court is of the considered view that there is no illegality in the order impugned.

As in the instant matter, the charges have already been framed, therefore, this application under Section 482 Cr.P.C. is, accordingly, dismissed.

Order Date:- 24.05.2024

Shivani