Allahabad High Court

Chandan Kaushik vs State Of U.P. And 3 Others on 7 January, 2025

Author: Rajeev Misra

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:3336
 
Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 33608 of 2024
 

 
Applicant :- Chandan Kaushik
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Atharva Dixit,Pranav Tiwary,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Pankaj
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Manish Tiwari, the learned Senior Counsel assisted by Mr. Atharva Dixit, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Chandan Kaushik, has approached this Court by means of present application under section 482 Cr.P.C. with the following prayer:

"It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow this application under section 482 of Cr.P.C. and quash the impugned order of framing charges 10.09.2024, impugned order dated 15.07.2024, impugned charge sheet dated 15.02.2024 as well as impugned summoning order dated 28.02.2024, and the entire proceedings of Session Case No. 432 of 2024 (State of U.P Vs. Chandan Kaushik) arising out of Case Crime No. 0025 of 2024, under Sections 376, 504, 506 IPC and Section POCSO Act, Police Station- Sipari Bazar, District-Jhansi, pending before the Court of Learned Additional District and Session Judge/ Special Judge (POCSO Act) Jhansi.

It is further prayed that this Hon'ble court may be pleased to stay the effect and operation of the impugned order of framing charges 10.09.2024, impugned order dated 15.07.2024, impugned charge sheet dated 15.02.2024 as well as impugned summoning order. dated 28.02.2024, and the entire proceedings of Session Case No. 432 of 2024 (State of U.P Vs. Chandan Kaushik) arising out of Case Crime No. 0025 of 2024, under Sections 376, 504, 506 IPC and Section POCSO Act, Police Station- Sipari Bazar, District-Jhansi, pending before the Court of Learned Additional District and Session Judge/Special Judge (POCSO Act) Jhansi, during the pendency of the present application u/s 482 Cr. P.C And/ or this Hon'ble court be pleased to pass any order or further orders which this Hon'ble court may deem fit on the facts and circumstances of the present case."

4. At the very outset, the learned A.G.A. submits that notice of this application under section 482 Cr.P.C. has been served upon first informant/opposite party-2 on 13.9.2024. However, inspite of service of notice, neither any counter affidavit has been filed by first informant/opposite party-2 nor any one has put in appearance on his behalf to oppose this application even in revised call.

5. On the matter being taken up, the learned A.G.A. has raised a preliminary objection regarding maintainability of present application. Learned A.G.A. submits that since charges have been framed against applicant by Court below in exercise of jurisdiction under section 228 Cr.P.C. therefore, present application is misconceived. As charges have been framed by Court below against accused-applicant, therefore, the same has to be assumed by Court below one way or the other. As such, the prayer prayed for by means of present application is misconceived. Consequently, the present application is liable to be dismissed. In support of above, the learned A.G.A. has relied upon the judgment of Supreme Court in Ratilal Bhanji Mithani Vs. State of Maharashtra and Others 1979 (2) SCC 179.

6. When confronted with above, Mr. Manish Tiwari, the learned Senior Counsel for applicant submits that in view of the law laid down by the Apex Court in Satish Mehra Vs. State (NCT of Delhi) and Another (2012) 13 SCC 614 the veracity of the criminal proceedings pending against an accused can more appropriately be examined by this Court after the charges have been framed. As such, the objection raised by the learned A.G.A. that since charges have been framed against applicant, therefore, the veracity of the proceedings cannot be examined is misconceived.

7. According to the learned Senior Counsel, the present criminal proceedings are wholly malicious and are liable to be quashed by this Court. In the submission of the learned Senior Counsel, the entire facts and circumstances of the case have been noted by this Court in the order dated 10.4.2024 granting bail to applicant in present case crime number. For ready reference, the same is reproduced herein under:

"Shri Rishi Chaddha, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 25 of 2024 at Police Station-Sipari Bazar, District- Jhansi under Sections 376, 504, 506 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 01.02.2024.

The bail application of the applicant was rejected by the learned trial court on 02.03.2024. The following arguments made by Shri Manish Tiwary, learned Senior Advocate assisted by Shri Atharva Dixit, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Pankaj Dwivedi, learned counsel on behalf of the informant and Shri Rishi Chaddha, learned AGA from the record, entitle the applicant for grant of bail.

1. The victim was wrongly shown as a minor of 18 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

2. The age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) is contested on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry in the school record. The school records disclosing her age as 17 years, 9 months and 22 days are unreliable.

(iii) The victim under in her statements under Sections 161 and 164 Cr.P.C. has stated that she is 18 years of age respectively.

(iv) Medico-legal examination (not the age determination test) records that the victim is 18 years of age.

(v) The medical report drawn up to determine the age of the victim opines that she is above 17-18 years of age.

Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.

3. Delay in lodgement of the FIR in the facts of the case is fatal to the prosecution case.

4. The applicant is a young student who had a romantic involvement with the mother of the victim. They had consensual physical relations

5. The relationship went awry leading to a number of disputes between the parties.

6. The mother of the victim instituted false criminal cases against the applicant including one for commission of rape. The aforesaid cases were leveraged to extort money from the applicant.

7. After a compromise the cases were dropped at the instance of the mother of the victim. However, the appetit to extort money only increased with time.

8. The applicant has been nominated in the instant case in keeping with the past conduct of the victim's family to blackmail the applicant and extort money.

9. The contents of the FIR discloses that the applicant was engaged in a physical relationship with the victim.

10. The gravamen of the FIR is that the victim was blackmailed into a physical relationship with the applicant with threats of putting indecent videos of the victim's mother in public domain.

11. The applicant never captured any indecent photographs or videos of the victim or her mother nor circulated the same. No such indecent photographs or videos have been recovered from the applicant.

12. The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant or altered her family members. The conduct of the victim shows that the criminal case is false.

13. Significant variation in the statements of the victim under Sections 161 Cr.P.C. and Section 164 Cr.P.C. as well as the recitals in the F.I.R. discredit the prosecution case.

14. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

15. The mother of the prosecutrix is habitual of implicating peoples under false cases for extortion. Other cases were cited at the bar.

16. The applicant has explained his criminal history of one case which lodged by the mother of the victim. A final report was submitted in the aforesaid case.

17. The victim's mother has already approached the applicant in jail for a compromise after deposit of suitable sums of money. The victim mother told the applicant that he should gave offer to which she can't refuse.

18. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

Let the applicant- Chandan Kaushik be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

(iii) The learned trial court is directed to fix the sureties after due application of mind in light of the judgement passed by this Court in Arvind Singh v. State of U.P. Thru. Prin. Secy. Home Deptt. (Application U/S 482 No.2613 of 2023).

The learned trial court shall ensure that the right of bail of the applicant granted by this Court is not frustrated by arbitrary demands of sureties or onerous conditions which are unrelated to the socioeconomic status of the applicant.

Before parting some observations have to be made in the facts of this case. The learned trial court has failed to comply with the judgment rendered by this Court in Monish (supra) regarding the manner of consideration of age of the victim in bail applications filed by the accused persons under the POCSO Act.

A copy of this order as well as a copy of the judgment in Monish (supra) shall be provided to the learned District Judge, Jhansi to ensure that the learned trial courts are guided by the law laid down by this Court.

It is clarified that the above observations shall not be construed adversely against any judicial officer. "

8. Learned Senior Counsel has next invited the attention of Court to the F.I.R. giving rise to present criminal proceedings. With reference to above, he submits that there is delay of approximately three months in lodging the F.I.R. However, neither in the F.I.R. nor in the statement of first informant/opposite party-2 as recorded under section 161 Cr.P.C. any explanation has come forward with regard to the delay in lodging the F.I.R. Referring to the judgements of Supreme Court in P. Ramchandra Rao Vs. State of Karnataka (2002) 4 SCC 578, P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866/2019(5) SCC 403, Hasmukhlal D. Vora and Another Vs. State of U.P. (2022) 15 SCC 164, Sekaran Vs. State of Tamil Nadu (2024) 2 SCC 176, Shivendra Pratap Singh Thakur @ Banti Vs. State of Chhattisgarh and Others, 2024 SCC Online 938, the learned Senior counsel for applicant submits that on account of unexplained delay in lodging the FIR, the criminal prosecution of applicant cannot be sustained.

9. Much emphasis is laid upon paragraph 14 of the judgement in Shivendra Pratap Singh Thakur @ Banti (Supra), wherein Apex Court quashed the proceedings against the accused therein on account of unexplained delay of 39 days in lodging the F.I.R. On the above premise, it is thus contended by the learned Senior counsel that the impugned proceedings cannot be sustained and are, therefore, liable to be quashed by this Court.

10. According to the learned Senior counsel, in respect of the criminality alleged to have been committed by applicant, initially, an F.I.R. dated 18.03.2021 was lodged by the mother of the prosecutrix and was registered as Case Crime No. 0097 of 2021, under section 376, 328, 406 and 387 IPC. Copy of same is on record at page 242 of the paper book. In the body of aforesaid F.I.R. the date of incident is mentioned as 11.2.2021. However, neither the prosecutrix nor the first informant supported the F.I.R. Resultantly, a final report dated 10.4.2021 under section 173(2) was submitted by Investigating Officer. Same is on record at page 255 of the paper book. No protest petition was filed by first informant against police report submitted therein. Thereafter two private complaints were made, in which the matter was compromised as is evident from the documents occurring at pages 198 and 248 of the paper book. After the present F.I.R. was lodged, the protest petition was filed before the competent court by mother of the prosecturix against the final report/polise report dated 10.4.2021. Photocopy of the same is on record at page 242 of the paper book. On the cumulative strength of above, it is thus urged by the learned Senior counsel for applicant that present criminal proceedings are not only malicious but also an abuse of the process of Court. The same have been engineered to extract money from applicant. As such, the same are liable to be quashed by this Court.

11. Learned Senior Counsel for applicant has then placed the F.I.R's lodged against applicant. He has thereafter drawn a parallel and on basis thereof he contends that except for the change of dates, the prosecution story is almost similar. As the impugned proceedings are wholly malicious.

12. Learned Senior Counsel has placed another important fact before Court and that is the first informant, who is brother of the prosecutrix, was implicated in a criminal case. The copy of said F.I.R. is on record at page 207 of the paper book. The first informant, in his confessional statement before the Investigating Officer, took the name of present applicant. However, upon investigation, the Investigating Officer concluded that applicant is innocent. It was on account of aforesaid that the applicant was not taken into custody by Investigating Officer in the aforesaid case crime number. On the above conspectus, the learned Senior Counsel submits that no good ground exists to prolong the criminal prosecution of applicant. Therefore, present application is liable to be allowed.

13. Per contra, the learned A.G.A. representing State-opposite party-1 has opposed this application. Learned A.G.A. submits that during course of investigating, sufficient material was gathered by the Investigating Officer. As per the said material, the complicity of applicant in the crime in question is prima-facie established. Consequently, the applicant has been charge sheeted. It is then contended by the learned A.G.A. that since charges have been framed against applicant, therefore, no interference is warranted by this Court in favour of present applicant. Referring to the three Judges Bench judgment of Supreme Court in Tarun Jit Tejpal Vs. State of Goa, (2020) 14 SCC 556, the learned A.G.A. submits that it is by now well settled that the charges can be framed against an accused, if prima-facie, a triable case is made out and secondly, in the case of grave suspicion. On the above premise, the learned A.G.A. contends that no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned Senior counsel for applicant with reference to the record at this stage.

14. Having heard the learned Senior counsel for applicant, the learned A.G.A. for State and upon perusal of the record, this Court finds that the matter requires consideration.

15. Notice on behalf of opposite party - 1 has been accepted by learned A.G.A. Even though notice has been served upon opposite party-2 but neither any counter affidavit has been filed nor anyone has put in appearance on behalf of opposite party-2 to oppose this application.

16. All the opposite parties may file their respective counter affidavits within four weeks.

17. Applicant will have two weeks thereafter to file rejoinder affidavit.

18. List for admission on 18.2.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of present application as noted herein above, as an interim measure, it is, hereby, provided that until further orders of this Court, further proceedings of Sessions Case No. 432 of 2024 (State of U.P Vs. Chandan Kaushik) arising out of Case Crime No. 0025 of 2024, under Sections 376, 504, 506 IPC and Section POCSO Act, Police Station- Sipari Bazar, District-Jhansi, now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), Jhansi shall remain stayed.