Single judge held that extraordinary jurisdiction under Section 482 CrPC is not to be exercised merely to adjudicate disputed questions of fact like blackmail or rape allegations. Application to quash summoning order rejected as no infirmity found.
Application under Section 482 CrPC rejected; summoning order and proceedings upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Order Reserved on : 15.05.2019 Order Delivered on : 05.07.2019
Court No. - 77
Case :- APPLICATION U/S 482 No. - 12466 of 2019
Applicant :- Shree Prakash Tripathi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Prashant Vyas Counsel for Opposite Party :- G.A.,Ishwar Chandra Tyagi,Nirvikar Gupta
Hon'ble Umesh Chandra Tripathi,J.
[1]. Heard at length the arguments advanced by Shri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Shri Prashant Vyas, learned counsel for the applicant, Shri Ishwar Chandra Tyagi and Shri Nirvikar Gupta, learned counsel for opposite party no. 2 and learned A.G.A. for the State of Uttar Pradesh.
[2]. By way of instant application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Code'), prayer has been made on behalf of the applicant to quash the summoning order dated 12.03.2019 passed by Additional Chief Judicial Magistrate-III, Gautam Buddh Nagar as well as the entire proceedings of Case No. 1745 of 2019 (State v. S.P. Tripathi), arising out of Case Crime No. 784 of 2018, under Sections 376, 328, 506 of the Indian Penal Code, 1860 (for short 'IPC'), Police Station - Phase II, District- Gautam Buddh Nagar, pending in the Court of A.C.J.M.-III, Gautam Buddh Nagar.
[3]. Succinctly, facts of the case are that opposite party no. 2 Zoya Khan had filed an application under Section 156(3) of the Code with the allegation that she was in need of a flat. On 13.04.2018, accused-applicant Shree Prakash Tripathi called her nearby Radisson Hotel, Sector 18, Noida to show her a flat. He took her to his residence in his vehicle and gave her cold drink. After consuming the cold drink, she became unconscious. When she regained her consciousness, she found herself and the applicant in naked position and the applicant committing rape on her. When she tried to escape, applicant Shree Prakash Tripathi told her that he
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has made obscene videos of her and taken her obscene photographs. He also told her that if she dares to raise an alarm or tries to escape, he would upload her obscene videos and photos on social media. He also threatened to kill her. He snatched her mobile and told her to come at the place and time fixed by him. Thereafter, for about 3-4 months, the applicant called her at his residence several times and committed rape on her. When she told him that she would make a complaint to the police, he apologized to her and requested her to come at Sector 18, Noida so that he may return her mobile and delete her obscene videos and photos from his mobile. On 04.07.2018 at about 01.00 P.M., as soon as she reached at Sector 18, Nodia, applicant Shree Prakash Tripathi asked her to sit in his car. She sat in his car, whereafter she was apprehended by the police and sent to jail in a false case, in conspiracy with applicant Shree Prakash Tripathi. After being released from jail, due to shame and illness, she could not lodge her report. Later on, she appeared before the Senior Superintendent of Police, Gautam Buddh Nagar in person and presented an application, stating about the occurrence. Her report was not lodged by the police, whereafter she presented an application under Section 156(3) of the Code before the Magistrate concerned. On her application, first information report was lodged. After investigation, the police submitted charge-sheet against the applicant under Sections 376, 328, 506 of I.P.C.
[4]. Learned counsel for the applicant contended that opposite party no. 2 Zoya Khan had obtained mobile number of the applicant from some source. She contacted the applicant on 31.03.2018 and was in regular contact with him till 23.06.2018. They were talking to each other. After some time, she started blackmailing the applicant and demanding money from him. She was threatening the applicant that she will upload his obscene photos and videos on social media and his Whatsapp (a social networking mobile application) group. Thereafter, on 04.07.2018, the applicant lodged an F.I.R. against opposite party no. 2 at Case Crime No.
Application u/s 482 No. 12466 of 2019
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509 of 2018, under Sections 386, 507 of I.P.C., Police Station - Kasna, District - Gautam Buddh Nagar. Learned counsel for the applicant contended that in counterblast of the F.I.R. lodged by the applicant against opposite party no. 2, this report has been lodged maliciously, with false allegation, only to harass the applicant. On the same day, she was arrested by the police and Rs. 2 lacs of extortion money was recovered from her possession and she was sent to jail. She had physical relation with the applicant on her own sweet will. She was consenting party. Accordingly, no offence is made out against the applicant. The impugned order has been passed by learned Magistrate without assigning any reason, which is not sustainable in the eyes of law.
[5]. Per contra, learned A.G.A. and learned counsel for opposite party no. 2 contended that there is no infirmity in the impugned order passed by the trial court. Reliance has been placed on the judgments of Hon'ble Apex Court in Kanwar Pal Singh Gill v. State (Admn., UT. Chandigarh) through Secy. and Another1 with one connected case, Bhushan Kumar & Another v. State (NCT of Delhi) & Another2 and Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. & Others3 .
[6]. Learned counsel for opposite party no. 2 further contended that on the ground of delay in lodging of the F.I.R. and that the impugned order is not a reasoned one, proceedings cannot be quashed. The defence of the accused shall not be considered for exercise of inherent power to quash the proceedings. After investigation, on the information lodged by opposite party no. 2 Zoya Khan, the police has submitted charge-sheet on sufficient material.
[7]. From the perusal of the record, it reveals that applicant Shree Prakash Tripathi had lodged an F.I.R. at Case Crime No. 509 of 2018
1 (2005) 6 SCC 161
2 (2012) 5 SCC 424
3 (2008) 13 SCC 678
Application u/s 482 No. 12466 of 2019
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against opposite party no. 2 Zoya Khan, showing her name as Jaya Tiwari, under Sections 386, 507 of I.P.C., Police Station - Kasna, District - Gautam Buddh Nagar on 04.07.2018 at 06.39 P.M. As per first information report lodged by applicant Shree Prakash Tripathi, opposite party no. 2 told her name as Jaya Tiwari. On 13.04.2018, she went with the applicant to see his flat. During the period of their stay in the flat, she mixed some intoxicated substance in his drink, due to which he became unconscious. Thereafter, she undressed the applicant to have intercourse with her, but the applicant was not in a position to have intercourse with her. She silently recorded some videos and took some half-naked photographs of him. She laid naked on the body of the applicant with him and took his naked photographs and recorded videos silently. Thereafter, she started blackmailing and demanding money from the applicant and threatened that she would upload his obscene videos and photographs on social media as well as on his Whatsapp group. On the same day at 06.45 P.M., the applicant Shree Prakash Tripathi informed the police that girl who was blackmailing him, has called him with Rs. 2 lacs at Sector 18, Atta Market, Noida. On his information, the police reached on the spot and apprehended opposite party no. 2 and recovered Rs. 2 lacs delivered to her by the applicant. After investigation, the police has submitted charge-sheet against opposite party no. 2 under Sections 386, 507 of I.P.C. [8]. Opposite party no. 2 has lodged F.I.R. after being released on bail, in counterblast of the F.I.R. lodged by applicant Shree Prakash Tripathi. [9]. Hon'ble Apex Court in Kanwar Pal Singh Gill's case (supra) held that some delay in filing the complaint is not sufficient to reject the complaint put forward by the prosecutrix. In Bhushan Kumar's case (supra) Hon'ble Apex Court held that :
“.....the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order.” [10]. In the present case, allegation has been made by applicant Shree
Application u/s 482 No. 12466 of 2019
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Prakash Tripathi that opposite party no. 2 Zoya Khan was blackmailing him and extracting money by threatening him to upload his naked video and photographs on social media and also on his Whatsapp group. As per allegation made by opposite party no. 2, applicant Shree Prakash Tripathi was blackmailing her and committed rape on her several times by threatening to upload her naked video and photographs on social media. The fact whether applicant Shree Prakash Tripathi was blackmailing opposite party no. 2 Zoya Khan or vice-versa or both were blackmailing each other is not to be adjudicated upon by this Court in exercise of its extraordinary jurisdiction under Section 482 of the Code. It would be adjudicated upon by the trial court on the basis of evidence adduced before the trial court. In Suryalakshmi Cotton Mills Ltd.'s case (supra) , Hon'ble Apex Court held that :
Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact.
[11]. Accordingly, I find no ground to interfere in the impugned summoning order passed by the learned Magistrate.
[12]. In the result, the instant application stands rejected .
[13]. Interim order, if any, stands vacated.
Order Date :- July 5, 2019 I. Batabyal
[Umesh Chandra Tripathi, J.]
Application u/s 482 No. 12466 of 2019
2 issues framed by the court
Whether the trial court's summoning order under Section 15(3)(a) CrPC should be quashed in an alleged rape and extortion case.
Whether defense of an accused or delay in filing complaint warrants quashing of criminal proceedings under Section 482 CrPC.
Colour shows how this judgement treated each authority
Kanwar Pal Singh Gill v. State (Admn., UT. Chandigarh) through Secy. and AnotherRelied on¶19
(2005) 6 SCC 161 · Who else cites this
Bhushan Kumar & Another v. State (NCT of Delhi) & AnotherRelied on¶19
(2012) 5 SCC 424 · Who else cites this
Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. & OthersRelied on¶20
(2008) 13 SCC 678 · Who else cites this
2 provisions across 2 enactments
Shree Prakash Tripathi
Umesh Chandra Tripathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
