Dismissed

Mohd. Nazim and 4 Others v. State of U.P. and Another

Allahabad HC11 Jul 2019A482/24649/2019

Case brief

AI extract

What is this about?

In this Section 482 application, the applicants sought quashing of a summoning order in a rape case. The High Court dismissed the application, holding that the trial court correctly exercised its powers to summon the accused based on sufficient evidence collected by the investigation officer and supported by the victim's statements.

What did the court decide?

Application under Section 482 Cr.P.C. for quashing the summoning order in the underlying rape case was dismissed.

Mohd. Nazim and 4 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 24649 of 2019

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Applicant :- Mohd. Nazim And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ram Suphal Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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Heard Sri Ram Suphal Shukla, learned counsel for the applicants and Sri B.A. Khan, learned A.G.A. for the State.

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This Application under Section 482 Cr.P.C. has been filed with a prayer to set-aside the order dated 13.03.2019 passed by Judicial Magistrate, Baheri, District Bareilly and entire proceeding of the impugned Criminal Case No. 529 of 2019 arising out of F.R. No. 35 of 2015 dated 29.03.2015 out of Crime No. 695 of 2014 under Sections 452, 376, 323 and 506 I.P.C., P.S. Baheri, District Bareilly pending in the Court of J.M., Baheri, District Bareilly.

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Learned counsel for the applicants argued that the contents of the F.I.R. are so improbable that the version of the prosecution cannot be believed to the extent that the mother of the victim was lying in a separate room and the victim would be raped by the accused applicants. Further he has argued that when final report was submitted by the police after investigation, the trial court ought to have registered protest petition as complaint and, thereafter it should have recorded the statement of witnesses which the victim and complainant side would have extended. No such procedure was followed and straight-way, the accused applicants have been summoned erroneously and malafidely, hence impugned order along with entire criminal proceedings arising out of the said order need to be quashed.

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Learned counsel for the applicants has relied upon the judgement of Anil Kumar Chauhan Vs. State of U.P. and Another 2004 (II) UPCrR 161 in which he has drawn attention to following paragraph:

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"Reliance was placed on a Division Bench decision of this Court in Pakhando v. State of U. P., (2001) 43 ACC 1096.

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5 . I have gone through the decision relied upon by the revisionist. The Division Bench placing reliance on several decisions of the

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Apex Court has laid down that when the Magistrate receives final report, four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require. It is well settled that before accepting or rejecting the final report, the informant has to be heard and he must be given an opportunity of hearing. Therefore, after giving an opportunity of hearing to the informant, the Magistrate may agree with the conclusions of the I.O. and accept the report or he may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency when he finds that there is sufficient grounds to proceed. Thirdly, the Magistrate may order further investigation when it is found that investigation was made in a perfunctory manner. Lastly, the Magistrate may without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Therefore, the legal position is very clear on the point involved in this revision."

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The facts of this case were that the protest petition was filed before the Magistrate along with accompanying affidavit and on that basis, Magistrate has found primafacie case made out under Section 392 I.P.C. which was found to be an erroneous order while in the present case, the facts are totally different as on the basis of the evidence recorded by the I.O. under section 161 Cr.P.C., the summoning order has been passed taking cognizance under Section 190(1)(b) and, accordingly, the present case falls in the above quoted course no. two that he has taken cognizance under Section .

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Reliance is placed by him upon the judgement of Anil Kumar Vashisth Vs. State of U.P. 2010 (1) UPCrR 77 in which it is held that even if final report has been accepted, cognizance of offence can be taken on complaint/ protest petition of the complainant on similar allegations. Such protest petition would be treated as complaint and procedure of Sections 200 and 202 Cr.P.C. would be followed.

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There is no quarrel with the said principle of law laid down in the said ruling but the same is not applicable here because on the basis of evidence collected by the I.O., the Magistrate has taken cognizance under Section 190 (1)(b).

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He has relied upon the law laid down in Ramji Rao Vs. State of U.P. 2018 (1) UPCrR 451 in which prayer for quashing of the summoning order has been refused in case

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wherein the Magistrate had found prima-facie case made out against the accused on material on record and the complaint. The facts of this case are also distinguishable from the facts of the present case.

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Reliance is also prayed upon the judgement of Ashok Chawla Vs. State of U.P. 2018 (1) UPCrR 747 In this case final report was submitted whereafter Protest Petition was filed and the Magistrate summoned the accused treating the affidavits as statements under Section 200 and 202 Cr.P.C. which was held improper as affidavits do not amount to statement under the above-mentioned sections, therefore, the facts of the present case are distinguishable from the facts of this case.

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Reliance is further placed upon the judgement of Preeti Gupta Vs. State of Jharkhand 2010 (3) UPCrR 141 in which it is held that Application under Section 482 Cr.P.C., inherent power should be exercised in order to prevent injustice and to secure justice.

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I do not have any quarrel with the principles of law laid down in above mentioned rulings. But the present case is not one in which interference is required as the order falls within domain of law.

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Learned A.G.A. has opposed the prayer of quashing and has drawn attention of the Court towards statement recorded under Section 161 and 164 Cr.P.C of the victim in which the victim has totally supported the prosecution version about committing of rape upon her and doing marpeet by the accused applicants along with co-accused.

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I have gone through the impugned order.

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The trial court has recorded that from the perusal of the F.I.R., got registered by the O.P. No.2, it is clear that Md. Nazim and Guddu, applicant nos. 1 and 2 respectively committed rape upon her and she has repeated the same story in her statement under Section 164 Cr.P.C. recorded on 20.08.2014, thereafter, she has further stated on 13.11.2014 that Guddu, Md. Nazim and other co-accused had also entered her house and had done mar-peet with her and had set her house on fire. The I.O. had also recorded statement of some independent witnesses but even then he has filed final report. The trial court has given its opinion that the sufficient evidence is there against the accused applicants on record, particularly when the victim has also supported the prosecution version, hence I.O. has

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erroneously disbelieved the statement of victim and has falsely submitted final report in this matter and after rejecting the same, the accused applicants have been summoned by the trial court under the above-mentioned sections to face trial. The bare perusal of the impugned order would indicate that the summoning order which was passed by the trial court was well within its powers and after the submission of the final report, the trial court after issuing notice to the informant, finding that the evidence was sufficient in the Case Diary, could have summoned the accused straightway which it has done. In case there was no sufficient evidence in the Case Diary then the protest petition could be registered as a complaint, then opportunity could have given to the complainant/informant/ victim to adduce evidence and thereafter the trial court could form its opinion whether to summon the accused or not. The third option was also available with the trial court to direct the police to make further investigation.

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Out of the above options, the trial court has rightly exercised its powers to summon the accused-applicants under the above-mentioned sections on the basis of the evidence on record.

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In view of the above, I do not see any infirmity in the impugned order, hence this Application under Section 482 Cr.P.C. deserves to be dismissed and is, accordingly, dismissed.

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Order Date :- 11.7.2019 A. Mandhani

Mohd. Nazim and 4 Others v. State of U.P. and Another

Case brief

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Mohd. Nazim and 4 Others v. State of U.P. and Another

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