Dismissed

Lavkush Mishra @ Vineet Mishra v. State of U.P. and Another

Allahabad HC18 Jul 2019A482/27719/2019

Case brief

AI extract

What is this about?

Applicant sought quashing of charge sheet in a rape case alleging false implication and procedural irregularities. Court held that factual disputes cannot be adjudicated in quashing proceedings. Application for quashing was refused; trial court directed to decide discharge application within 30 days with no coercive action during that period.

What did the court decide?

Prayer for quashing of charge sheet is refused; applicant directed to move discharge application; no coercive action for 30 days.

Lavkush Mishra @ Vineet Mishra Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 27719 of 2019 Applicant :- Lavkush Mishra @ Vineet Mishra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dinesh Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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Heard Sri Dinesh Kumar, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.

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The present application has been filed with a prayer to quash the charge-sheet dated 20.02.2018 as well as entire proceedings of Case No. 842/2018 related to Case Crime No. 837 of 2017 U/s 376 and 506 I.P.C., P.S.- Paikauliya, District- Basti.

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It is argued by the learned counsel for the applicant that the accused applicant has been falsely implicated in this case by Opposite Party No. 2; accused applicant and opposite party No. 2 have married each other and in this regard, attention has been drawn towards page 38 of paper book in which certificate of marriage has been annexed but before which authority, it has been sworn, has not been made clear in the aforesaid certificate. Learned counsel for the applicant has further drawn attention towards the photographs of both the parties. He has also drawn attention of this Court towards page 44 of the paper book where statement of victim recorded under Section 164 Cr.P.C. has been annexed in which it is clearly stated by her that on 06.08.2010 she had gone to the studio of accused applicant for getting the photograph prepared and at that time she was given some noxious substance in tea and thereafter when she fell unconscious, she was raped and video clipping of the same was also prepared by the accused applicant. It is further argued that the F.I.R. has been lodged 10 years after the said incident which shows the malicious prosecution of the applicant which needs to be quashed. He has also drawn attention of the Court towards page 76 of the paper book in which opinion of doctor has been annexed and in the same the doctor has clearly stated that no opinion of rape can be given in this case. He has also drawn attention of this Court towards page 90 of the paper book in which the details of the C.D.R. have been given and after citing the same, it is argued that both the parties were having regular talk on mobile phone. It is further argued that father of the victim wanted to marry her somewhere else and it was not the accused who had denied to marry Opposite Party No. 2 rather it was denied on behalf of the father of Opposite Party No. 2. The accused applicant has also moved a petition under Section 9 of

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the Hindu Marriage Act which is still pending. On page 104 he has also shown the order passed by Coordinate Bench of this Court in Crl. Misc. Writ Petition No. 712 of 2018 on 16.01.2018 in which interim protection was given against arrest to the accused applicant till submission of police report.

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Learned A.G.A. has vehemently opposed the prayer of quashing and stated that on the basis of F.I.R. cognizable offence is made out and hence charge-sheet cannot be quashed on the basis of evidence on record.

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I have gone through the F.I.R.

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It is mentioned in the F.I.R. that in the month of August, 2010 this occurrence happened when the opposite party No. 2 had gone to the shop of the accused for getting herself photographed. At the shop of accused applicant, she was administered some noxious substance in tea whereafter she became unconscious thereafter she was raped by accused applicant and her video clipping was also made. After the investigation the police has submitted the charge-sheet against the accused applicant. Whatever statements have been recorded by the I.O. cannot be scrutinized at this stage in proceedings under Section 482 Cr.P.C.

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The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.

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From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9 . The disputed defense of the accused cannot be considered at this stage.

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moved or the same is rejected on merit within the aforesaid period, the trial court shall proceed in accordance with law. The committal court shall commit the case within seven days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to stick to time limit for disposal of discharge application.The prayer for quashing the proceedings is refused.

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The trial court is directed to decide the discharge application within 30 days from today, if such an application is moved by the applicant. For a period of 30 days from today, no coercive action shall be taken against the accused-applicant in the aforesaid case. However, in case the discharge application is not moved or the same is rejected on merit within the aforesaid period, the trial court shall proceed in accordance with law. The committal court shall commit the case within seven days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to stick to time limit for disposal of discharge application.

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With the aforesaid direction, this Application under Section 482 Cr.P.C. is disposed of.

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Order Date :- 18.7.2019 AS Rathor

Lavkush Mishra @ Vineet Mishra v. State of U.P. and Another

Case brief

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Lavkush Mishra @ Vineet Mishra v. State of U.P. and Another

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