In an application under Section 482 Cr.P.C. to quash summoning order in a rape and POCSO case, the court held that prima facie offence was made out based on complaints and statements; citation distinguished; application dismissed for no merit.
Application under Section 482 Cr.P.C. dismissed; proceedings based on complaint cannot be quashed.
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.
Court No. - 75
Case :- APPLICATION U/S 482 No. - 42005 of 2019
Applicant :- Manoj Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vineet Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant and learned A.G.A.
The applicant has filed this application under section 482 Cr.P.C. with the prayer to quash the order dated 26.9.2019 passed by Additional Sessions Judge, court No.1, Maharajganj in Special Sessions Case No. 391 of 2019, State Vs. Manoj Gupta, arising out of complaint No. 26 of 2018, Khairunisha Vs. Manoj Gupta, under section 452, 376, 506 I.P.C. and section 3/4 of POCSO Act 2012, P.S. Kotwali, District Maharajganj.
As per the allegations made in the complaint, it is alleged that on 26.3.2018 at about 9.00 p.m. the applicant forcibly entered into the house of O.P. No.2 and committed rape upon her minor daughter aged about 16 years, putting her under fear of death by placing a knife on her chest. On the basis of the said allegations made in the complaint, learned magistrate recorded the statement of the complainant, Khairunisha under section 200 Cr.P.C. in which she has reiterated the allegations made in the complaint of committing rape upon her minor daughter by the applicant by putting her under fear of death by placing a knife on her chest. Similarly the victim Sufia alias Shabbonisha in her statement recorded under section 202 Cr.P.C. has also categorically stated that on the date of incident at about 9.00 p.m. the applicant forcibly entered in her house and by placing a knife on her chest and threatening her for life committed rape upon her and has reiterated the prosecution story as mentioned in the complaint. On the basis of the allegations made in the complaint and after recording the statements of the witnesses including the victim under section 200 and 202 Cr.P.C. the court below summoned the applicant to face trial under section 452, 376, 506 I.P.C. and section 3/4 of POCSO Act.
Learned counsel for the applicant has submitted that the applicant is wholly Innocent and has been falsely implicated in the present case. The incident is said to have taken place on 26.3.2018, however, the application for registration of the case under section 156(3) Cr.P.C. was filed on 7.4.2018 as such there is considerable delay in lodging the complaint against the applicant.
Learned counsel for the applicant has next submitted that father of the victim has forcibly encroached upon a plot
belonging to the applicant and in order to dispossess him from the said plot the applicant had given several applications to the concerned Administrative Authorities as well as the police to remove his encroachment and in backdrop of the said circumstances with a malafide intention, the present criminal proceedings has been initiated against the applicant.
Learned counsel for the applicant has next drawn the attention of the court to the various applications given by the applicant to the higher authorities for removing of the encroachment made by father of the victim and the administrative authorities after making requisite enquiry has asked the applicant to approach the revenue authorities in order to redress his grievance.
Learned counsel for the applicant has next submitted that there is no medical report to support the prosecution story,
Learned counsel for the applicant has placed reliance upon the decision of Hon'ble Apex Court passed in the case of Vineet Kumar and others Vs. State of U.P and another, reported in (20017)13, SCC, 369 and submitted that the case of applicant is squarely covered by the aforesaid decision of the Hon'ble Apex Court and as such the entire proceedings of the aforementioned complaint case is liable to be quashed. .
Per contra, learned A.G.A. has submitted that the serious allegations of forcibly entering into the house of the victim when she was all alone and committing rape upon her by placing a knife on her chest is made against the applicant. The allegation of rape has categorically been reiterated by the complainant in her statement recorded under section 200 Cr.P.C. and by the victim also in her statement recorded under section 202 Cr.P.C. There is absolutely no delay in lodging the report against the applicant as in the complaint itself it has been categorically stated that the complainant immediately after the incident had informed the police about the incident at the concerned police station, however, no action was taken. Even after informing the higher police authorities no action was taken as such the application under section 156(3) Cr.P.C. was filed by mother of the victim which was treated as a complaint and learned magistrate after considering the allegations of rape made in the complaint and making requisite enquiry under section 200 and 202 Cr.P.C has summoned the applicant to face trial, thus, there is no delay in lodging the complaint.
Learned A.G.A. has next submitted that so far as the dispute regarding encroachment of the applicant’s land is alleged to be made, the applicant admittedly had approached the higher authorities and he had been advised to raise his grievances before the revenue
authorities, however, there is no material on record to show that the applicant has ever approached the revenue authorities and the applicant just to set up his defence has raised the plea that the present prosecution has been initiated against the applicant as a counterblast to his act of raising his grievance regarding encroachment of the land by the victim’s father.
Learned A.G.A. has next submitted that the incident is said to have taken place on 26.3.2018 and immediately thereafter the victim's mother has approached the police of concerned police station as well as higher police authorities to lodge the F.I.R. but her F.I.R. was not lodged and she was also not sent for medical examination. Moreover, the complainant as well as the victim in her statement recorded under section 200 and 202 Cr.P.C. has stated that she was forcibly subjected to rape by the applicant by placing a knife on her chest and from the said allegation made in the complaint as reiterated in the statements of the witnesses under section 200 and 202 Cr.P.C. primafacie offence is clearly made out against the applicant which is sufficient to summon the applicant to face trial. The falsity of the allegation against the applicant can not be determined at this stage when the evidence is yet to come. There is no illegality or infirmity in the impugned order summoning the applicant to face trial and the present application under section 482 Cr.P.C. is liable to be dismissed.
Learned A.G.A. has next submitted that the case law cited (Supra) by the learned counsel for the applicant is based on entirely different facts and is not applicable in the facts of the present case.
Having considered the rival submissions made by learned counsel for parties and taking into consideration specific allegations made in the complaint which have also been reiterated in the statement of the victim recorded under section 200 and 202 Cr.P.C., primafaice, an offence is clearly made out against the applicant. The disputed defence of the accused can not be considered at this stage when the evidence is yet to come. Merely because the victim was not medically examined though the complainant approached the police as well as the higher police authorities to lodge the report but no avail as such after eleven days an application under section 156(3) Cr.P.C. was filed with the prayer to direct the concerned police station to lodge an F.I.R. There is nothing on record to show that the applicant ever refused to get her medically examined and as such in the backdrop of the facts of the present case the entire proceedings at this stage can not be quashed when the evidence is yet to come. Moreover, the case law cited by the learned counsel for the applicant in support of his contention is clearly distinguishable on the facts of the present case and is not applicable in the present case.
In view of above, I do not find any illegality or infirmity in the impugned order passed by learned court below as such the entire proceedings based on the complaint can not be quashed at this stage.
The application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed.
Order Date :- 29.11.2019 R
1 issue framed by the court
Whether the allegations of rape and threat to life make out a prima facie offence justifying trial summons.
Colour shows how this judgement treated each authority
Vineet Kumar and others Vs. State of U.P. and anotherDistinguished¶18
Vineet Kumar and others Vs. State of U.P and another, reported in (20017)13, SCC, 369
3 provisions across 3 enactments
Manoj Gupta
State of U.P.
Rajiv Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
