Dismissed

Hemlata and 2 Ors. v. State of U.P. and Another

Allahabad HC20 Feb 2020A482/6974/2020

Case brief

AI extract

What is this about?

The court dismissed an application under S. 482 Cr.P.C. seeking quashing of criminal proceedings alleging rape and cognizable offences. Holding that sexual offences are crimes against society, the court ruled that discrepancies in statements and family disputes are factual issues for the trial court, and compromise cannot quash rape charges.

What did the court decide?

Relief sought through the instant application is refused; application dismissed for lack of merit.

Hemlata and 2 Ors. Vs State of U.P… — Constitutional and Fundamental Rights | Allahabad HC (2020)

A.F.R.

Court No. - 77

Case :- APPLICATION U/S 482 No. - 6974 of 2020

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Applicant :- Hemlata And 2 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Swati Agrawal Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard Mrs. Swati Agrawal Srivastava, learned counsel for the applicants, Sri Rabindra Kumar Singh, learned Additional Government Advocate assisted by Sri Prashant Kumar Singh, learned Brief Holder for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.

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This application under Section 482 Cr.P.C. has been filed by the applicants to quash the entire proceedings of case no. 10 of 2020 (State Vs. Ram Milan @ Pintu and others) arising out of case crime no. 301 of 2019, under Sections 323, 328, 376, 120B IPC, Police Station Pipari, District -Kaushambi pending in the court of learned Magistrate, Kaushambi.

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In short compass, the facts of this case are that FIR of the prosecutrix/opposite party no.2 was registered on 30.07.2019 through an application under Section 156(3) Cr.P.C. dated 24.06.2019 with regard to alleged incident dated 21.12.2016 making allegation interalia that her father was admitted in P.G.I., Lucknow. She along with her husband (applicant no.2) had gone to see and take care of him on 21.12.2016. On returning in the night at about 9.00 P.M., her husband took her in the house of applicant no.3, where she was stayed in the night. Accused persons fed her at night mixing alcoholic substance in the food, due to which she fell asleep. Next day in the morning when she wake up, she found her in naked condition and accused-applicants

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were found standing there. It is further alleged that on raising objection by her, she was shown a video by the applicants and threatened that if she will disclose anything, the said video will be uploaded on Whatsapp, Facebook and it will be given to all news channels. It is also alleged that she was afraid and applicant no.3 (Ram Bahadur) used to commit rape upon her in collusion with applicant nos. 1 and 2, because her husband (applicant no.2) was having illicit relation with applicant no.1 (wife of applicant no.3/Ram Bahadur). It is also alleged that on 25.05.2019, when she was alone in her house, the applicants along with unknown persons came there and insisted her to have sex with that unknown persons. On making resistance, she was beaten by them and thereafter on 26.05.2019 she went to her Maika saving her life and told her mother what had happened with her. It is also mentioned that on 3.6.2019 information about the said incident was given by prosecutrix/opposite party no.2 personally to Superintendent of Police, Kaushambi as well as other officers, sending her application by registered post, but no action was taken. Thereafter, she moved an application under Section 156(3) Cr.P.C. before the Magistrate concerned seeking direction to get her First Information Report registered. During investigation, statement of victim/prosecutrix under Section 161 Cr.P.C. was recorded on 1.8.2019 and statement under Section 164 Cr.P.C. was recorded on 13.08.2019, in which she has reiterated her version as mentioned in the FIR. X-ray of the prosecutrix was done on 8.8.2019 and as per radiological report, age of the prosecutrix was found 20-25 years. Investigating Officer, after investigation submitted charge-sheet dated 11.01.2020 against applicant nos. 1 and 2 under Sections 323, 328, 120B IPC and against applicant no.3 under Sections 323, 328, 376, 120B IPC.

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On the aforesaid fact, it is submitted by learned counsel for the applicants that applicant no.1 is cousin sister-in-law ( Jethani) , applicant no.2 is husband and applicant no.3 is cousin brother-in-law ( Jeith) of the prosecutrix/opposite party no.2. There is a family dispute between the applicant no.2 and opposite party no.2, therefore, applicants have been falsely implicated in this case. There are major contradiction in the version of FIR, statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the victim/prosecutrix. Statement under Section 164 Cr.P.C. of victim was recorded on 13.08.2019, in which she has stated that since last four months she is living in her Maika. Giving much emphasis on the said averment, it is submitted by learned counsel for the applicants that meaning thereby since April, 2019 she was living in her parental house ( Maika ), but in the FIR she has shown one of the incident dated 25.05.2019 and also mentioned that she went to her Maika on 26.05.2019. As such, one of the date of incident is not corroborated from the statement of victim. It is also submitted that since the opposite party no.2 has no brother and she has three sisters, therefore, opposite party no.2 and her parents were insisting applicant no.2 (husband of victim) to live in in-law's house, but on refusal of the said proposal of opposite party no.2 by the applicant no.2, the dispute arose between them. It is also submitted that so far as allegation of making video is concerned, there is no alleged video clipping is on record in this case, while charge-sheet has been submitted in the present case. It is further submitted that though the allegations have been levelled against the applicants, but there is no corroborative evidence on record in support thereof. It is next submitted that in the medical examination report dated 7.8.2019 of victim, no external or internal injury has been found. It is further submitted that applicants, namely, Hemlata, Ram Milan @ Pintu and Ram Bahadur have already been granted bail vide orders dated

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6.1.2020, 17.1.2020 and 20.12.2019 passed in Criminal Misc. Bail Application Nos. 56539 of 2019, 2698 of 2020 and 57610 of 2019 respectively by the co-ordinate Bench of this Court. The prosecution story as set up by opposite party no.2 in order to settle her personal score is not liable to be believed and criminal proceedings in this case against the applicants is nothing but abuse of the process of the Court, therefore, same is liable to be quashed. Lastly, it is submitted that in case this Court is not inclined to quash the proceedings, then this matter may be referred to mediation and conciliation center of this Court, because applicants are also willing to settle the issue by way of compromise/mediation.

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Per contra, learned Additional Government Advocate for the State of U.P. refuting the submissions advanced on behalf of the applicants submitted that upon perusal of First Information Report and on the basis of the allegations made therein as well as material evidence against the accused-applicants, as per prosecution case, the cognizable offence against the applicants is made out. The criminal proceedings against the applicants cannot be said to be abuse of the process of the Court. Hence, this application is liable to be dismissed. It is also pointed out that in the present application charge-sheet dated 11.01.2020 filed against the accused-applicants has not been challenged, therefore, prayer of the applicants to quash the entire criminal proceedings of the case, without challenging the charge-sheet filed against them, is not maintainable.

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After having heard the submissions of the learned counsel for the parties and perusing the entire record, I find that there is specific allegation of committing rape upon the victim/opposite party no.2 against applicant no.3 (Ram Bahadur). The connivance and involvement of applicant nos. 1 and 2 in the aforesaid incident has

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also been mentioned in the First Information Report showing the motive against the applicants mentioning that since her husband (applicant no.2) is having illicit relation with applicant no.1 (wife of applicant no.3), therefore, applicant nos. 1 and 2 in lieu thereof were insisting the victim to establish physical relationship with applicant no.3 (Ram Bahadur). I also find that in this case, allegation of wife swapping has been levelled by the victim/opposite party no.2 against the accused-applicants. Victim in her statements under Section 161 and 164 Cr.P.C. have supported the prosecution case reiterating the main allegations against the accused-applicants. At the time of medical examination of victim, the doctor concerned has also noted the brief description of the incident as narrated by the victim, in which also, victim has made similar allegation against the applicants. Though, it is submitted from the side of accused-applicants that it is a family dispute, but no documentary evidence has been brought on record alongwith this application except oral submissions made on behalf of the applicants. The grounds taken in the application reveal that many of them relate to disputed question of fact. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety, do not disclose the commission of any offence against the

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accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage. Factual submissions and defence as raised in the application can be more appropriately gone into by the trial court at the appropriate stage. The applicants have an alternative statutory remedy of moving discharge application at the appropriate stage.

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The Apex Court in the case of Md. Allauddin Khan Vs. The State of Bihar and others 2019 (6) SCC 107 has laid down the jurisdiction of High Court under Section 482 Cr.P.C. The observation made by the Apex Court in paragraph No.17 is reproduced herein below:

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"In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."

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The Apex Court on 31.01.2020 in the case of State of Madhya Pradesh Vs. Yogendra Singh Jadon and another passed in Criminal Appeal No. 175 of 2020 has held that 'power under Section 482 of the Code of Criminal Procedure cannot be exercised where the allegations are required to be proved in court of law'.

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Recently on 11.02.2020, the Apex Court in case of Rajeev Kourav Vs. Baisahab and others passed in Criminal Appeal No. 232 of 2020 (arising out of S.L.P. (Crl.) No. 1174 of 2017) has held that quashing the criminal proceedings by the High Court on the basis of its assessment of the statements recorded under Section 161 Cr.P.C. is not proper. The relevant paragraph nos. 8, 9, 10 and 11 of the aforesaid judgment are as under:-

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"8. We do not agree with the submissions made on behalf of

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Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 Cr.P.C.

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9. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos.1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr. P.C.

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10. We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos.1 to 3 would have a fair opportunity to prove their innocence.

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11. For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed."

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So far as submission of learned counsel for the applicants that the applicants are willing to settle the issue by way of compromise/settlement is concerned, it is relevant to mention that Three Judge Bench of the Apex Court in the matter of State of Madhya Pradesh Vs. Laxmi Narayan and others AIR 2019 SC 1296 considering the guideline laid down by the Apex Court in case of Parbatbhai Aahir Vs. State of Gujarat (2017) 9 SCC 641 has ruled that the criminal proceedings for the offence of "rape" cannot be quashed merely on the basis of compromise made between the victim and offender. The guideline laid down by the Apex Court in paragraph 13 of the said judgment is reproduced herein-below:-

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"13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

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i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable

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offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

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ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

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iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;

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iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc., which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

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v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of noncompoundable offences, which are private in nature and do

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not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."

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Here it is also apposite to mention that in case of Ramphal Vs. State of Haryana AIR Online 2019 SC 1716 it was brought to the notice of the Apex Court that during pendency of appeal, the appellants, who have been convicted by the trial court, have paid Rs. 1.5 lakhs each in favour of the prosecutrix and she has accepted the same willingly for getting the matter compromised. On the said fact, the Apex Court has observed that “it is imperative to emphasis that we do not accept such compromise in matters relating to offence of rape and similar cases of sexual assault”.

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Apex Court on 10.02.2020 in case of Arun Singh and others Vs. State of U.P. through its Secretary and another passed in Criminal Appeal No. 250 of 2020 while considering case under Section 493 I.P.C. and 3 read with Section 4 of Dowry Prohibition Act did not approve the issue of compromise in such offences, which are against the society and not private in nature. The relevant observation made by the Apex Court in paragraph no. 15 of the said judgment is quoted herein-below:-

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“15. Bearing in mind the above principles which have been laid down, we are of the view that offences for which the appellants have been charged are infact offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overridding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to

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quash the F.I.R. or the charge sheet”.

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13. In Bodhi Sattwa Gautam Vs. Subhra Chakraborty, AIR 1996

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SC 922 , the Hon'ble Supreme Court observed, inter alia, as under:-

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"Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life.

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Women, in them, have many personalities combined. They are mother, daughter, sister and wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.

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Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."

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Sexual offences constitute an altogether different class of crime which is the result of a perverse mind. By their very nature these crimes cannot be treated at par with matrimonial offence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right of privacy and sanctity of a female and is a serious blow to her supreme honor offending her self-esteem and dignity. Allowing

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quashing of charge-sheet, pursuant to a compromise, will, in such cases, only embolden the perpetrators of such crimes, which otherwise are on the increase, in society. If the accused in such a case is an affluent person and the prosecutrix comes from a socially or economically weaker strata of the society, quashing in such a case would only encourage commission of such offences, as the accused, using his money power or otherwise, may be able to induce the prosecutrix/victim to enter in to settlement with him and then seek quashing of criminal proceedings, on the strength of that settlement.

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This Court does not find that this case fall in categories as recognized by the Apex Court for quashing the criminal proceedings of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. At this stage, it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. The impugned criminal proceedings under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court.

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The relief as sought by the applicants through the instant application is hereby refused.

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This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed .

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Office is directed to communicate this order to the concerned court below as well as victim/opposite party no.2 of this case within two weeks.

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Order Date :- 20.2.2020 AK Pandey

Hemlata and 2 Ors. v. State of U.P. and Another

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Hemlata and 2 Ors. v. State of U.P. and Another

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