Dismissed

Rohit Jaiswal v. State of U.P. and Another

Allahabad HC31 May 2022A482/19550/2021

Case brief

AI extract

What is this about?

In this Section 482 Cr.P.C. application, the applicant sought quashing of a rape charge-sheet alleging a relationship turned into extortion. The Court held that deciding consent or assessing evidence credibility is for the trial court and found no mala fide. The application was dismissed.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; no quashing of charge-sheet or proceedings.

Rohit Jaiswal Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2022)

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Court No. - 70

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Case :- APPLICATION U/S 482 No. - 19550 of 2021

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Applicant :- Rohit Jaiswal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bhavya Sahai Counsel for Opposite Party :- G.A.,Lalji Yadav,Yashpal Yadav

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Hon'ble Raj Beer Singh,J.

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Heard Sri Brijesh Sahai, learned Senior Counsel assisted by Sri Bhavya Sahai, learned counsel for the applicant, Sri Sunil Yadav, learned Advocate holding brief of Sri Yashpal Yadav, learned counsel for the complainant and learned AGA for the State.

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By means of this application under section 482 Cr.P.C., the applicant has invoked the inherent jurisdiction of this Court for quashing of the charge-sheet dated 27.11.2020 as well as the entire proceedings of Case Crime No.0069/2020, under Section 376, 504, 506 IPC and under Section 3(2)(v) SC/ST Act and under Section 66E I.T. Act, P.S. Bansgaon, District Gorakhpur, pending in the Court of Special Judge SC/ST Court, Gorakhpur.

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It has been argued by the learned Senior Counsel that no prima facie case is made out against applicant and that charge-sheet has been submitted in a routine manner without proper investigation. Referring to facts of the matter, it is submitted that prosecutrix is a major and working lady, aged 27 years, and that applicant and prosecutrix/opposite party no.2 were in a romantic relationship since the year 2019 and that fact is apparent from the record of whats-app chatting, the copies of which have been annexed as annexure-2 to this application. It was submitted that said relationship between them came to an end and thereafter the prosecutrix has lodged first information report of this case out of vengeance in order to extort money

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from the applicant. Statements of prosecutrix, recorded under Section 161 and 164 CrPC, were also referred and it was submitted by learned Senior Counsel that from her statement as well as from all attending facts of the case, it it quite clear that their relationship was consensual. After registration of the first information report, the applicant has filed a Criminal Misc. Writ Petition No.-5277 of 2021, wherein by order dated 15.06.2020, it was directed that petitioner shall not be arrested till submission of police report under Section 173(2) CrPC. It was submitted that the first information report is misconceived and it has been registered with mala fide intention and that chargesheet has been submitted mechanically for offences under Section 376, 504, 506 IPC, under Section 3(2)(v) SC/ST Act and under Section 66-E I.T. Act. Learned Senior Counsel submitted that in view of the above stated facts of the matter, no case is made out against applicant and thus the impugned charge-sheet and proceedings are abuse of the process of law and thus, liable to be quashed.

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Per contra learned A.G.A. submitted that in the first information report, the prosecutrix has clearly stated that on pretext of providing Government Job, the applicant has taken the prosecutrix to Delhi and there he administered some intoxicant in her cold-drink and thereafter committed rape upon her and he has also prepared her video. It was also mentioned in the first information report that after the said incident, the applicant has committed rape upon her for several times by threatening that he would make her video viral. Learned AGA further submitted that in her statement under Section 164 CrPC, the prosecutrix has reiterated the same facts and stated that on pretext of providing job, she was taken by the applicant to Delhi and there he has given some cold-drink to her and thereafter, he did bad act with her and that he has also prepared her video. It was

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submitted that from the perusal of the material on record and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against the applicant.

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At the outset, it was mentioned that applicant has not challenged the summoning order passed by the court below, nor the same has been appended with the present application. Thus, it is not clear whether the applicant has been summoned so far or not. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal , Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. In that case Bhajan Lal (Supra), Hon'ble Apex Court has held as under:-

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"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the

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complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

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In the instant matter, prosecutrix has made clear allegations that on pretext of providing job, applicant has taken her to Delhi and there he committed rape upon her. It is correct that from the whats-app chatting record, it appears that applicant and prosecutrix were in a relationship but this question of fact whether the physical relations with prosecutrix were established by the applicant with or without her consent, cannot be decided by this Court in this application under Section 482 CrPC. Regarding the questions of consent of victim, the presumption provided under Section 114-B Evidence Act, may also be referred.

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The submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the

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submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice.

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After considering arguments raised by the learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 Cr.PC. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C.

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Considering the submissions of learned counsel for the parties and the fact of the matter, and also considering the well settled law laid down by Hon'ble Supreme Court in case of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and Zandu

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Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Cr.) 283, no case for quashing of the impugned charge sheet or proceedings is made out.

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The application lacks merit and thus, liable to be dismissed. Application under Section 482 CrPC is hereby dismissed.

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Order Date :- 31.5.2022 Neeraj

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Digitally signed by NEERAJ KUMAR SINGH Date: 2022.06.06 10:35:51 IST Reason: Location: High Court of Judicature at Allahabad

Rohit Jaiswal v. State of U.P. and Another

Case brief

What is this about?

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Rohit Jaiswal v. State of U.P. and Another

Case brief

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