Dismissed

Shivam Srivastava v. State of U.P. and Another

Allahabad HC23 Mar 2022A482/24671/2021

Case brief

AI extract

What is this about?

Court dismissed a Section 482 CrPC application seeking quashing of a charge sheet under sections 323, 354-B IPC and POCSO Act. The court held that the offence required full evidence appreciation, which cannot be done at the Section 482 stage, following relevant Supreme Court precedents.

What did the court decide?

The prayer to quash the charge-sheet and proceeding of Sessions Trial was refused and the application dismissed.

Shivam Srivastava Vs State of U.P. and Another — Writ and Judicial Review | Allahabad HC (2022)

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Court No. - 88 Case :- APPLICATION U/S 482 No. - 24671 of 2021 Applicant :- Shivam Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhilesh Singh,Ram Pravesh Yadav Counsel for Opposite Party :- G.A.,Awadhesh Tiwari,Manoj Yadav

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Hon'ble Mohd. Aslam,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the opposite party no.2.

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The instant application under Section 482 Cr.P.C. is filed with the prayer to quash the charge-sheet dated 10.12.2019 in S.T. No.109 of 2019 (arising out of Case Crime No.405 of 2019) under Sections 323, 354-B IPC and 7/8 POCSO Act and proceeding of Sessions Trial No.109 of 2019 (arising out of the abovenoted crime number) Police Station-Hata, District-Kushi Nagar.

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The prosecution case, in brief, is that F.I.R. was lodged against the applicant and one unknown person by moving an application under Section 156 (3) Cr.P.C. with the allegation that on 12.08.2019 at about 9:30 p.m. the victim was going to ease herself in the field and applicant and his one associate caught hold of the prosecutrix and took her away, pressed her breasts, torn her clothes and tried to commit rape upon her. The victim was released from the clutches of the accused when the informant reached there. It is further alleged in the F.I.R. that applicant cut the finger of the victim. The blood was oozing out of her mouth and nose. Thereafter, police reached there and had taken the accused-applicant to the police station.

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It is submitted by the learned counsel for the applicant that F.I.R. against the applicant was false, frivolous and baseless. It is further submitted that applicant has been falsely implicated with ulterior motive and prosecutrix was examined for determination of her age and her age was found 17 years. It is also submitted that in the medical examination at C.H.C. Hatha, Kushi Nagar, multiple abrasion was found only on left hand middle finger on tip of finger and no injury was found on her body. It is further submitted that in the statement of prosecutrix under Section 161 Cr.P.C., no allegation of rape was made. In her statement, only allegation with regard to pressing her breasts, tearing her clothes and slapping her was made. It is further submitted that there is a property dispute between the parties and the mother of the applicant namely Smt. Nirmala Srivastava moved written complaint to the District Magistrate alleging therein that opposite party is creating unnecessary hindrance in the construction work of the applicant and they

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also abused the family members of the applicant and committed scuffle (maar-peet) with them. It is further submitted that applicant is a bright student of D.El.Ed. Second Semester and he was engaged in the examination from 14.08.2019 to 17.08.2019, therefore, no occasion to commit rape is made out.

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Learned counsel for the opposite party no.2 opposed the application and stated that the applicant preferred a Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No.368 of 2022 (Shivam Srivastava v. State of U.P. & 3 Ors.) before a coordinate Bench of this Court which was dismissed with cost vide order dated 11.03.2022 observing therein that 'it is the duty of the litigant to approach the court with clean hands and disclose all the facts relevant to the present matter.' The litigant in that anticipatory bail application had not disclosed the fact of filing of Application U/S 482 Cr.P.C. No.24671 of 2021 on 25.11.2021. The anticipatory bail application was filed on 13.01.2022 after about one month and 18 days of the filing of the application U/S 482 Cr.P.C. There was no disclosure of filing of the application U/S 482 Cr.P.C.

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Learned A.G.A. also opposed the application and stated that adjudication of the present case requires deeper scrutiny, evaluation and appreciation of evidence on record.

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I have gone through the record.

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The offence alleged in the FIR requires evaluation and appreciation of evidence which cannot be done at the stage of 482 Cr.P.C.

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At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.L.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

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Keeping in view of the law laid down in M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors, 2020 SCC Online SC 850 , I do not find any cogent reason to interfere. The aforesaid prayer made by learned counsel for the applicant is, hereby, refused.

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The application U/S 482 Cr.P.C. is dismissed , accordingly.

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Order Date :- 23.3.2022 Jyotsana

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Digitally signed by JYOTSANA SINGH Date: 2022.03.29 14:45:12 IST Reason: Location: High Court of Judicature at Allahabad

Shivam Srivastava v. State of U.P. and Another

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Shivam Srivastava v. State of U.P. and Another

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