Dismissed

Ram Ganesh Kushwaha and 3 Others v. State of U.P. and Another

Allahabad HC7 Feb 2023A482/1503/2023

Case brief

AI extract

What is this about?

In this application under section 482 Cr.P.C., the Allahabad High Court dismissed the challenge by applicants seeking to quash a summoning order and增加的 charges. The Court upheld the Magistrate's order taking cognizance of serious sexual offences including rape, ruling that the Investigating Officer's report is not conclusive and the Magistrate has the authority to take cognizance based on the full

What did the court decide?

The 482 application was dismissed; no coercive action shall be taken against the applicants until 10.3.2023.

Ram Ganesh Kushwaha and 3 Others Vs State of U.P. and… — Bail and Remand | Allahabad HC (2023)

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Court No. - 67

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Case :- APPLICATION U/S 482 No. - 1503 of 2023

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Applicant :- Ram Ganesh Kushwaha And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Bahadur,Ajay Kumar Kushwaha,Prem Narayan Singh,Sr. Advocate Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard Shri Anil Kumar Srivastava, learned Senior Advocate assisted by Shri Ram Bahadur, learned counsel for the applicants and learned A.G.A. Perused the record.

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By means of the present application u/s 482 Cr.P.C. the applicants are proposing to exploit the plenary powers of this Court while assailing the legality and validity of charge sheet dated 27.3.2022 and summoning order dated 05.11.2022 as well as entire proceeding in Case No.1070 of 2022 (State vs. Ramganesh Kushwaha and others), u/s 376, 354 ख, 452, 323, 504, 506, 427 I.P.C., Police Station-Soraon, District Allahabad, pending in the court of learned Additional Chief Judicial Magistrate, Court No.17, Allahabad.

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Pursuant to my earlier order, Shri Chirag Jain, A.C.P., Soraon, Prayagraj and Shri Manoj Kumar Rai, S.I., P.S. Soraon, Prayagraj are present in the Court.

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Learned counsel for the applicants is assailing the order of summoning whereby the applicants Ram Ganesh Kushwaha, Rajendra Prasad, Chandan and Pankaj have been summoned in exercise of power u/s 190(1)(b) of Criminal Procedure Code to face the prosecution u/s 376, 354 ख, 452, 323, 504, 506, 427 I.P.C., ignoring the charge sheet which was filed by the I.O. of the case

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only u/s 504, 506 I.P.C.

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Before discussing on the aforesaid legal aspect advanced by learned counsel for the applicants, it is imperative to give a bird's eye view to the entire facts of the case. The prosecutrix 'Ms. N' has lodged the present F.I.R. through 156(3) application, referring the date of incident 30.10.2021 and as per the order of learned Magistrate the F.I.R. came into existence on 5.1.2022 u/s 376, 354 ख, 452, 323, 504, 506, 427 I.P.C. against the applicants Ram Ganesh Kushwaha, Rajendra Prasad, Chandan and Pankaj. As per the version of F.I.R., the informant is the daughter of Chhedi Lal Maurya, r/o Sarai Brihsingh @ Sarai Bahar, Soraon, Prayagraj and her opponents are Ram Ganesh (Pradhan Pati), Rajendra, Chandan and Pankaj. She further stated in the F.I.R. that per force the accused-applicants started carving out a drainage over her landed property and when resisted by her then Pradhan Pati along with his other named accomplices/accused persons started hurling filthy abuses and assaulting by lathi-danda and beating her, causing certain internal injury to her. Thereafter, all of them assembled and make the victim in a semi-nude condition and have outraged her modesty. In addition to this, they have also touched her private organs in an indecent way. On this, the informant raised alarm and she succeeded in assembling the other co-villagers, who saved her life and dignity. This incident is of 30.10.2021 at 03.37 in the evening, witnessed by number of the persons. After coming to her home, the accused-applicants again barged into her house having lathi-danda in their hands and started hurling filthy abuses. They have also damaged the property inside the house of informant and extended threats to kill her entire family, in case the incident is reported to police station.

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After lodging of the F.I.R., the police started investigation into the matter and the girl was sent for medical examination. In her medical examination the victim lady has broadly reiterated the incident as of F.I.R. Before the doctor she has reiterated the incident in so many words. Not only this the doctor concerned who prepared her medico-legal report, in its Para-15F of the said report have clearly mentioned that there is insertion of finger in her private organ by these miscreants, though her hymen was found intact.

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It is urged by learned counsel for the applicants that there is no injury over the person of lady commensurating to the allegations made in the F.I.R.

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The statements of the victim u/s 161 and 164 Cr.P.C. were recorded in which she has candidly and in no uncertain terms have reiterated the allegations upon the accused persons for fingering in her private organ and touching her body in an indecent way.

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Mr. Manoj Kumar Rai, S.I., investigating officer of the case is present in the Court, has tried to justify the submission of report u/s 173(2) Cr.P.C. to the extent that he has recorded the number of statements of the co-villagers, who in their statements have categorically denied the incident to be happened. Not only this, the I.O. has also relied upon some videographs of the incident (author of that video was unknown) to justify the filing of report u/s 173(2) Cr.P.C. and after culminating the entire investigation, he has submitted charge sheet only u/s 504, 506 I.P.C. against the accused persons. Thus the concerned I.O. shamelessly stick to her stand that none of the co-villagers have supported the prosecution story. He further submits that relying upon the 161 statements of the co-villagers and the so-called videography, allegedly authored

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by some unknown person. It is indeed astonishing that I.O. of the case paying too much heed and excessive importance to the 161 statements of co-villagers and so-called, unauthenticated videography of the incident, ignoring the 161 and 164 statements of the victim and also ignoring her medico-legal report, in which she has reiterated the sexual assault upon her by the applicants.

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When said charge sheet was submitted before the Magistrate, who after perusing the material available on record including the statements of the victim u/s 161 and 164 Cr.P.C., her medical report and assessing the entire incident in its entirety, have simply ignored the opinion of the Investigating Officer in the shape of report u/s 173(2) Cr.P.C. and has taken cognizance of the matter u/s 376, 354 ख, 452, 323, 504, 506, 427 I.P.C.

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Learned Senior Counsel submits, that there is no evidence on record so as to justify the taking of cognizance in the aforesaid sections of I.P.C. against the applicants, by learned Magistrate ignoring the charge sheet which was filed by the I.O. of the case only u/s 504, 506 I.P.C. Learned senior counsel submitted that the Magistrate cannot replace its own finding ignoring the findings of the charge sheet and in this regard he has relied upon a judgment of Hon'ble Apex Court in State of Gujarat vs. Girish Radhakrishnan Varde, 2014 (4) SCC 659 and has stressed upon its para-17, which is being reproduced herein under :

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" 17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or substraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual observation by recording that the Trial Court at the appropriate stage will have the power to determine as to which provision is to be applied before the matter is finally sent for trial. ................... In fact, the correct course of action should have been laid down by the High Court as also the learned Additional District &

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Sessions Judge by permitting the appellant – State of Gujarat to raise the question of addition of charges at the time of framing of charge under Section 228 of the Cr. P.C. and should not have passed a blanket order setting aside the order of the Magistrate without laying down the correct course of action to be adopted by the affected parties with the result that three orders came to be passed by the Chief Judicial Magistrate, Additional District & Sessions Judge and the learned Single Judge of the High Court, yet it could not resolve the controversy by highlighting the appropriate course of action to be adopted by the prosecution-State of Gujarat as also the magistrate which permitted addition of sections after submission of chargesheet missing out that the matter did not arise out of a complaint case lodged before the magistrate but a case which arose out of a police report/FIR in a Police Station."

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Per contra Shri Ghanshyam Kumar, learned A.G.A. has refuted the contentions raised by learned counsel for the applicants.

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It is contended by learned counsel that the report u/s 173(2) Cr.P.C. comes within the definition of only an opinion of the Investigating Officer, which cannot be said to be a conclusive proof of investigation and that too at this very threshold stage.

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Shri Manoj Kumar Rai, I.O. of the case has been unable to justify the latches and loopholes in submission of charge sheet u/s 504, 506 I.P.C. and ignoring the serious allegation made by the informant of the case. I.O. of any case is one of the person who is authorised to hold in-depth probe into the matter, collect the material and form his own opinion, relying upon the material collected during investigation and submit the same before the Magistrate. Magistrate is well within in his powers to agree or disagree with the opinion/point of view of the I.O., and while taking the cognizance of the offence, the Magistrate is required to go through entire material on record/case diary and thereafter take the cognizance of the offence in the appropriate section of the I.P.C. by assigning good reasons, if he differs from the alleged opinion of I.O. u/s 173(2) Cr.P.C. Magistrate is not supposed to dance on the tune of the I.O. In this regard the Court has the

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occasion to lay its hands on a recent judgment of Hon'ble Apex Court in the case of XYZ vs State of M.P. and others in Criminal appeal No.1184 of 2022 decided on 5.8.2022, whereby the Hon'ble Apex Court has laid down the guidelines with regard to such heinous offences attracting the sexual offences upon the women. It would be apt to quote the following paragraph of aforesaid judgment, herein below :

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"30. Finally, we wish to once again reiterate the importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner. It is important for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault. At this juncture, especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility. As the Delhi High Court held in Virender v State of NCT of Delhi , 2009 SCC OnLine Del 3083, courts have to remain alive to both treating the victim sensitively while also discharging the onerous task of ensuring that the complete truth is brought on record so as to facilitate adjudication and answering the basic question regarding the complicity of the accused in the commission of the offence. In that case, the High Court held that:

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"22. It is to be noted that the embarrassment, and reservations of those concerned with the proceedings including the prosecutrix, witnesses, counsel may result in a camouflage of the trauma of the victim's experience. The judge has to be conscious of these factors and rise above any such reservations to ensure that they do not cloud the real facts and the actions which are attributable to the accused persons. The trial courts must be alive to the onerous responsibility which rests on their shoulders and be sensitive in cases involving sexual abuse."

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31. While the Delhi High Court made these observations while dealing with a case of rape, courts must remain alive to their duty to treat victims sensitively in cases alleging all forms of sexual harassment and sexual assault. The Courts must try to ensure that the process of attempting to bring alleged perpetrators to justice is not onerous for the victims. Aggrieved persons should not have to run from pillar to post for the mere registration of a complaint and initiation of investigation especially when a cognizable offence is prima facie made out in their complaint."

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Thus after hearing the rival submissions and discussions made above along with the nature and gravity of accusation made by the victim in the F.I.R., statements u/s 161 & 164 Cr.P.C. and the statement of the victim before the doctor, I have no hesitation to

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uphold the order dated 05.11.2022 is just and perfect, which need not to be disturbed. Let the trial may proceed and the applicants are required to surrender before the majesty of the Court, who has taken cognizance u/s 376, 354 ख, 452, 323, 504, 506, 427 I.P.C.

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Lastly it has been submitted by learned counsel for the applicants that the applicants are ready to appear before the court concerned and for this purpose some protection may be given to them.

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In case the applicants appear before the court concerned on or before 10.3.2023 and apply for bail, the same shall be considered and decided strictly in accordance with law.

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Up to 10.3.2023, no coercive action shall be taken against the applicants in aforesaid case.

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Personal presence of Shri Chirag Jain, A.C.P., Soraon, Prayagraj and Shri Manoj Kumar Rai, S.I., P.S. Soraon, Prayagraj is exempted.

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The present 482 application stands dismissed accordingly.

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Order Date :- 7.2.2023 M. Kumar

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Digitally signed by :- MANISH KUMAR High Court of Judicature at Allahabad

Ram Ganesh Kushwaha and 3 Others v. State of U.P. and Another

Case brief

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Ram Ganesh Kushwaha and 3 Others v. State of U.P. and Another

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