Dismissed

Ankit Kumar @ Deepak v. State of U.P. and Another

Allahabad HC23 Aug 2023A482/20748/2023

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C. seeking quashing of proceedings in a rape case, the High Court held that since prima facie complicity of the applicant could not be ruled out, the application lacked any viable ground for quashing.

What did the court decide?

Application for quashing of proceedings refused and dismissed with no order as to costs.

Ankit Kumar @ Deepak Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:169472

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 20748 of 2023

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Applicant :- Ankit Kumar @ Deepak Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satyendra Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the further proceeding of the Case No. 375/2023 (State Vs. Ankit @ Deepak) under section 376 1.P.C. arising out of Case Crime No. 0460/2022, Police Station Phase-II Gautam Budh Nagar, pending before the Court of A.D.J. FTC IInd Gautam Budh Nagar.

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Opposite party no. 2 has moved an application under Section 156(3) Cr.P.C., which was allowed by the trial court and on the basis whereof an F.I.R., being Case Crime No. 0460 of 2022 dated 22.10.2022, has been lodged inculpating three accused, namely, Ankit Kumar (present applicant), Bharti and her husband Yadram alleging therein that on 27.12.2021 while prosecutrix was alone in her house and suffering from fever, her neighbour, namely, Bharti in collusion with his nephew, namely, Ankit (present applicant) has given the medicine laced with intoxicated substance. After consuming the medicine she became unconscious and taking benefit of her incapacitated condition, present applicant has committed forceful sexual assault on her. While she gained conscious, she found herself in very chaotic condition, wherein she was naked below her waist and the clothes were soaked in blood and she was suffering with pain; that after hearing her scream Bharti came to her and requested not to call the police and assured that his nephew Ankit will marry her. Thereafter, Ankit has made several times physical relation with the prosecutrix on the pretext of the marriage. Despite assurance given by him before the family

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members he has refused to marry with the prosecutrix. Lastly it is averred that all the three accused with common intention have ruined the life of the prosecutrix.

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Learned counsel for the applicant submits that false and malicious prosecution has been made against the present applicant only for the purposes of blackmailing to him. It is further submitted that after due investigation, the investigating officer has not arraigned the remaining two accused, namely, Bharti and her husband Yadram and also struck off the Sections 328 and 120-B I.P.C.; charge sheet was submitted only against the present applicant that too under Section 376 I.P.C. The incident as narrated by the prosecutrix in her complaint has not been found correct in toto, therefore, Sections 328 and 120-B I.P.C. have not been employed in the charge sheet. It is further submitted that once the story of giving the toxic substance has been denied in the investigation, entire genesis of crime as mentioned in the F.I.R. fails, therefore, on this ground alone the F.I.R. and the charge sheet are liable to be quashed. It is further submitted that the F.I.R. lodged on the basis of application under Section 156(3) Cr.P.C. filed by opposite party no. 2 is premeditated, which is evident from the statement recorded under Section 161 Cr.P.C.

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Per contra, learned A.G.A. has vehemently opposed the submissions as advanced by the learned counsel for the applicant and contended that considering the facts as narrated in the F.I.R. and the charge sheet coupled with the material on record, prima facie, the complicity of the present applicant in the cognizable offence cannot be ruled out. The innocence of the present applicant, as submitted by the learned counsel for the applicant, cannot be inferred at this stage. Learned trial court is competent enough to adjudicate the innocence of the accused after conducting the trial. It is next submitted that at this juncture no ground is made out as to warrant indulgence of this Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. Therefore, instant application is liable to be rejected, being misconceived and devoid of merits.

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Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that the prosecutrix/ opposite party no. 2 has unequivocally made

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allegation of rape against the present applicant, which has rightly been considered by the investigating officer in the charge sheet submitted by him and, accordingly, present applicant has been arraigned in the charge sheet under Section 376 I.P.C. Not employing the sections 328 and 120-B I.P.C. in the charge sheet will not affect the genesis of the case as mentioned in the F.I.R., wherein unequivocal allegation has been made against the present applicant for committing rape. On the face of record, prima facie, complicity of the present applicant in commission of the crime, as mentioned in the charge sheet, cannot be ruled out. So far as the statement of witnesses under Section 161 Cr.P.C. is concerned, it is matter of trial which can more appropriately be considered by the trial court while adjudicating the matter on merits. At this juncture, this Court, in exercise of inherent jurisdiction under Section 482 Cr.P.C., is not expected to conduct a mini trial to examine the innocence of present applicant.

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Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicant in the incident in question.

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In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

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It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure

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is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/chargesheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

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In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-

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"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

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In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

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In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:

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" 23. It being a settled principle of law that to exercise powers

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under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

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The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335) . The relevant para is mentioned hereunder:-

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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 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

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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 bur engrafted in any of the provisions of the Code on 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 10 private and personal grudge."

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It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

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Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

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Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing

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the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

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Having considered the rival submissions advance by learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

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Resultantly, instant application is dismissed with no order as to costs. It is made clear that observation, if any, made in the present matter will not affect the trial of the instant case.

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Order Date :- 23.8.2023 Pkb/

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

Ankit Kumar @ Deepak v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Ankit Kumar @ Deepak v. State of U.P. and Another

Case brief

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