Arif Khan Vs State of U.P. and Another

Court No. - 66

Case :- APPLICATION U/S 482 No. - 34502 of 2022

Applicant :- Arif Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shesh Mani Misra,Tejasvi Misra Counsel for Opposite Party :- G.A.

¶4

Hon'ble Rajeev Misra,J.

¶5

Heard Mr. Tejasvi Mishra, the learned counsel for applicant and the learned A.G.A. for State.

¶6

Perused the record.

¶7

This application under Section 482 Cr.P.C. has been filed challenging the order dated 17.08.2022 passed by Additional Sessions Judge, F.T.C.-II, Ghaziabad in Sessions Trial No. 155 of 2022 (State Vs. Arif Khan) under Sections 376, 406, 420, 504, 506 IPC, Police Station-Kavi Nagar, District-Ghaziabad, whereby discharge application filed by applicant has been rejected, the order dated 23.08.2022 whereby charges have been framed against applicant as well as the entire proceedings of aforementioned sessions trial now pending in the court of Additional Sessions Judge, F.T.C.-II, Ghaziabad.

¶8

At the very outset, the learned A.G.A. has raised a preliminary objection with regard to the maintainability of present application. He submits that once the discharge application filed by applicant has been rejected and also charges have been framed against applicant then no challenge can be laid to the entire proceedings of above-mentioned sessions trial. As such, prayer no. 3 prayed for by means of present application is misconceived. It is then contended by the learned A.G.A. that framing of charge is a final order and therefore same is revisable in terms of Section 401 Cr.P.C. Once the charges have been framed, the question of discharge becomes academic. To lend legal support to his submission, he has relied upon the judgment of Supreme Court in Ratilal Bhanji Mithani Vs. State of Maharashtra and Others 1979 (2) SCC 179. As such, remedy of applicant is to file a criminal revision challenging the order dated 2308.2022 whereby charges have been framed against applicant. In view of above, the present application insofar as to relates to prayer no. 2 is liable to be rejected on the ground of alternative remedy.

¶9

When confronted with above, the learned counsel for applicant has referred to the judgment of Apex Court in Prabhu Chawla Vs. State of Rajasthan 2016 16 SCC 30 and on basis thereof, he submits that alternative remedy is not an absolute bar. However, the learned counsel for applicant could not improve upon the objection raised by the learned A.G.A. with regard to the prayer no. 3 prayed for by means of present application.

¶10

Having heard, the learned counsel for applicant, the learned A.G.A. for State upon perusal of law and in view of the law laid down by Apex Court in Prabhu Chawla (Supra) , the plea of alternative remedy raised by the learned A.G.A. in respect of prayer no. 2 is rejected. Prayer no. 3 prayed for by means of present application is rejected. The application is accordingly entertained for prayer no. 1 and 2 only.

¶11

Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in aforementioned case crime number. Allegations made in the FIR with regard to the commission of sexual assault by applicant are false and concocted. As such, applicant is being falsely prosecuted in aforementioned sessions trial. It is then contended that prosecutrix is major. She is a consenting party. Referring to the material on record, the learned counsel for applicant submits that prosecutrix and the applicant were in love with each other for a long time and therefore on account of intimacy between the parties, physical relations were established repeatedly by mutual concent. On the above premise, it is vehemently urged that no offence as complained of can be said to have been committed by applicant. As such, court below erred in law in rejecting the discharge application filed by applicant and further by framing charges against applicant. He thus submits that the impugned proceedings are therefore illegal and malicious. Consequently, same are liable to be quashed by this Court.

¶12

Per contra, the learned A.G.A. has opposed the present application. He submits that from the perusal of the FIR, it is explicitly clear that false promise of marriage was made by applicant to the prosecutrix. Applicant is alleged to have dislodged the modesty of the prosecutrix on the said false promise. Applicant is alleged to have resided from the promise i.e. marrying with the prosecutrix. In view of above, the varied submissions urged by the learned counsel for applicant are meaningless. Resultantly, the impugned proceedings can very well be sustained against applicant. In support of above, the learned A.G.A. has relied upon the following judgments of Supreme Court:-

¶13

1. Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) 9 SCC 608.

¶14

2. Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108.

¶15

3. Sonu Vs. State of U.P. 2021 SCC Online SC 181.

¶16

4. Mandar Deepak Pawar Vs. The State of Maharashtra and Another 2022 LiveLaw (SC) 649.

¶17

The learned A.G.A. further submits that court below while deciding the discharge application filed by applicant has recorded a categorical finding that on the basis of the material on record, trial can proceed against applicant. In short, the submission is that court below has found that prima-facie case is made out against applicant and sufficient material exists to proceed against applicant. At the time of disposal of discharge application, court is not required to hold a mini trial and record a finding that on the basis of material on record, conviction of accused is possible. As such, no illegality has been committed by court below in rejecting the discharge application. Reference is also made to the judgment of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74 , wherein, it has been held that an accused can be convicted for an offence of rape and sexual assault even in the absence of medical evidence provided the statement of the prosecutrix is clear categorical and unambiguous i.e. the same is of impeccable character.

¶18

Referring to the statements of prosecutrix as recorded under Sections 161/164 Cr.P.C., the learned A.G.A. submits that it cannot be said at this stage that the statements of the prosecutrix referred to above are inconsistent and contradictory. The view taken by court below is inconformity with the law laid down by Apex Court in respect of discharge of an accused under Section 227 or 239 Cr.P.C. in the Three Judges judgment of Tarun Jit Tejpal Vs. State of Goa (2020) 17 SCC 556 .

¶19

On the above premise, the learned A.G.A. contends that no illegality can be said to have been committed by court below in rejecting the discharge application filed by applicant. With regard to the framing of charge order, the learned A.G.A. submits that no illegality has been committed by court below is framing charges against applicant either inasmuch as, as per the material available on record, prima-facie offence complained of is clearly made out against applicant. On the above premise, the learned A.G.A.

¶20

submits that applicant does not deserve any indulgence by this Court. Consequently, the present application is liable to be dismissed.

¶21

When confronted with above, the learned counsel for applicant could not overcome the same.

¶22

As a result, present application fails and is liable to be dismissed.

¶23

It is accordingly dismissed .

¶24

Order Date :- 19.1.2023

¶25

HSM