Ishaq Khan Vs State of U.P. Thru. Addil. Chief Secy. Home Deptt. Lko. and Another

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Court No. - 11 Case :- APPLICATION U/S 482 No. - 4106 of 2024 Applicant :- Ishaq Khan Opposite Party :- State Of U.P. Thru. Addil. Chief Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Ankit Tripathi,Yash Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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Second counter affidavit filed today in Court by the learned AGA be kept on record.

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Heard learned counsel for the applicant and learned AGA appearing on behalf of the State.

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At the very outset, learned counsel for the applicant states that he does not intend to file any reply to the second counter affidavit filed today. Accordingly, the Court proceeds to hear and decide the matter finally.

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The facts of the case have already been indicated in detail in the order dated 30.07.2024 which for the sake of convenience is reproduced below:-

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1. Heard.

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2. At the very outset, Shri Ankit Tripathi, learned counsel for the petitioner submits that he does not intend to file rejoinder affidavit to the counter affidavit filed on behalf of respondent No.1.

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3. The statement is recorded.

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4. The instant application under Section 482 Cr.P.C. has been filed praying for quashing the proceedings of the Criminal Case No.51358 of 2023 in Re: Apsana Vs. Ishaq, arising out of Case Crime No.0203 of 2023, under Section 376 of I.P.C. at Police Station Sadar, District Sitapur, pending before the learned court of Additional Civil Judge (Junior Division) / Judicial Magistrate, Sitapur. Further challenge is raised to the summoning order dated 21.12.2023 passed by the court concerned.

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5. In brief, from the arguments as raised by the learned counsels for the parties, it emerges that the incidents are said to have occurred on 13.03.2022 & 27.03.2022 involving the respondent No.2 who is complainant / victim wherein the petitioner is said to have committed offences under Sections 376/504/506 of I.P.C.

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6. After running from pillar to post when no F.I.R. was lodged by the authorities, the victim was compelled to file an application under

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Section 156(3) of Cr.P.C. before the concerned C.J.M. on 06.04.2022.

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7. The statement of the victim has been recorded under Section 164 of the Criminal Procedure Code (Cr.P.C.) on 26.07.2022, a copy of which is annexure 4 to the petition.

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8. A final report has been submitted by the authorities on 15.08.2022, a copy of which is annexure 5 to the petition, which indicates that after examination of the statement of the victim and the other witnesses, no such offence is said to have been committed by the petitioner.

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9. The victim was constrained to file a protest application on 18.01.2023, a copy of which is annexure No.6 to the petition. In the said protest application, the victim has stated that (a) the Investigating Officer has connived with the petitioner in having taken false and fabricated affidavits to submit a final report and (b) her statement given under Section 164 Cr.P.C. be considered in a protest application.

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10. Based on the same, the summoning order dated 21.12.2023 has been issued by the learned court whereby the petitioner has been summoned for an offence under Section 376 of I.P.C.

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11. Raising a challenge to the same, the instant petition has been filed.

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12. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vineet Kumar And Others Vs. State of U.P. And Another 2017 (13) SCC 369, more particularly the observations made in paragraph 41 of said judgment, to argue that inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice and for the High Court to step in case there is any abuse of the process of Court.

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13. The contention is that there is a long standing dispute with regard to payment of the petitioner with the husband of the victim which has thus resulted in the said complaint being lodged by the victim against the petitioner.

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14. The Court does not dispute the law laid down by the Hon'ble Supreme Court in the case of Vineet Kumar (supra). However, before proceeding further with the matter, considering that the final report has been submitted by the authorities on 15.08.2022 which also indicates false statements having been given by the victim, the incidents dated 13.03.2022 & 27.03.2022, as have been alleged by the victim, which are said to have been committed by the petitioner inside the house of the victim and the final report indicating about the statement of the alleged witnesses vis-a-vis the statement of the victim

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as recorded under Section 164 of the Cr.P.C., prima facie indicates that the authorities have not acted in accordance with law and perhaps have been swayed by the influence as has been exerted by the petitioner, as such, this Court requires the learned A.G.A. to file an affidavit indicating as to what material has been considered by the Investigating Officer while submitting the final report dated 15.08.2022.

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15. Let an affidavit be filed within two weeks.

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16. List thereafter as fresh.

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In the counter affidavit filed today, learned AGA has filed the statement of the victim as recorded under Section 164 Cr.P.C, a copy of which is annexure CA 3 to the counter affidavit. The date of said statement is 26.07.2022. The final report has been submitted on 15.08.2022 meaning thereby that the said report has been submitted subsequent to the statement of the victim as recorded under Section 164 Cr.P.C.

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From a perusal of the statement of the victim as recorded under Section 164 Cr.P.C, prima facie an offence under Section 376 I.P.C is clearly made out. The Investigating Officer has submitted the final report without considering the statement as recorded under Section 164 Cr.PC of the victim as no such narration finds place in the final report.

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No reasons also emerge from a perusal of the counter affidavit as to why the statement as recorded under Section 164 Cr.P.C was not considered by the Investigating Officer while submitting the final report. Here it may also be pertinent to mention that in the final report it has been indicated that the statements have been considered but once a statement under Section 164 Cr.P.C had been recorded which was recorded before the learned Magistrate consequently, it was in the fitness of thing that it was thus statement which should have considered by the investigating officer while submitting the final report and in case he was of the view that the statement did not inspire confidence, the reasons thereof should have been indicated while submitting the said final report.

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Considering the aforesaid it cannot be said that the final report submitted by the Investigating Officer would be in accordance with law more particularly keeping in view the statement of the victim as recorded under Section 200 of the Cr.P.C as well as the statement recorded under Section 164 Cr.P.C prima facie makes out the offence under Section 376 I.PC.

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At this stage, learned counsel for the applicant states that there are certain consistencies in the statement recorded under Section 161 viz-

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a-viz Section 164 Cr.P.C.

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Even if there are minor inconsistencies in the said statements, it would be the statement recorded under Section 164 Cr.P.C which would prevail.

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Learned counsel for the applicant has placed reliance on the judgment of the Apex Court in the case of Pepsi Food Ltd and Anr Vs. Special Judicial Magistrate and Ors reported in (1998) 5 SCC 749 to contend that summoning of an accused in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course and that the learned Magistrate should apply his mind prior to issuing a summoning order.

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There cannot be any dispute pertaining to the aforesaid proposition of law as enunciated by the Apex Court. However, a perusal of the summoning order viz-a-viz the statement of the victim as recorded under Section 200 of the Cr.P.C and Section 164 of the Cr.P.C prima facie makes out that an offence has been committed against a lady under Section 376 of I.P.C and these aspects of the matter have been considered by the learned Magistrate while issuing the impugned summoning order.

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The Apex Court in the case of Central Bureau of Investigation Vs. Aryan Singh reported in 2023 SCC Online SC 379 has held that this Court while exercising jurisdiction under Section 482 of the Cr.P.C is not expected to hold a mini trial.

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Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the application is rejected.

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However, Superintendent of Police, Sitapur would hold a fact finding inquiry pertaining to the final report which has been submitted by the Investigating Officer in Case Crime No. 203 of 2022 Police Station Saidpur District Sitapur keeping in view the observations made above which fact finding inquiry would be conducted within a period of three weeks from the date of receipt of a certified copy of this order.

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In case, anything adverse is found against the Investigating Officer in the fact finding inquiry report, the competent authority shall proceed to hold a full fledged departmental inquiry against the said Investigating Officer which inquiry shall be conducted in accordance with law and a report submitted expeditiously.

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In case, the Investigating Officer is no longer working in the jurisdiction of Superintendent of Police, Sitapur then the Superintendent of Police, Sitapur would send the copy of this order to the competent authority within whose jurisdiction the then Investigating Officer is now working and these directions pertaining to

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the fact finding inquiry and departmental inquiry shall be followed by the said Superintendent of Police.

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Sri Rajesh Singh, learned AGA would send a certified copy of this order to the Superintendent of Police, Sitapur within a week from today.

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Order Date :- 31.8.2024/Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Ishaq Khan v. State of U.P. Thru. Addil. Chief Secy. Home Deptt. Lko. and Another

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Ishaq Khan v. State of U.P. Thru. Addil. Chief Secy. Home Deptt. Lko. and Another

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