Criminal misc. application challenging summoning order and chargesheet. High Court held it is not a rare case, dismissed application, allowed applicant to approach Magistrate for bail.
Criminal miscellaneous application dismissed; applicant permitted to seek bail expeditiously from the concerned Magistrate.
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C482 No.348 of 2018 Hon’ble V.K. Bist, J.
Mr. Prabhat Bohra, Advocate for the applicant.
Ms. Shivali Joshi, Brief Holder for the State of Uttarakhand. Heard learned counsel for the parties.
This criminal misc. application has been filed by the applicant challenging the chargesheet dated 06.09.2016 filed against the applicant and the summoning order dated 13.12.2016, whereby the learned Chief Judicial Magistrate, Dehradun has taken cognizance of the offences alleged against the applicant i.e. under Section 376, 406 & 506 I.P.C. Further prayer has been made to stay the proceedings of Criminal Case No.4881 of 2016 under Section 376, 406 & 506 I.P.C., pending before the learned Chief Judicial Magistrate, Dehradun.
Earlier F.I.R. was lodged against the applicant at Police-Station Kotwali Cantt, Dehradun under Sction 420, 406, 376, 120-B & 506 I.P.C. by the complainant respondent No.2 Jyoti Rohiwal, alleging therein that, in September 2012, complainant was doing choreography at Hotel Pacific and she met the applicant Gagan Sethi S/o Jagmohan Sethi, R/o 15 Netaji Marg, Tilak Road, Kotwali Dehradun, who cajoled the applicant. Complainant further alleged that accused applicant on 28th October 2012 proposed her for marriage and later accused/applicant arranged a meeting between his mother sister (Sheena) and complainant who took horoscope for matching with a promise that they will announce marriage on the
occasion of lohari in month of January 2013. Complainant further complaint that applicant and his family preponed such announcement of marriage on pretext of one excuse and another. It was further stated in the F.I.R. that applicant took ` 1,50,000/- as a loan from complainant on 06-02-2014, accused made physical relation with complainant in year 2015; but, later he refused to marry with complainant.
The Investigating Officer, after investigation, submitted charge sheet. Same was accepted by the Court. Thereafter, cognizance was taken by the Magistrate and the impugned summoning order has been passed. Against the summoning order, present criminal misc. application has been filed by the applicant.
Learned counsel for the applicant submitted that the F.I.R., lodged against the applicant alleging rape & fraud is false and fictitious as such and the applicant has been made scapegoat by the respondent no.2 with the collusion of Police personnel. He submitted that the F.I.R. is an absolute colorful concocted story with omnibus allegations shorn of even basic details and respondent No.2 is misusing the law to harass the applicant as she was having casual acquaintance with applicant and wanted to marry him but over such proposal applicant was not ready. He submitted that, due to denial of marriage proposal of the complainant, this present criminal proceedings have been initiated. According to the applicant, he does not want to marry complainant; but, complainant was repeatedly mounting pressure on the applicant to marry her; but, when applicant showed his
unwillingness, false F.I.R. has been lodged against the applicant. The respondent No.2 has lodged a false F.I.R. alleging that she is mentally and physically harassed by the applicant on various occasions in the year 2014. He submitted that even if the allegations of respondent no.2 are taken as true, the position from allegations emerges that complainant was quite competent to take independent decision and that the bodily relation was established every time with her consent. It was nowhere alleged that the applicant had forced her to do sex without her consent. Therefore, no offence could be attracted against applicant under Section 376 I.P.C. He submitted that, in fact, applicant was subjected to blackmail and extortion at the hands of the prosecutrix and when he denied her accelerating illegal demand, present case was lodged by her. He argued that primafacie allegations made in the F.I.R. are all false, baseless and fabricated and do not constitute any cognizable offence for initiating criminal proceedings against the applicant. He contended that, except the complainant, no other witness supported the case of the prosecution which itself would falsify the case of the 2nd respondent. He argued that on a bare reading of the allegations made in F.I.R., it is evident that the applicant and the complainant were in a relationship, which was consensual in nature, and the said consent could not have been given in fear or injury or misconception, as long time has elapsed since such relationship began allegedly in year 2014. He argued that, from a close reading of the statement of the prosecutrix, it is easily discernible that only with her consent every alleged sexual intercourse
has been done. He argued that since the Investigating Police Officer was in collusion with the respondent no.2, therefore, instead of conducting fair investigation, the Investigation Officer submitted charge sheet against the applicant under section 376, 406 & 506 of LP.C. on 06-09-2016. He argued that there is no evidence in support of allegation of rape and even the doctor, who has examined the prosecutrix, has denied the presence of any medical evidence pointing out crime of rape. He argued that the learned Chief Judicial Magistrate, Dehradun, without applying its judicial mind and complete perusal of records, took cognizance of the case and without jurisdiction summoned the applicant under Section 376, 406 & 506 of I.P.C. vide order dated 13-12-2016. He contended that the summoning order has been passed in a mechanical way, without application of judicial mind to the facts of the case. He submitted that the summoning order is also passed in a mechanical way and without jurisdiction and is bad in the eyes of law, which is causing prejudice to the legitimate rights of the applicant as well as the mandate of law as provided under the Cr.P.C., as it would reflect non-application of mind as such and, therefore, the same is liable to be quashed.
I have considered the submission advanced by the learned counsel for the parties.
In my view, this is not a fit case where process of law has been misused. The Hon’ble Supreme Court in catena of judgments has held that the High Court should interfere in rarest of the rare cases. This Court does not find that this case
comes under that category. Charge sheet has been filed and the Court has issued summoning order to the applicant. The applicant should appear before the Court concerned and should say whatever he wants to say.
Consequently, the criminal misc. application is dismissed. However, applicant is permitted to appear before the concerned Magistrate. In case applicant appears before the Magistrate concerned and moves bail application, the concerned Magistrate shall decide the bail application of the applicant expeditiously.
(V.K. Bist, J.) 05.03.2018
Arpan
3 issues framed by the court
Whether the criminal miscellaneous application challenging the summoning order should be allowed under Section 482 CrPC.
Whether the present case falls under the rarest of rare cases warranting interference by the High Court.
Whether the prima facie allegations constitute a cognizable offence justifying criminal proceedings.
Gagan Sethi
State of Uttarakhand
Jyoti Rohiwal
V.K. Bist
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
