HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 31326 of 2019 Applicant :- [ENTITY] Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY]-I,J.
Heard learned counsel for the applicant Shri [ENTITY] and in opposition, Shri [ENTITY], learned A.G.A. for the State of U.P. and perused the record.
This application under [SECTION] [ACT] has been moved on behalf of the applicant with a prayer to quash the charge sheet dated 31.08.2018 as well as the entire proceedings in [CASE NUMBER] (State v. [ENTITY] and others), arising out of [CASE NUMBER], under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT], Police Station - Khetasarai, District - Jaunpur, pending in the court of [ENTITY].
Learned counsel for the applicant has made submission that the accused-applicant has been falsely implicated by opposite party no. 2, who is mother of the victim. It is further submitted that there was dispute of abadi land between the two sides. Due to that, both the sides were involved in breach of peace and proceedings under [SECTION] of [ACT] were also initiated against them. With respect to the aforesaid fact, he has drawn attention of this Court towards page no. 17 of the paper book. Attention has also been drawn to the police report annexed at page no. 20 of the paper book, wherein it is mentioned by the police station concerned that the contents in the application under [SECTION] of [ACT] were exaggerated and he has also drawn attention of this Court towards the statement of witnesses - [ENTITY] and [ENTITY], which are annexed at page nos. 49 and 50 of the paper book, wherein it is stated by both the witnesses that the accused-applicant had caught hold of the victim and had beaten her and no such statement was given that any attempt to commit rape was made by the accused. The charge-sheet has been submitted without proper investigation in this case, which is nothing but malicious prosecution and needs to be quashed.
On the other hand, learned A.G.A. vehemently opposed the quashing and argued that the statement of the victim supports the prosecution version, wherein she has clearly stated that on 07.05.2018 at about 12 noon, when she was going to learn stitching, the accused-applicant had caught hold of her hand and attempt to commit rape was made by the accused-applicant. She was also given threat to be killed.
I have gone through the F.I.R., wherein it is mentioned by opposite party no. 2 that her daughter/victim was studying in Class XI and on 07.05.2018 at about 12.30 P.M., when she was going to learn stitching to the house of one [ENTITY], as soon as she reached the house of [ENTITY], the accused-applicant caught hold of her daughter and she was dragged to a place which was covered and rape was committed on her. The accused-applicant had torn her clothes and pressed her breasts. When she resisted and cried out loudly, people from the vicinity came to save her. The charge-sheet has been submitted, after having recorded the statement of six witnesses.
Since the victim herself has supported the prosecution version, hence her testimony cannot be disbelieved in proceedings under [SECTION] of [ACT] as the same requires full trial and it cannot be denied, at this stage, that cognizable offence is made out against the accused-applicants on the basis of evidence gathered by the Investigating Officer. The veracity of the submissions cannot be tested in proceedings under [SECTION] of [ACT] At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of [PRECEDENT], [PRECEDENT], [PRECEDENT] lastly [PRECEDENT]. The disputed defense of the accused cannot be considered at this stage.
In view of above, the prayer for quashing the charge-sheet and entire proceedings in the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge, if so advised and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law.
The applicant may appear before Committal Court within 30 days to get their case committed to the Court of Sessions so that the accused may move discharge application before it.
For a period of 30 days from the date of order, no coercive action shall be taken against the applicant, but if he does not appear before the Committal Court, the said court shall take coercive steps to procure his attendance.
The accused-applicant has already been granted bail, as has been stated by learned counsel for the applicant during argument.
With aforesaid observations/directions, the instant application stands finally disposed of.
Order Date :- 13.8.2019 [ENTITY]