HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 70 Case :- APPLICATION U/S 482 No. - 32448 of 2012 Applicant :- [ENTITY] :- State Of U.P. And Another Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- Govt.Advocate,[ENTITY] Hon'ble [ENTITY],J.
1. Case called out in the revised list. Sri [ENTITY], learned counsel for the applicant and learned AGA on behalf of the State are present but Sri [ENTITY], learned counsel for the opposite party no.2 is not present. Heard Sri [ENTITY], learned counsel for the applicant and learned AGA on behalf of the State and perused the record.
2. This application under [SECTION] [ACT] has been preferred by the applicant with a prayer to quash the impugned chargesheet No.142/11 dated 08.11.2011 as well as criminal proceedings in [CASE NUMBER] arising out of Case Crime No.[SECTION]8 of 2011, under [SECTION], [SECTION], [SECTION] [ACT], Police Station Babugarh, pending in the court of Additional Civil Judge (SD)/ Additional Chief Judicial Magistrate, Hapur, Panchsheel Nagar (Ghaziabad).
3. It is submitted by the learned counsel for the applicant that as per prosecution case in brief, the impugned FIR was lodged on 01.09.2011 by the opposite party no.2 with regard to alleged incident dated 20.05.2011 through an application dated 13.06.2011 under [SECTION] [ACT] against five accused persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY] and Smt.[ENTITY], making allegation that the accused persons in collusion with each other in a pre-planned manner kidnapped his daughter [ENTITY]. In the said FIR, it is also stated that by the informant that on 06.06.2011 he had gone to Meerut for his personal work, where he saw his daughter [ENTITY] in a car alongwith accused persons. On making query, his daughter [ENTITY] told that the accused persons forcibly brought her and they are committing rape on her. The investigating officer after investigation submitted chargesheet dated 08.11.2011 against the applicant under [SECTION], [SECTION] & [SECTION] [ACT], on which Additional Chief Judicial Magistrate took cognizance on 14.11.2011.
4. Learned counsel for the applicant assailing the aforesaid impugned criminal proceeding against the applicant submitted that after registration of FIR, the victim Smt.[ENTITY] alongwith [ENTITY] (co-accused) and others filed [CASE NUMBER], in which following order was passed on 29.9.2011:-
"Heard learned counsel for the petitioners and the learned A.G.A.
1.This writ petition has been filed by the petitioners for quashing of FIR of case crime No. [SECTION]8 of 2011, under [SECTION], [SECTION], [SECTION] [ACT], P.S. Babugarh, district Ghaziabad.
2.The Petitioners [ENTITY] and Smt. [ENTITY] are present in this Court and they have been identified by their lawyer. Petitioner No. 2 Smt. [ENTITY] claims to have voluntarily married [ENTITY], the petitioner no.2 out of her own sweet will and is living with him without any coercion and compulsion, and denies that she has ever been kidnapped by petitioner no.2.
3.In paragraph 7 of the writ petition, it is mentioned that petitioner No.2 is major and aged about 19 years, and reliable proof regarding her age has been annexed with the petition, as her High School Certificate mentions her date of birth as 10.5.92.
4.The I.O shall provide proper security to the petitioner Smt. [ENTITY] for ensuring compliance of the aforesaid directions.
5.In case the said statements are favorable to the accused- petitioner [ENTITY] the I.O. shall consider the appropriateness of submitting a final report in this case and the CJM concerned may also pass appropriate orders in this regard.
6.In case the petitioner Smt. [ENTITY] is found to be minor, then the CJM/Magistrate concerned shall pass appropriate orders regarding her custody as he deems fit and proper.
7.For the future security of the petitioner no.1, Smt. [ENTITY], the petitioner no.2 is directed to deposit Rs. 1,.50,000/ (One lakh Fifty thousand) in a nationalized bank/ post office in the form of fixed deposit for a period of not less than three years within six weeks in the exclusive name of the petitioner no.1. Smt. [ENTITY].
8. The amount so deposited shall not be withdrawn before its maturity under any circumstances except with the leave of the CJM/ Magistrate concerned.
9.The concerned bank/ post office shall be instructed by the depositor (Petitioner No. 1) to make a specific note in the record as well as on the fixed deposit receipt that the same shall not be encashed before maturity except with the leave of the CJM/ Magistrate concerned.
10.The petitioner No. 1 is directed to furnish proof before the CJM/ Magistrate concerned on or before 15.11.2011 that he has made out the fixed deposit receipt as directed above in the name of the petitioner No. 2.
11.Till the disposal of the aforesaid proceedings before the CJM concerned as provided herein above, the arrest of the petitioners in the aforesaid Case Crime No. [SECTION]8 of 2011, under [SECTION], [SECTION], [SECTION] [ACT], P.S. Babugarh, district Ghaziabad shall remain stayed.
12.In case the petitioner no. 1 fails to fulfil any of the conditions mentioned herein above, the stay of arrest granted by this Court shall stand vacated.
13.With the aforesaid observations, the writ petition is disposed of."
5. Since the applicant was arrested immediately after F.I.R and was in jail, therefore, the investigating officer submitted the chargesheet against the applicant in haste manner without any credible evidence against the applicant. It is submitted by the learned counsel for the applicant that statement under [SECTION] [ACT] of the victim [ENTITY] was recorded on 20.04.2012 much after submission of chargesheet dated 08.11.2011 against the applicant.
Victim in her statement under [SECTION] [ACT] dated 20.04.2012 did not support the prosecution case and clearly stated that she herself left her house on 20.02.2011 and eloped with [ENTITY] (younger brother of the applicant). The victim [ENTITY] in her statement disclosed her age 20 years and also stated that she and [ENTITY] solemnized their marriage on their own sweet will on 31.05.2012 and they are living as husband and wife. Not only this but the victim has also clearly stated in her statement that she is being harassed by her family members. The said statement under [SECTION] [ACT] dated 20.04.2012 of the victim [ENTITY] is reproduced below:-
"eS l'kiFk C;ku djrh gWw fd fn0 20-02-2011 dks vius ?kj ls viuh ethZ ls gjohj ds lkFk ?kj NksM+ dj x;h FkhA ge nksuks us fn0 31-3-12 dks viuh ethZ ls 'kknh efUnj es dj yh gSA mlds ckn ls eS mUgha ds lkFk crkSj iRuh jg jgh gWwA gekjh 'kknh iathd`r Hkh gks pqdh gSA eSa vius ifr ds lkFk gh jguk pkgrh gWw vkSj esjs ?kj okys eq>s ijs'kku dj jgsa gSA
6. On the strength of the aforesaid facts and material on record, it is vehemently urged by the learned counsel for the applicant that the investigating officer has not conducted fair investigation. Since the applicant was illegally arrested without any credible evidence against him, therefore, the investigating officer in order to justify his action, deliberately submitted the chargesheet against the applicant.
Learned counsel for the applicant in support of his submission placed reliance upon the judgment of the Apex Court in the case of [PRECEDENT] wherein the Apex Court has observed that not only fair trial but fair investigation is also a constitutional right of the accused under [SECTION] of the [ACT]. The relevant paragraphs no. 32 and 45 of the said judgements are reproduced below:-
32.The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth". ([PRECEDENT], [PRECEDENT] at p.780 para 11 and [PRECEDENT]).
45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under [SECTION] and [SECTION] of the [ACT]. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation.
7. Last plunk of submission of the learned counsel for the applicant is that the criminal proceeding against the applicant pursuant to impugned chargesheet on the said facts and material on record is abuse of the process of the court, because no offence is made out against the applicant, therefore, the same is liable to be quashed.
8. Per contra, learned AGA submitted that on the date of submission of chargesheet dated 08.11.2018, there was no statement of the victim under [SECTION] [ACT], which was recorded later, on 20.04.2012, therefore, the investigating officer has not committed any legal error in submitting the chargesheet against the applicant.
9. After having heard the learned counsel for the parties and considering the fact that the victim was major at the time of alleged incident. She herself eloped with [ENTITY] (younger brother of the applicant). The victim in her statement given before this Court on 29.09.2011 as well as on 20.04.2012 under [SECTION] [ACT] did not allege anything against the applicant and also did not support the prosecution case, this Court feels that no useful purpose would be served in permitting the criminal proceeding to continue against the applicant.
Under the peculiar facts of this case, this Court is of the view that no offence is made out against the applicant and impugned criminal proceeding against the applicant is liable to be quashed.
Accordingly, the chargesheet dated 08.11.2018 and further criminal proceeding of [CASE NUMBER] arising out of Case Crime No.[SECTION]8 of 2011, under [SECTION], [SECTION], [SECTION] [ACT], Police Station Babugarh, pending in the court of Additional Civil Judge (SD)/ Additional Chief Judicial Magistrate, Hapur, Panchsheel Nagar (Ghaziabad) against the applicnat ([ENTITY]) are hereby quashed.
The application is allowed.
Order Date :- 18.7.2019 SKD