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2012 DIGILAW 160 (UTT)

VINAY TIWARI v. VIDYA

2012-04-13

B.S.VERMA

body2012
JUDGMENT (Hon’ble B.S. Verma, J.) 1. This criminal misc. application U/S 482 Cr.P.C. has been filed with the prayer to quash the order dated 28.8.2009, passed by Additional Chief Judicial Magistrate, Kotdwar in Criminal Case No. 275 of 2009, Smt. Vidya Rawat Vs. Vinay Tiwari, whereby the accused/applicant was summoned to face trial U/Ss 366, 376, 498 I.P.C. 2. The facts of the case are that respondent is the tenant in the premises owned by applicant. On several occasions the applicant had asked the husband of the respondent to vacate the premises, but they did not vacate the said premises. According to applicant on 14.12.2008 the husband of respondent abused the applicant and said that he will teach a lesson to him. Thereafter a false F.I.R. was lodged on 15.12.2008 by Gopal Singh Rawat husband of applicant, disclosing therein that his wife had gone with the applicant. Thereafter on 20.12.2008 the respondent came to the police station herself and told the police that she went for roaming and wandering and body had taken her by force and she did not want to go with her husband or with her parents. The respondent also gave her statement before the S.D.M. Kotdwar and the S.D.M. passed order for keeping her at Nari Niketan. The respondent was also medically examined and according to medical report she was 22 years of age and she was habitual for sexual intercourse. The police did not take any action as no case was made out against the applicant. 3. Thereafter on 22.01.2009 the respondent Smt. Vidya filed complaint against the applicant before Chief Judicial Magistrate Kotdwar and narrated the facts that she was living along with her husband at the house of the applicant as tenant. On 14.12.2008 at 6-30 P.M. the applicant took her with him on the pretext of some urgent work and when she resisted the accused threatened her if she did not come with him he will kill her husband. Then at 7.00 p.m. the accused carried her in some house at Bhawakot Kotdwar and forcibly committed rape upon her. She further mentioned in the written complaint that on 15th December, 2008 the accused carried her at his maternal uncle’s house at Kashipur and there also committed forcible rape upon her. On 16.12.008 at 3.00 a.m. he carried her in a hotel and there also committed rape on her. She further mentioned in the written complaint that on 15th December, 2008 the accused carried her at his maternal uncle’s house at Kashipur and there also committed forcible rape upon her. On 16.12.008 at 3.00 a.m. he carried her in a hotel and there also committed rape on her. It is further mentioned in the complaint that on 15.12.2008 also report of the incident was lodged by her husband and the police took her in custody and under the pressure of accused did not lodge the F.I.R. Her husband also sent complaint to S.P. Pauri and State Women Protection Cell but no action was taken and now she has filed the complaint. 4. The learned Magistrate recorded the statement of Smt. Vidya U/S 200 Cr.P.C. and the statement of Dr. Sangeeta Negi Medical Officer Government Hospital Kotdwar U/S 202 Cr.P.C. Smt. Vidya has narrated the whole story in her statement and specifically made statement that the accused had kidnapped her under threat and also committed rape upon her against her will by giving threats to the life of her husband. The Medical Officer also stated that on 20.12.2008 at 6.05 P.M. Smt. Vidya was medically examined. 5. The learned Addl. Chief Judicial Magistrate, Kotdwar after perusing the statements of witnesses and other documentary evidence, found that a prima facie case U/Ss 366,376 and 498 I.P.C. is made out against the accused/applicant and accordingly he was summoned to face trial vide impugned order dated 28-8-2009. 6. I have heard learned counsel parties and perused the record. The learned counsel appearing on behalf of accused/applicant has submitted that the complainant has filed the false complaint against the applicant. Prior to the criminal complaint, an F.I.R. was also lodged by her husband on 18.12.2009 about this incident and the complainant had denied any such incident and had refused to live with her husband and parents. Her statement was recorded by the S.D.M. and then she was sent to Nari Niketan. Learned counsel also contended that Smt. Vidya a major married lady and had she been kidnapped by applicant by force she would have raised alarms at various place but she did not do this and it clearly indicates that she was a consenting party. According to her she was used for sexual intercourse by the accused at various places, but she did not raise any alarm. According to her she was used for sexual intercourse by the accused at various places, but she did not raise any alarm. She is a major lady of 22 years and according to medical report she was habitual for sexual intercourse and thus no offence U/Ss 366, 376, 498 I.P.C. is made out and the learned Magistrate has committed a manifest error of law by summoning the accused. 7. I do not find any substance in the above submissions of learned counsel for the applicant. In her complaint Smt. Vidya had mentioned that she was kidnapped by accused on the pretext of some urgent work and when she questioned him, he threatened her to accompany him otherwise he would kill her husband. She has also narrated about the commission of forcible rape upon by the accused after giving threats. Her medical examination was also conducted soon after the incident on 20.12.2008 and the Medical Officer has opined that her hymen was torn and she was habitual for sexual intercourse. Her semen was sent for chemical examination and the report has not yet come. Smt. Vidya in her complaint as well as statement U/S 200 Cr.P.C. has mentioned that her husband had lodged the F.I.R. of the incident but the police under the pressure of accused did not take any action. She also stated that complaints were also sent to S.P. Pauri and State Women Protection Cell Dehradun, but no action was taken and when no action was taken she was compelled to file complaint in the court. 8. Thus, prima facie evidence of Smt. Vidya is there against the accused/applicant for kidnapping her, and committing forcible rape upon her as well as evidence of enticing or taking away or detaining with criminal intent a married woman. 9. In the case of Central Bureau of Investigation Vs. K.M. Sharan, reported in 2008(4) SCC 471, the Hon’ble Apex Court has held that in inherent power of High Court U/S 482 Cr.P.C. the High Court was not supposed to embark upon the enquiry whether the allegations in F.I.R. and the charge sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. K.M. Sharan, reported in 2008(4) SCC 471, the Hon’ble Apex Court has held that in inherent power of High Court U/S 482 Cr.P.C. the High Court was not supposed to embark upon the enquiry whether the allegations in F.I.R. and the charge sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. The High Court should have limited its consideration-whether allegations made in the FIR and the charge sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused. 10. The learned Magistrate after evaluation of evidence U/S 200 and 202 Cr.P.C. as well as the documentary evidence has passed a detailed order giving reasons that prima facie case U/Ss 366, 376,498 I.P.C. is made out against the accused and accordingly summoned him to face trial. I do not find any manifest error of law in the summoning order. This court while exercising the jurisdiction U/S 482 Cr.P.C. is not supposed to embark upon an inquiry about the truthfulness of the evidence taken by learned Magistrate and the documentary evidence. At this stage it is to be seen whether prima facie case is made out or not and whether there has been abuse of process of law? I do not find any abuse of process of law while summoning the accused to face the trial. The accused will have full opportunity to place his case in defence before the learned trial court. 11. The Criminal Misc. Application lacks merit and is dismissed. The interim order dated 19.11.2009 is vacated. 12. However, if the accused/applicant moves bail application before the court below, the same shall be disposed of without any delay.