Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1474 (ALL)

Ishaq Ali Khan v. State of Uttar Pradesh

2017-05-31

AJAI LAMBA, SATYA NARAIN AGNIHOTRI

body2017
JUDGMENT : Ajai Lamba, J. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No.0636 of 2017, under Sections 363, 366, 354(B), 376, 504, 506 Indian Penal Code and Section 3/4 Protection of Children from Sexual Offences Act, Police Station Kotwali Nagar, District Bahraich. 2. We have carefully gone through the contents of the impugned First Information Report. A girl stating her age to be 15-16 years got the crime registered on the premise that her immediate family members who are accused in the First Information Report are coercing her to get married to Danish. Danish is a bad character and has already given divorce to his earlier wife and, therefore, complainant does not want to get married to him. In prosecution of the scheme the offence has been committed by the accused. It has been alleged that the complainant, a minor, is being forced to get married. 3. Learned counsel appearing for the petitioners has referred to statement of the prosecutrix recorded under Section 164 Criminal Procedure Code, 1973 to say that the story set up by the complainant/prosecutrix in the statement is different from the contents of the First Information Report. In the statement recorded under Section 164 Criminal Procedure Code, 1973 the complainant stated her age as 16 years and has clearly stated that Danish (non-petitioner) and Sujjan (petitioner no.7) entered the house and on a knife point dragged her out. Danish raped the prosecutrix while Sujjan was standing guard. It has further been stated in the statement that she is being coerced by her family members to get married to Danish who is bad character and has already divorced his earlier wife. 4. Considering the shocking facts and circumstances emerging from the impugned First Information Report and the statement of the prosecutrix, we find no reason to interfere in extraordinary writ jurisdiction in favour of the accused. 5. Investigation is at inceptive stage, the crime having been committed on 2.5.2017. The offence itself is of serious nature. 6. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that no such incident took place or that the petitioners are innocent. No such material has been placed on record that can be translated into legal evidence so as to disprove the accusation in the impugned First Information Report. 7. 6. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that no such incident took place or that the petitioners are innocent. No such material has been placed on record that can be translated into legal evidence so as to disprove the accusation in the impugned First Information Report. 7. We have considered the contention of learned counsel for the petitioner(s), in context of the material/pleadings relied on by the petitioner(s), in context of judgment rendered by Hon'ble Supreme Court of India in Rajiv Thappar and others v. Madan Lal Kapoor (2013) 3 SCC 330 . In Rajiv Thappar's case (supra), the following (relevant portion) has been held:- "29. The issue being examined in the instant case is the jurisdiction of the High Court under section 482 of the Cr.P.C., 1973 if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under section 482 of the Cr.P.C., 1973 at the stages referred to here-in-above, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under section 482 of the Cr.P.C., 1973 the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under section 482 of the Cr.P.C., 1973 to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Cr.P.C., 1973: 30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (Emphasised by us) 30.5. 30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (Emphasised by us) 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under section 482 of the Cr.P.C., 1973 Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." 8. We are of the considered opinion that the material/pleadings on which learned counsel for the petitioner's has relied, is not such as would rule out and displace the assertions contained in the charges/allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false. 9. Under the circumstances, we find no ground to interfere in extraordinary writ jurisdiction. 10. The petition is dismissed. 11. Before parting with the order, we hereby direct Superintendent of Police Bahraich to ensure that an effective investigation is conducted under his own supervision and concluded at the earliest. Protection, if required, be given to the complainant, considering her age as 15/16 years and also considering that she had made allegations against her family members. 12. Let a copy of this order be conveyed to Superintendent of Police, Bahraich by Shri Faisal Ahmad Khan, learned State counsel as also by the Senior Registrar of the court.