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2018 DIGILAW 1517 (ALL)

Shivnath Gupta v. State of U. P.

2018-07-09

RAHUL CHATURVEDI

body2018
JUDGMENT : RAHUL CHATURVEDI, J. 1. Heard Sri Pulak Ganguly, learned counsel for the appellant, Sunita Sharma, learned counsel for the opposite party no.2 and learned AGA and perused the record. 2. The instant criminal appeal is under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is targeted against bail rejection on behalf of the appellant bearing bail application no. 319 of 2017 vide order dated 20.05.2017 by In-charge Additional Sessions Judge, Court No.2, Sonbhadra. 3. Pursuant to the earlier order passed by this Court, notices were served upon opposite party no.2 and on 17.12.2017 opposite party no.2 has filed counter affidavit through her counsel which was taken on record on 18.01.2018. Similarly learned AGA too has filed his counter affidavit on 16.01.2018 which was taken on record. Learned counsel for the appellant has opted not to file any rejoinder affidavit and wish to argue the case on merit. 4. It is submitted by the learned counsel for the appellant that the applicant has falsely been implicated by the opposite party no.2 Sonmati by lodging an FIR as case crime no. 0006 of 2017, under Sections 376 IPC and Section 3(2)(V) SC/ST Act, P.S. Hathinala, District Sonbhadra, for the incident said to have been taken place on 21.04.2018. This FIR came into existence on 22.04.2017 against sole named accused appellant Shivnath Gupta and consequently the appellant is behind the bars since 24.04.2017. 5. The brief facts which has given rise to the present appeal is, that informant is a married woman aged about 28 years belongs to Scheduled Tribes community. While her husband not present, taking advantage of this void around 10.30 in the morning the applicant who himself is aged about 50-55 years, made an inquiry about her husband and ensuring that there is nobody inside, barged into her dwelling unit and mercilessly ravished her dignity and honour after committing sexual assault upon her. When her husband came back on 22.04.2018 the victim narrated the entire incident to him and as such the present FIR came into existence on 22.04.2017. Soon after lodging of the FIR appellant was arrested by the police and sent to jail since then he is behind the bars. 6. The appellant moved an bail application before learned Additional Sessions Judge, Court No.2 bearing bail application no. Soon after lodging of the FIR appellant was arrested by the police and sent to jail since then he is behind the bars. 6. The appellant moved an bail application before learned Additional Sessions Judge, Court No.2 bearing bail application no. 319 of 2017 but the same was rejected by incharge Sessions Judge on 20.05.2017 after assigning sketchy reasons. 7. After getting the bail application rejected from In-charge Sessions Judge, Sonbhadra, the appellant through his nephew approached this Court. Since the nephew of the appellant was being illiterate person and was not aware of the amendment in the SC/ST Act and the manner and the period of limitation to be computed and therefore there is delay in filing the present appeal. Though the said delay eventually was condoned by the order of the Court dated 14.12.2017 and office was directed to allot regular number to the present appeal. Thus the present appeal for final arguments. 8. Learned counsel for the appellant has drawn the attention of the Court to the medical report of the alleged prosecutrix and the age certificate issued by CMO, Sonbhadra whereby the CMO opined that she is 22 years, a married woman. The medical report have candidly refuted and negated, the factum of rape upon her. There was no injury over her external part of the body or internal part so as to even suggest that she was ever subject of any sexual assault upon her. But in her statements 161 Cr.P.C. and 164 Cr.P.C., she stubbornly asserted the version of FIR claiming that she was subjected to rape by appellant. She has reiterated the same version before learned Magistrate in her 164 Cr.P.C. statement. 9. Per contra learned AGA and learned counsel for the opposite party no.2 have filed their respective affidavits. Learned AGA in paragraph 4 of the counter affidavit has submitted that the appellant is having no criminal antecedent except the present one, however in his counter affidavit h as fully supported the prosecution story mentioning in the FIR and the rest of the statements collected by the I.O. during the investigation. Curiously enough, opposite party no.2 has also filed counter affidavit through a private counsel of which she herself is a deponent but she somersaulted by 180 degrees by giving a totally different version upside and down. This affidavit was sworn by Sonmati herself after putting thumb impression on 18.08.2018. Curiously enough, opposite party no.2 has also filed counter affidavit through a private counsel of which she herself is a deponent but she somersaulted by 180 degrees by giving a totally different version upside and down. This affidavit was sworn by Sonmati herself after putting thumb impression on 18.08.2018. For the purposes of adjudicating the present appeal, it is imperative and desirable to quote the paragraphs 4 and 6 of the counter affidavit:- “(4) “That, it is most respectfully submitted that by the provision of SC/ST Amendment Act, the deponent has informed to the complainant with regard to present case through police personnel. For kind perusal of this Hon'ble Court copy of the notice/report is being annexed herewith and the same is marked as Annexure CA-1 to this counter affidavit.” “(6)......... that the FIR and the statement of the deponent recorded in the case diary was all concocted and put under the political pressure of local leader to harass the applicant, however the deponent has now realized and so with her free will states that she does not want to press upon the allegations made against the applicant/appellant made in the FIR and also as recorded by the police in the case diary.” 10. Learned counsel for the opposite party no.2 has submitted that she lodged the FIR registered as case crime no. 6 of 2017, under Section 376 IPC and Section 3(2)(5) SC/ST Act, P.S. Hathinala, District Sonbhadra against the appellant on 22.04.2017 only on the instigation of the co-villagers and local political leaders only to malign the image of the appellant. In fact no such incident has occurred as alleged in the FIR. The statement recorded by the police and it was made only due to village partybandi. The rival group of the appellant got the thumb impression of the deponent by filing paper and thereafter lodged the present FIR against the appellant. On a keen reading of these paragraphs has shown ample of the light the character of Sonmati, who appears to be the puppet in the hands of her co-villagers, local political leaders just to malign the image of the appellant. In no uncertain terms she state infact no incident has occurred as alleged in the FIR. On a keen reading of these paragraphs has shown ample of the light the character of Sonmati, who appears to be the puppet in the hands of her co-villagers, local political leaders just to malign the image of the appellant. In no uncertain terms she state infact no incident has occurred as alleged in the FIR. The statement given under Section 161 Cr.P.C. and 164 Cr.P.C. given by her by the police as well as before Magistrate are on account of village partybandi and now by means of the counter affidavit she states that she does not want to press upon the allegation made against the appellant in the FIR or the statements recorded by the police or before the Magistrate. All these statements are bogus and motivated one. 11. After making such statements, the deponent herself has taken back the allegation of rape against the present appellant and thus there is nothing to be adjudicated upon and consequently the present appeal is stands allowed. 12. The impugned order rejecting the bail application dated 22.05.2017 by which In-charge Sessions Judge stands quashed and the appellant is set at liberty and to be released on bail. 13. Let appellant-Shivnath Gupta, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions: (i). The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law; (ii). The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (iii). In case, the appellant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. In case, the appellant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. 14. On the above terms and condition the present appeal stands allowed. 15. Though this appeal has ultimately been allowed and has left much bigger question to be adjudicated by this Court. Can one's personal liberty, reputation, dignity and honour which are guaranteed under Article 21 of the Constitution of India and are sacrosanct in nature, could be tossed and played by the unscrupulous litigant, who by end of the day innocently file their affidavit mentioning therein that he/she was puppet in the hands of the political rival or on account of village partybandi have initiated this malicious, coloured prosecution, just to tarnish the image of others ? The answer of this query “NO”. In the present case the poor appellant is behind the bar since 24.04.2017 and now the informant is giving his personal affidavit mentioning therein that no such incident has ever took place. The sin committed by the informant, could it be wiped off by giving a personal affidavit ? The answer of this query was vividly discussed in the recent judgment of Hon'ble Apex Court in the case of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and another in Crl. Appeal No. 416 of 2018 decided by Hon'ble Apex Court on 20.05.2018. The Apex Court has virtually critically analyzed the laudable object for enacting of SC/ST Act which has now been grossly misused by the hands of unscrupulous litigant. Subhash Kashinath Mahajan Vs. State of Maharashtra and another in Crl. Appeal No. 416 of 2018 decided by Hon'ble Apex Court on 20.05.2018. The Apex Court has virtually critically analyzed the laudable object for enacting of SC/ST Act which has now been grossly misused by the hands of unscrupulous litigant. In paragraph 18 of the said judgment of Hon'ble Apex Court spelled out the safeguards to strike a balance between the object of the SC/ST Act vis-a-vis the valuable rights of ordinary citizen guaranteed under Article 21 of the Constitution of India. One of the startling aspect of the issue that the sixth report dated 19th December 2014 of the Standing Committee on Social Justice & Empowerment (2014-15) on the Schedule Caste and the Schedule Tribes (Prevention of Atrocities) Amendment Bill, 2014 has rejected the stand of the ministry to the effect that there was no need to provide for action against false or malafide implication under the Atrocities Act. It was observed therein as hereunder:- “3.9 The Committee are not inclined to accept the contention of the Ministry that those who are found to be misusing the provisions of the Act can be tried as per normal law of the land under the relevant sections of the IPC. The Committee are of the firm view that the PoA Act, being a special law, should be wholesome to the extent that it must contain an inbuilt provision for securing justice for those too who are falsely implicated with malafide under it. More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted clause 14 (Punishment for false or malicious complaint, and false evidence) in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” 16. More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted clause 14 (Punishment for false or malicious complaint, and false evidence) in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” 16. In additional to above yet another facet : In paragraph 24 of the Judgment, it refers about the present Act of 1989 which also owe to misuse on account of monetary incentive being available merely for lodging of the case under Rule 12(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995, which reads as under:- “Rule 12(4):-The District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall make necessary administrative and other arrangements and provide relief in cash or in kind or both within seven days to the victim of atrocity, their family members and dependents according to the scale as provided in Annexure-I read with Annexure II of the Schedule annexed to these rules and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essential items.” 17. It was observed by the Hon'ble Apex Court that these such type of financial incentive would encourage the unprincipled litigant who for the sake of the monetary gain would keep on filing the frivolous FIR leveling serious allegations. 18. This is the best suited position that on one hand a person SC/ST community would not be penalized for initiated the malafides false criminal prosecution against the citizen and in addition to this they are getting assistance by State for the said purpose. Both these situation would open a flood gate of frivolous criminal prosecution against ordinary citizen with impunity and with no deterrence that they would be prosecuted for malicious prosecution. 19. This fact is evident from the fact that as per the data (Crime in India 2016-Statics) complied by the National Crime Records Bureau, Ministry of Home Affairs under the headings “Police Disposal of Crime/Atrocities against Scs cases( State/ UT-wise)-2016” and “Police Disposal of Crime/Atrocities against STs cases (State/UT-wise)-2016”. It mentioned that in the 2016, 5047 cases were found to be false cases out of the investigated out of SC cases and 912 cases were found to be false cases out of ST cases. It mentioned that in the 2016, 5047 cases were found to be false cases out of the investigated out of SC cases and 912 cases were found to be false cases out of ST cases. It was pointed out that in the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulted in conviction. 20. In the present case it has been fairly conceded by the learned counsel for the opposite party no.2 that opposite party no.2 after lodging of the FIR have received amount of Rs. 1.50 lakhs pursuant to the above mentioned rule of the SC/ST Act from the exchequer of State Government. 21. Be it so, in the above mentioned facts and circumstances, this Court is not ready to adopt a passive or remain as a silent by stander or passive spectator. A person (appellant) who is languishing in jail for more than one year without any rhyme or reason and on the basis of false and malicious allegations of rape upon him, his entire reputation, dignity among his relatives, friends and society has mercilessly tarnished and butchered. The lady (informant) should not be permitted to enjoy the fruits of benevolence of the State and the money she has received from the State, must be taken back by the State machinery. 22. While allowing the present appeal and under the circumstance I hereby direct the DM, Sonbhadra / CJM, Sonbhadra to hold an short inquiry about the truthfulness as to whether she has received a Rs. 1.50 lakhs or not and if yes, then recover from her the entire amount within 15 days from the date of production of certified copy of this order.