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2018 DIGILAW 916 (ALL)

Balendra v. State Of U. P.

2018-04-13

J.J.MUNIR

body2018
JUDGMENT : 1. Supplementary affidavit on behalf of applicant and counter affidavit on behalf of O.P. No.2 filed today are taken on record. 2. Heard Sri Pradeep Kumar Tiwari, learned counsel for the applicant, Sri Ravindra Prakash Srivastava, who has put in appearance on behalf of O.P. No.2, first informant and Sri Shyam Dhar Yadav, learned AGA along with Sri Mayank Awasthi appearing for the State. 3. This application has been filed with a prayer to quash the entire proceedings of Case No. 8365 of 2015 (State vs. Balendra), under Sections 363, 366 IPC arising out of Case Crime No. 547 of 2009, Police Station Dhanghata, District Sant Kabir Nagar pending in the court of Chief Judicial Magistrate, Sant Kabir Nagar. 4. The submission of the learned counsel for the applicant is that the applicant and the daughter of second opposite party have married each other of their freewill on 05.07.2009. The date of birth of applicant's wife Sunita is 01.01.1988, and, as such, she is aged about 21 years. However, the second opposite party under some ill gotten advice lodged a first information report against the applicant and others on 26.06.2009 alleging that the applicant on 13.02.2009 had enticed away her minor daughter Sunita aged about 13 years with the help of co-accused Israr s/o Iqbal and another. On the basis of the said FIR, case crime no. 457 of 2009, under Sections 363, 366, 368, 506 IPC, P.S. Dhanghata, District Sant Kabir Nagar came to be registered against the applicant and the other nominated co-accused. 5. Aggrieved by the aforesaid FIR the applicant and his wife Sunita together filed a Criminal Misc. Writ Petition No. 1052 of 2010, Smt. Sunita and another vs. State of U.P. and others, challenging the FIR wherein this Court vide order dated 25.01.2010 issued notice to the second opposite party and stayed the applicant's arrest. It is pointed out that the police in a one sided, lackadaisical and biased manner investigated the crime, and, have in due course, submitted a charge sheet on 03.01.2011, on the basis of which the learned Chief Judicial Magistrate has taken cognizance on 01.03.2011 summoning the applicant to stand his trial in Criminal Case No. 277 of 2011, under Sections 363, 366 IPC pending before the court of C.J.M. Sant Kabir Nagar. 6. 6. It is pointed out that the parties are now married for the past eight years and have been blessed with four children. The first informant-opposite party no.2 has accepted the marriage between the applicant and her daughter and does not wish to prosecute the case founded on the first information lodged by her. In this regard, she had filed an application dated 31.01.2018 before the Magistrate supported by an affidavit also dated 31.01.2018, a certified copy of which are annexed as part of Annexure No.6 to the affidavit in support of the present application. However, the offence being not compoundable the hands of the Magistrate are tied down. 7. Before this Court a counter affidavit has been filed on behalf of the opposite party no.2, where in paragraph 9, it has been averred: "9. That the contents of paragraph nos. 17, 18, 19, 20, 21, 22 and 23 of the affidavit need no comments. It is further submitted that the daughter of the opposite party no.2 namely Suneeta herself went before the applicant and solemnized her marriage with the applicant on 05.07.2009 according to Hindu rites and customs and at that time the daughter of opposite party no.2 attained the age 21 years. On their wedlock four children Roshani, Sonam, Payal and Satyam born and they are living happily life. In this case both parties entered into compromise outside of the court. The informant does not want to contest the case against the applicant. If the proceeding of case no. 8365 of 2015, State vs. Balendra, under Sections 363, 366 IPC, arising out of Case Crime No. 547 of 2009, Police Station Dhanghata, District Sant Kabir Nagar pending in the court of Chief Judicial Magistrate, Sant Kabir Nagar is dropped, the opposite party no.2 has no any objection and if the present application under section 482 Cr.P.C. filed by the applicant is allowed, the opposite party no.2 has no objection." 8. Looking to the stand now taken by the first informant, permitting the impugned prosecution to continue would be an abuse of the process of the court, wastage of public time and money besides harassment of the parties for no reasonable cause. 9. Looking to the stand now taken by the first informant, permitting the impugned prosecution to continue would be an abuse of the process of the court, wastage of public time and money besides harassment of the parties for no reasonable cause. 9. So far as the State are concerned, Sri Shyamdhar Yadav, learned A.G.A. appearing on behalf of the State has pointed out that this is a second application under Section 482 Cr.P.C. for the same relief inasmuch as, earlier the applicant Balendra had filed an application u/s 482 Cr.P.C. no.16388 of 2011 seeking to challenge the charge sheet dated 19.11.2010, arising out of Case Crime No.547 of 2010, under Sections 363 & 366 IPC, Police Station Dhanghata, District Sant Kabir Nagar, which this Court vide order dated 18.05.2011 refused to quash. In the submission of the learned A.G.A., the present application under Section 482 Cr.P.C. for the same relief being a second application at the instance of the same applicant is not maintainable. The said objection regarding maintainability of a second application for the same relief by the same applicant is certainly a question that is required to be addressed. This application, though no doubt, a second application by the same person for the same relief under Section 482 Cr.P.C. is based on subsequent developments and the facts that comprise of the first informant accepting the marriage of the parties, the parties having lived together as man and wife as far long as a period of 8 years, and, in the meantime, having raised a family of four children. The question is as to whether in view of these subsequent developments can this Court entertain a second application for the same relief at the instance of the applicant under Section 482 Cr.P.C.? This Court is of opinion that it is permissible in law to do so. 10. There is guidance on the issue by the Hon'ble Supreme Court in State represented by D.S.P., SBCI, Chennai Vs. K.V. Rajendra and others, (2008) 8 SCC 673 , where it has been held:- "26. That apart, the respondents did not file any independent application for transferring the investigation from the State Police authorities to the CBI authorities on certain events which had occurred after the final order was passed by the High Court disposing of the earlier criminal petition under Section 482 of the Code. That apart, the respondents did not file any independent application for transferring the investigation from the State Police authorities to the CBI authorities on certain events which had occurred after the final order was passed by the High Court disposing of the earlier criminal petition under Section 482 of the Code. A prayer could be made by the respondents before the High Court for transferring the investigation from the State Police authorities to the CBI by filing a fresh petition under 16, 17 Section 482 of the Code in view of subsequent events that had taken place after the final order disposing of the earlier criminal petition was passed. Again, as noted herein earlier, the respondents had never applied for transferring the investigation from State Police authorities to the CBI by making an independent application. Accordingly, we do not think that the High Court was justified in handing over the investigation of the case from the State Police authorities to the CBI authorities. It is needless to mention that it would be open for the respondent to make independent application under Section 482 of the Code if they find that subsequent events having been taken place, the investigation must be transferred from State Police authorities to CBI. Accordingly, we are unable to sustain the impugned order of the High Court in view of our discussions made hereinabove. Therefore, the impugned order is set aside. The appeal is thus allowed. 27. We make it clear once again that if a fresh criminal petition under Section 482 of the Code is filed by the 17, 18 respondents for transferring the investigation from State Police authorities to CBI after bringing certain subsequent events that had taken place after the disposal of the original criminal petition if there be any, it would be open for the High Court to entertain such application if it is warranted and decide the same in accordance with law for which we express no opinion on merit." 11. This application under the circumstances of the case is, therefore, held to be maintainable. This Court having found that under the facts and circumstances now obtaining the impugned prosecution cannot be permitted to continue, this application deserves to succeed. 12. In the result, this application succeeds and is allowed. The impugned charge sheet dated 19.11.2010 giving rise to proceedings of Case No.8365 of 2018, State Vs. This Court having found that under the facts and circumstances now obtaining the impugned prosecution cannot be permitted to continue, this application deserves to succeed. 12. In the result, this application succeeds and is allowed. The impugned charge sheet dated 19.11.2010 giving rise to proceedings of Case No.8365 of 2018, State Vs. Balendra (arising out of Case Crime No.547 of 2009), under Sections 363 & 366 IPC, Police Station Dhanghata, District Sant Kabir Nagar, pending in the court of Judicial Magistrate, Sant Kabir Nagar is hereby quashed. 13. An entry shall be made in the General Diary that proceedings arising out of Case Crime No.547 of 2009, under Sections 363 & 366 IPC, Police Station Dhanghata, District Sant Kabir Nagar, stand quashed under orders of this Court. The Judicial Magistrate, Sant Kabir Nagar shall ensure that this part of the order is carried out in the General Diary at the Police Station concerned.