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2020 DIGILAW 858 (ALL)

Nirankar Mishra v. State of U. P.

2020-05-13

DINESH KUMAR SINGH I

body2020
ORDER : Dinesh Kumar Singh-I, J. 1. Heard Sri Suresh Chandra Pandey, Advocate holding brief of Sri Sushil Kumar Mishra, learned counsel for the applicant, Sri Rudra Pratap Singh, learned counsel for the informant and Sri B.A. Khan, learned A.G.A. for the State. 2. The present application has been filed with a prayer to quash the impugned order dated 25.5.2019 passed by Special Judge (SC/ST) Act, in Complaint Case No. 55 of 2018 under Sections 504/354 IPC & 3(1)(Dha) SC/ST Act, 1989, P.S. Ghorawal as well as entire proceedings of the aforesaid case. 3. As per the complaint, the opposite party no. 2, in order to obtain a house under Pradhanmantri Awas Yojna, had made an application and after inquiry by accused-applicant Nirankar Mishra in presence of Pradhan and Secretary it was found correct that she was entitled for a house and her name was entered at Sr. No. 33 in the list of beneficiaries. The co-accused Om Prakash Singh and other co-accused Moti Lal Verma had demanded Rs. 10,000/- from her to place her name in the final list but because of being poor, she could not arrange the said money. Despite that the co-accused Om Prakash after giving temptation to her that he would get the house allotted to her, took bribe from her of Rs. 5,000/-. One week thereafter the opposite party no. 2 was called by him and was told that she had already availed the benefit of the said scheme earlier, hence her name would be deleted. Being disappointed, she returned home and two-three days thereafter, when she obtained list of beneficiaries, she came to know that her name had been deleted. Feeling aggrieved on 20.8.2008, she gave an application to the Chief Minister, Prime Minister, Rashtriya Adhyaksh Mahila Ayog and D.M., Sonbhadra and also made a complaint at IGRS Portal. Because of this action on her part, co-accused Om Prakash Singh along with Moti Lal Verma became annoyed and submitted wrong report at the said Portal and her complaint was disposed of. Thereafter, on 15.10.2018 at about 10:00 am, the opposite party no. 2 was called at the Block and during the conversation going on, she was taken to a vacant room in the Block which belonged to B.D.O. and there she was abused and when opposite party no. Thereafter, on 15.10.2018 at about 10:00 am, the opposite party no. 2 was called at the Block and during the conversation going on, she was taken to a vacant room in the Block which belonged to B.D.O. and there she was abused and when opposite party no. 2 apologised hold with folded hands, the co-accused Om Prakash Singh addressed her as 'Randi' and closed the door, snatched her mobile and forcibly touched her breast, torn her blouse and established physical relationship forcibly and when she screamed out loudly, accused-applicant Nirankar Mishra came on the spot and became nervous having seen the condition of the opposite party no. 2 and directed the co-accused Om Prakash Singh to go to his seat. Thereafter, he took details from the opposite party no. 2 of the occurrence and thereafter he also pressed her breast and abused her using caste indicative words in filthy language and told her that whatever was done by the co-accused Om Prakash Singh, she deserves that only and expelled her from office. After being disappointed, opposite party no. 2 gave information of this occurrence to P.S. Ghorawal but she was not heard and was returned because the matter was related to B.D.O.. Feeling disappointed on 17.10.2018, she gave a registered letter to S.P. Sonbhadra but no action was taken then she approached the court. 4. Upon the said complaint, statement of the opposite party no. 2 was recorded under Section 200 Cr.P.C. in which, in support of the complaint she has stated that she had applied for house to be allotted under Pradhanmantri Awas Yojna at the Kharutaon Block through proper forum and her name was at Sr. No. 33. A sum of Rs. 10,000/- was demanded for allotment of the said house but at the instance of Rajesh Yadav, Secretary she somehow could arrange Rs. 5,000/- and handed over the said amount to him on 21.8.2018 but even then she was not allotted the house. On 15.10.2018, co-accused Om Prakash Singh called her and took her to the room of accused-applicant Nirankar Mishra, B.D.O. and there she was abused using caste indicative words and was molested by pressing her breast, whereafter she raised alarm but he would not listen and committed rape upon her. On 15.10.2018, co-accused Om Prakash Singh called her and took her to the room of accused-applicant Nirankar Mishra, B.D.O. and there she was abused using caste indicative words and was molested by pressing her breast, whereafter she raised alarm but he would not listen and committed rape upon her. After opening the door, she kept standing there only and in the meantime accused-applicant Nirankar Mishra, B.D.O. came in a vehicle whom she told about all this but he snubbed her telling her that she should leave immediately. Thereafter she gave an application at the P.S. but the report was not recorded, rather she was counselled that the matter is of Block, hence she should post a registry. Thereafter on 16.10.2018 she sent a complaint to S.P.. Thereafter when no action was taken, she approached the court. 5. Record reveals that trial court had recorded statements of Ashok Bharti, under Section 202 Cr.P.C., as CW-1 in which he has stated he knows the opposite party no. 2 for last ten years. On 15.10.2018 at about 11:30 am in the morning, when he was going on a motor-cycle to Ghorawal, opposite party no. 2 met him in disheveled condition. Her clothes were torn. Then he had inquired from her as to what had happened, then she told him that for allotment of house co-accused Om Prakash Singh had called her in the room of accused-applicant Nirankar Mishra, B.D.O. and there she was raped by him. Thereafter he took her to the P.S. but her complaint was not registered. Thereafter on 16.10.2018, he came along with the opposite party no. 2 to post office and a complaint was written by her which was posted to S.P. Sahab. The opposite party no. 2 had also told her that Rajesh Yadav, Secretary had taken about sum of Rs. 5,000/- for allotment of a house to her. 6. The other witness, Prem Lal has been examined as CW-2, under Section 202 Cr.P.C., who also has stated that he knows the opposite party no. 2 as she belongs to his village. The opposite party no. 2 had told him that about two months ago, she had gone to the Block, where Secretary had committed rape upon her. She had also told that injustice was committed against her and that he should co-operate with her. 7. 2 as she belongs to his village. The opposite party no. 2 had told him that about two months ago, she had gone to the Block, where Secretary had committed rape upon her. She had also told that injustice was committed against her and that he should co-operate with her. 7. On the basis of said evidence, the trial court has passed impugned summoning order summoning the accused-applicant Nirankar Mishra and one co-accused Om Prakash Singh, under Sections 504, 354 IPC and 3(1) Gha of the S.C./S.T. Act recording therein that complainant/opposite party no. 2 had stated in her statement under Section 200 Cr.P.C. that co-accused Om Prakash Singh had called her on 15.10.2018 and took her to the room of accused-applicant Nirankar Mishra, B.D.O. and there she was abused using caste indicative words and thereafter touched her breast. The room was closed. She screamed loudly but he would not listen and forcibly committed rape upon her. She had also given an application to S.P., Sonbhadra being paper no. 3Ka/5 to 3Ka/6 and 3Ka/7 stating that the co-accused Om Prakash Singh had called her and thereafter had torn her blouse and tried to establish physical relationship with her forcibly, whereon she raised alarm hearing which B.D.O. Sahab i.e. accused-applicant came on the spot came. Thus, there was variation/discrepancies in the statements given by her in the complaint made before the court and version given before the S.P., Sonbhadra but it has been recorded that at the time of evaluating the version of the complainant, too technical a view should not be taken and has further gone on to record that CW-1 has clearly stated that co-accused Om Prakash Singh had called opposite party no. 2 for allotment of a house and had taken her to room of accused-applicant Nirankar Mishra, B.D.O. and started committing rape forcibly and CW-2 had also stated that the opposite party no. 2 had told him that she had gone to the Block, where Secretary Sahab had committed rape upon her. 8. The submission made by the learned counsel for the applicant is that the opposite party no. 2 made an application on 11.5.2018 before the BDO Ghorawal mentioning that she had not been allotted house despite being entitled under the Prime Minister House Scheme Rural. On the said application, ADO was directed to make an inquiry. 8. The submission made by the learned counsel for the applicant is that the opposite party no. 2 made an application on 11.5.2018 before the BDO Ghorawal mentioning that she had not been allotted house despite being entitled under the Prime Minister House Scheme Rural. On the said application, ADO was directed to make an inquiry. After the inquiry, ADO submitted inquiry report dated 18.5.2018 before the BDO giving finding that the opposite party no. 2 was owner of the two houses. On the said report, the then Nirankar Mishra, BDO directed the co-accused Om Prakash Singh to take necessary action in the matter. On the basis of the said inquiry report dated 18.5.2018 the house under the scheme was not allotted to the opposite party no. 2 being found not eligible, when she was found owner of the two houses in the Block in question. However, she made a false complaint before several higher authorities with the allegation that she was illegally denied allotment of house and that the officials had insulted her. Pursuant to that complaint, the applicant, who joined as BDO, Ghorawal on 21.7.2018 directed the co-accused Om Prakash Singh to submit explanation vide communication dated 6.9.2018, which was submitted on 11.9.2018 stating therein that as per the record, the opposite party no. 2 had been allotted house in the year 2007-08 under the said scheme for which she had received due amount duly credited in her bank account no. 10438 as such she was not entitled for allotment of other house and therefore her application had been rightly rejected. Aggrieved by the non-allotment of the house, the opposite party no. 2 made a false complaint under IGRS the online government complaint portal, which was entertained and the report had been submitted before the Authorities with clear finding that the opposite party no. 2 had made such complaint in retaliation just to spoil the image of the Government Officers. The opposite party no. 2 failed to implicate any Government Officer on the basis of her false complaint, which she used to make frequently. She made a false complaint against applicant and two other officials alleging that co-accused had taken Rs. 2 had made such complaint in retaliation just to spoil the image of the Government Officers. The opposite party no. 2 failed to implicate any Government Officer on the basis of her false complaint, which she used to make frequently. She made a false complaint against applicant and two other officials alleging that co-accused had taken Rs. 5,000/- as bribe in order to get her allotted a house and still the same had not been allotted then on 15.10.2018, at about 10:00 am, co-accused Om Prakash Singh took her in the room of accused-applicant B.D.O. and started abusing and so on, which is version mentioned above in the complaint. It is further mentioned that the incident is said to have been taken place on 15.10.2018 which is absolutely false as the applicant had sought leave from 14.10.2018 to 23.10.2018 and had gone on LTC. 9. After having heard both the sides and having perused the record, I find that the co-accused Om Prakash had also given an application to B.D.O., Ghorawal, District Sonbhadra requesting that an inquiry may be held in respect of allegations made against him and other co-accused by the opposite party no. 2. In the said complaint, it has been mentioned by him that the opposite party no. 2 had made allegation against him and other co-accused that her name was deleted from the list of the allottees and that she was ill-treated regarding which he has to submit that according to the documents, the opposite party no. 2 had already been allotted a sum of Rs. 38,500/- in the year 2007-08, which had been credited in her account no. 10438 in two instalments. In respect of the allotment of the house, an application was moved by her on 11.5.2018, regarding which an inquiry was conducted by Sahayak Vikas Adhikari (Krishi), Moti Lal Verma, report of which is annexed, in which it was found that a 'pakka' house had been constructed containing five six rooms with 'pakki' walls having roof of tiles. In this regard, B.D.O., Pradeep Kumar had been apprised when query was made. When the co-accused Om Prakash Singh had shown documentary evidence in respect of house having been allotted, he was abused regarding which the officials/computer operator etc. can be inquired and even B.D.O. was apprised but nothing was done against the opposite party no. In this regard, B.D.O., Pradeep Kumar had been apprised when query was made. When the co-accused Om Prakash Singh had shown documentary evidence in respect of house having been allotted, he was abused regarding which the officials/computer operator etc. can be inquired and even B.D.O. was apprised but nothing was done against the opposite party no. 2 and the allegation being made now against him and other co-accused was absolutely false. 10. The inquiry report submitted by Khand Vikas Adhikari, Ghorawal addressed to D.M., Sonbhadra dated 24.9.2018 is also annexed at page 38 to 39 of the affidavit, which relates to the complaint made by the opposite party no. 2 and after inquiry, the finding given is that the co-accused Om Prakash Singh had given clear reply that opposite party no. 2 had given an application in respect of allotment of house on 11.5.2018, inquiry regarding which was conducted by Sahakari Vikas Adhikari, (Krishi) Sri Moti Lal. Verma and she was found ineligible for the allotment of house by which she became annoyed and thereafter she has levelled false allegation against the applicant and other co-accused. 11. From the statement of co-accused and written complaint of opposite party no. 2, it transpires that some talks had been held between two relating to eligibility/ineligibility of the opposite party no. 2 to get the house but the allegations made against the co-accused and applicant were found to be false and no evidence was provided from the side of complainant/opposite party no. 2. It has also been submitted in the said report that feeling aggrieved by non-allotment of a house, she has made a false demeaning allegations against the applicant Nirankar Mishra and other co-accused Om Prakash Singh in order to besmirch their reputation. 12. The said report which is quoted above as well as the perusal of the statement recorded above would indicate that there are huge discrepancies in the version given by her/opposite party no. 12. The said report which is quoted above as well as the perusal of the statement recorded above would indicate that there are huge discrepancies in the version given by her/opposite party no. 2 in the complaint and her statements before the court under Section 200 Cr.P.C. and it is also noticeable here that the trial court itself had noted about vide discrepancies being there between versions given to the S.P. and version placed before the court in complaint and yet the same was ignored by the trial court making a passing remark that too technical a view should not be taken in such matters, which does not sound to be an appropriate approach. The trial court ought to have seen these vide discrepancies and should have tried to find out reasonable answer to get explanation of them but no such effort appears to have been made by him in the said order. It is palpable from the version given in the complaint that entire story revolves round the dispute regarding allotment of house to the opposite party no. 2 under Pradhanmantri Awas Yojna. The defence version which has come on record appears to be that she had already availed the benefit of the said scheme, which is evident from the inquiry conducted by Sahayak Vikas Adhikari (Krishi) dated 24.9.2018, in which it was found that opposite party no. 2's allegation was totally false. It has also come on record that she had made a complaint to IGRS Portal, from where also her complaint with respect to allotting a house to her had been rejected, therefore feeling frustrated, she appears to have made false complaint against the applicant and other co-accused in order to build pressure upon them because co-accused Om Prakash Singh has submitted a report against her stating that she had already availed the benefit of the said scheme and was not eligible to get a house, therefore the entire prosecution version as mentioned by the complainant appears to be a false version initiated with a view to maligning reputation of the accused-applicant as well as that of co-accused. Victim is a lady of about above age of 38 years and the occurrence which is said to have taken place in office and that too, two persons are being said to have molested her and one of them i.e. accused applicant is said to have committed rape in the premises of the office, appears to be a false version in order to implicate the accused applicant only because of frustration that she could not get a house allotted under the above mentioned scheme. 13. I would like to rely upon the law laid down by Hon'ble Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others,: 1992 Supp (1) SCC 385. Paragraph no. 102(7) of the said judgment is as follows:- "102(7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 14. In view of above law, the proceedings of the above mentioned case deserves to be quashed and are accordingly quashed. The application u/s. 482 Cr.P.C. is allowed.