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2022 DIGILAW 409 (UTT)

Kuldeep v. State of Uttarakhand

2022-12-15

SANJAYA KUMAR MISHRA

body2022
JUDGMENT Sanjaya Kumar Mishra, J. - By filing this writ petition, the petitioners have prayed for the following reliefs: (i) Issue a writ order or direction in the nature of certiorari quashing the impugned FIR dated 3.12.2022 registered as Case Crime No. 311 of 2022 under Section 376 IPC and 3/4 of Dowry Prohibition Act P.S. Kotwali Kotdwar District Pauri Garhwal. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioner in Case Crime No. 311 of 2022 under Section 376 IPC and 3/4 of Dowry Prohibition Act P.S. Kotwali Kotdwar District Pauri Garhwal till the pendency of present petition. 2. Learned counsel for the petitioners would submit that the entire incident reflected in the FIR is false and it has been lodged as counter blast to the FIR lodged by the petitioners, i.e. Annexure-3 at page-22 of the brief, against the private respondent no. 3. However, he further admits that the FIR lodged by the petitioners was never registered by the police. It is not known whether if any such FIR was at all lodged before the S.H.O. of the concerned police station as Annexure-3. Learned counsel, however, draws the attention of this court to the seal appearing on the bottom of the petition. Thus, it is clear that the copy of the FIR has not been filed, which is relied upon by the petitioners. He has relied upon an application addressed to the S.S.P. Moreover, the contents of the FIR reveal that there is a marriage proposal between the complainant and the petitioner no. 1, and, in pursuance thereto, there are some demand for dowry. Mother of the petitioner no. 1 handed over Rs. 500/- as nishani to the complainant, but, later on, she was informed by the family members of the petitioner that the marriage proposal is cancelled. However, thereafter, the petitioner kept talking to the complainant over phone. 3. On 25.10.2022, he came to meet the complainant and incited her to go to Relax Hotel and committed rape upon her stating that marriage between them is going to be held and they should indulge in such relationship. 4. Learned counsel for the petitioners would further submit that there are no allegation and no evidence of the same. 5. 3. On 25.10.2022, he came to meet the complainant and incited her to go to Relax Hotel and committed rape upon her stating that marriage between them is going to be held and they should indulge in such relationship. 4. Learned counsel for the petitioners would further submit that there are no allegation and no evidence of the same. 5. At the stage of considering whether to quash the FIR or not or to entertain the application for quashing of the FIR, the Court is not required to indulge in a mini trial to determine the truth of the allegations made therein. Thus, such an exercise shall be conducted by the Investigating Agency and if charge-sheet is submitted against the petitioners then the Trial Court will consider the same whether there are evidence or not? At this stage of prayer for quashing of the FIR, the only consideration the court should have in mind that whether the contents of the FIR makes out a case for the offence alleged or not? If the contents of the FIR makes out a case, prima-facie, about the commission of the offences alleged therein, the Court shall not interfere in the matter; if the contents thereon are not so patently improbable that a prudent man would not believe the same then the application should not be entertained. This is not a case where we can come to the conclusion that the allegations made are inherently improbable. The contention raised is that the incident took place on 25.10.2022 and the FIR has been lodged on 03.12.2022, therefore, there is a delay of about 1 month 8 days. However, the delay in lodging the FIR is not a good ground for quashing the FIR and moreover, in case of this nature a complainant, who is a victim of sexual assault, may not immediately rushed to the police station. 6. This Court finds that there is no merit in the writ application. The writ application is, therefore, dismissed in limine.