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2024 DIGILAW 1869 (ALL)

Tejbir Gulati v. State of Uttar Pradesh

2024-08-09

MANJU RANI CHAUHAN

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JUDGMENT : Manju Rani Chauhan, J. 1. De-link the Application U/S 482 No. 16593 of 2019 (Tejbir Gulati Vs. State of Uttar Pradesh and another) from the present application. 2. Heard Mr. Sudeep Harkauli, learned counsel for the applicant, Mr. Sunil Kumar Dubey, learned counsel for the opposite party no. 2 and Mr. Amit Singh Chauhan, learned AGA-I for the State 3. This application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 20.02.2021 passed by Additional Sessions Judge/Fast Track Court-I, Ghaziabad in Criminal Revision No. 176/2019 under Sections 498A, 323, 504, 506, 354, 307, 406, 376, 511 IPC & 3/4 D.P. Act, P.S. Mahila Thana, District Ghaziabad. 4. Brief facts of the case are that an FIR was lodged by Navneet Kumar-opposite party no. 2 against the applicant (husband) and other family members on 17.08.2018 with the allegations that the opposite party no. 2 was mentally and physically harassed for additional dowry demand by the applicant as well as other family members. It has been further alleged that opposite party no. 2 was married with the applicant on 30.05.2003 according to Hindu rites and rituals. The family of the opposite party no. 2 gave dowry and gifts as per their capacity, which included jewellery, expensive clothes and other household items as well as cash, all the aforesaid jewellery and other expensive items were handed over to the applicant and his family members and they have the possession of the same till date. The applicant and his family members did not like the gifts and expensive items including jewellery as given by parents of opposite party no. 2, thus they started pestering and harassing the opposite party no. 2. The opposite party no. 2 tolerated the aforesaid conduct of applicant and his family members thinking that with passage of time there will be some change in their attitude. Things did not change with passage of time and the applicant and his family members started demanding additional dowry for which she was mentally and physically harassed in every manner. They also threatened her for life in case of non-fulfilment of the additional dowry demand as raised by them. The other allegations are detailed in the FIR. 5. After investigation final report was submitted on 05.02.2019, the opposite party no. 2 filed protest petition which has been rejected by order dated 08.03.2019, thus accepting final report dated 05.02.2019. They also threatened her for life in case of non-fulfilment of the additional dowry demand as raised by them. The other allegations are detailed in the FIR. 5. After investigation final report was submitted on 05.02.2019, the opposite party no. 2 filed protest petition which has been rejected by order dated 08.03.2019, thus accepting final report dated 05.02.2019. Against the aforesaid order a revision was filed, the same has been allowed by order dated 20.02.2021 by setting aside the order dated 08.03.2019 and the matter has been remanded back to be heard afresh, hence the present petition has been filed. 6. Learned counsel for the applicant submits that the order impugned dated 20.02.2021 allowing the revision filed by opposite party no. 2 is arbitrary and contradictory to the record available before the court below. 7. The court of ACJM, Ghaziabad while rejecting the protest petition and accepting the final report has passed a detailed order coming to a conclusion that the incident of attempting to rape is said to be of 08:30 at the residence of accused and a medical report has also been placed in this regard. However the mobile location of opposite party no. 2 is different from accused Jaspreet Gulati, Mohanveer Gulati and Rishabh Gulati, thus it shows that the opposite party no. 2 was not present at the place of incident, hence, the incident as recorded appears to be doubtful. But the revisional court has committed a manifest error of law while allowing the revision not considering the final report dated 05.02.2019 as well as detailed order dated 08.03.2019 in which the entire evidences have been considered. 8. The revisional court has committed error in ignoring the other evidences and only on the basis of plea of alibi, has allowed the revision in a mechanical manner without application of judicial mind. The final report has been submitted by the investigating officer as on the basis of mobile location as alleged accused was not found at the spot at the time of incident. 9. The revisional court has wrongly come to a conclusion that the final report was filed considering plea of alibi of the applicant but the investigation revealed that the incident did not take place and the opposite party no. 2 herself was not present at the place of incident at the relevant point of time. 10. 9. The revisional court has wrongly come to a conclusion that the final report was filed considering plea of alibi of the applicant but the investigation revealed that the incident did not take place and the opposite party no. 2 herself was not present at the place of incident at the relevant point of time. 10. Learned counsel for the applicant further submits that finding recorded by the learned revisional court that applicant has stated that opposite party no.2 has physically abused him and filed a medical certificate is incorrect, as there is nothing in the case diary or evidence as collected by Investigating Officer to prove the same. The case diary does not contain any other statement or document on the basis of which revisional court has recorded such finding, thus the same is against the facts and evidence on record. Therefore, the continuance of proceedings amounts to abuse of process of law and the same may be quashed. 11. Learned AGA on the other hand submits that the impugned order passed by revisional court is justified as by the aforesaid order the matter has been remitted back to be heard afresh. Thus, there is no illegality or infirmity in the aforesaid order. 12. The revisional court has passed a detailed order discussing each issue on which the court below has passed order dated 08.03.2019 accepting the final report. The revisional court, on the issue of no supporting evidence being given by victim to prove her statement as recorded u/s 164 has observed that the statement of victim recorded u/s 161 and 164 Cr.P.C. which is supported by subsequent investigation and statement of other witnesses namely Devendra Kaur, Gaganpreet and Amarjeet and others, is on record and the same has not been taken into consideration by the court below while accepting final report. 13. It has further been held that the statement of victim can be the sole basis of conviction if the same is trustworthy and reliable and is sufficient for holding the accused guilty. It is next submitted that the investigating officer while submitting the final report and the learned lower court while accepting final report has considered the plea of alibi of accused and opposite party no. 2 at the time of incident, whereas the same should have been considered during the continuation of trial and at a proper stage. It is next submitted that the investigating officer while submitting the final report and the learned lower court while accepting final report has considered the plea of alibi of accused and opposite party no. 2 at the time of incident, whereas the same should have been considered during the continuation of trial and at a proper stage. It is also submitted the fact that CDR report cannot be taken as a conclusive proof of presence of a person at the time and place of incident, and this fact has been ignored by court below while accepting the final report. The location of mobile cannot be taken as a location of a person at the time and place of incident. 14. The court below has not considered the fact that the accused himself has stated to have been assaulted by the victim-opposite party no.2 and has submitted medical papers to prove the same which itself discloses that both were present together at the time of incident, hence prove the incident. 15. From the case diary it is clear that prior to FR No.2/210/18 dated 05.02.2019 an FR No.1/2018 dated 27.09.2018 was submitted which was challenged by way of protest application praying for investigation, which was allowed. Thus, rejecting FR and order dated 14.01.2019 was passed for further investigation by Additional C.J.M., Court No.2, Ghaziabad – SCD – I dated 17.01.2019. 16. Subsequently vide parcha SCD-III dated 05.02.2019 Majeed statement of accused Tejbir Gulati was recorded in which he has stated the version mentioned in the order of revisional Court. 17. Lastly, the lower court while passing the order dated 05.02.2019 has not considered and discussed the evidentiary value of medical as placed on record. Thus on the aforesaid grounds wherein detailed discussion on every issue has been done by the revisional court there is no illegality and infirmity in the order impugned passed by revisional court dated 20.02.2021 as the detailed reasons for remanding back the matter on issues which have not been discussed by the court below have been given by the revisional court while setting aside the order dated 05.02.2019 and remanding the matter to be heard afresh. 18. Learned AGA submits that the importance of statement of the victim recorded u/s 164 Cr.P.C. has been evaluated by the revisional court which has not been the case of the lower court while passing the order dated 05.02.2019. 18. Learned AGA submits that the importance of statement of the victim recorded u/s 164 Cr.P.C. has been evaluated by the revisional court which has not been the case of the lower court while passing the order dated 05.02.2019. The role of section 164 Cr.P.C. in rape cases holds significant implication for judicial process for both victim and accused. Rape is a grave offence that demands balance between securing justice for victim and safeguarding the right of the accused. The question remains whether an accused can be convicted solely on the basis of statement recorded u/s 164 Cr.P.C. or not. 19. The Hon'ble Apex Court in case of Mohd. Imran Khan Vs. State Government (NCT Of Delhi) (2011) 10 Supreme Court Cases 192, while discussing the sole testimony of prosecutrix held as follows:- "22. It is is triet law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 (hereinafter called "the Evidence Act"), nowhere says that her evidence cannot be accepted unless it s corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more." 20. In another case of Moti Lal Vs. State of M.P., reported in 2008(11) SCC 20 , the learned single Judge while discussing the importance of sole testimony of prosecutrix taken by means of statement under section 164 Cr.P.C., said that the court must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. It has further observed that rape is not merely a physical assault, it is often destructive of the whole personality of the victim. Thus while dealing with rape cases court shoulders a great responsibility and must deal with such cases with utmost sensitivity. It has further observed that rape is not merely a physical assault, it is often destructive of the whole personality of the victim. Thus while dealing with rape cases court shoulders a great responsibility and must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature, to throw out an otherwise reliable prosecution case. Thus the single judge in the aforesaid case has held as follows:- "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice." 21. The Apex Court in the case of Santosh Prasad Vs. State of Bihar, AIR 2020 SC 985 , has talked about corroboration of victim’s statement and gave benefit of doubt to the accused. Similarly, there are several other precedents which create a complex situation and, hence, it is evident that no single approach can be applied to all cases. It is clear that there is need to strike a balance between the right of the victim and that of accused for which fair adjudication is needed through trial and the rights of both parties are upheld and justice is served without compromising the fundamental principles of fairness and due process. 22. The court in few cases has held that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 23. It has further been submitted that as regards the observation made by the revisional Court with respect to medical papers, which have been ignored, the same which in context of the object of provision of revision which is to set right a patent defect or an error of jurisdiction or law. 23. It has further been submitted that as regards the observation made by the revisional Court with respect to medical papers, which have been ignored, the same which in context of the object of provision of revision which is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which may be scrutinized and the revisional court is vested with the power to call for and examine the records if an inferior court for the purpose of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of provision of Section 397 of the Code is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. 24. Looking into various judgements passed by the Courts, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The same has been held in the Apex Court judgement passed in case of Amit Kapoor Vs. Ramesh Chander And Another, (2012) 9 SCC 460 and another judgement of Apex Court in case of Girish Kumar Suneja Vs. CBI, AIR 2017 SC 3620 . It has been further held in the case of Girish Kumar Suneja (supra) that prohibits interference in respect of interlocutory orders and Section 482 cannot be availed of to achieve the same objective. 25. The aforesaid has been held in the case of Krishan Kumar Malik Vs. State of Haryana, reported in 10 (2011) 7 SCC 130 . Thus in case of Santosh Prasad Vs. State of Bihar, 2020 3 SCC 443 , finding material contradictions in the deposition of prosecutrix not being supported by any independent witness or medical benefit of doubt was given to the alleged accused. State of Haryana, reported in 10 (2011) 7 SCC 130 . Thus in case of Santosh Prasad Vs. State of Bihar, 2020 3 SCC 443 , finding material contradictions in the deposition of prosecutrix not being supported by any independent witness or medical benefit of doubt was given to the alleged accused. From the aforesaid it is clear that no single approach can be applied to all rape cases and the court should analys the situation and strike a balance between right of the victim and the accused for proper and fair adjudication of the matter in order to uphold the rights of both the parties so that justice is served without compromising the fundamental principles of fairness and due process. 26. In the present facts of the case the statement of prosecutrix recorded under section 161 and 164 Cr.P.C. is well supported by statement of other witnesses as well as medical thus was sufficient to be reliable upon by court below for summoning the accused but ignoring the aforesaid final report as submitted by Investigating Officer has been accepted by the court by order dated 05.02.2019. 27. As regards the observation of the revisional Court with respect to "plea of alibi" the same is governed by section 11(1) and section 103 of the Indian Evidence Act. The Court in the case of Binay Kumar Singh Vs. State of Bihar (1997) 1 SCC 283 has held as follows:- "We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant." 28. In the recent judgment passed by division Bench of the Supreme Court in the case of Kamal Prasad and others Vs. The State of Madhya Pradesh 2023 SCC Online SC 1300, the same principle of law has been reiterated and where the plea of alibi has been taken, the same does not lessen the burden of prosecution to prove that the accused was present at the scene of the crime and has participated therein. 29. The State of Madhya Pradesh 2023 SCC Online SC 1300, the same principle of law has been reiterated and where the plea of alibi has been taken, the same does not lessen the burden of prosecution to prove that the accused was present at the scene of the crime and has participated therein. 29. In the present case the admission by the accused about him being assaulted by his wife and medical being placed in support of that, proves that both were present at the time and place of incident together. Thus on the basis of location of mobile, it cannot be said that the person was not present at the time of incident as it is not necessary that the person concerned had carried the mobile alongwith him. 30. Another argument as placed by learned AGA is that section 482 of Cr.P.C. cannot be availed to set aside interlocutory order as Section 397(2) of Cr.P.C. prohibits interference with interlocutory orders. For the aforesaid, the ambit and scope of power which the Courts including the High Court can exercise under Sections 397 and 482 of the Code has to be understood. 31. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. Thus, revisional jurisdiction of high court is a very limited one and cannot be exercised in a routine manner. The aforesaid observations has been made in the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460 . 32. It has further submitted that the order passed by the revisional court is in the nature of interlocutory order and the said term has to be understood in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. The aforesaid has been held in the case of Amar Nath And Others Vs. State of Haryana And Another, 1977 4 SSC 137. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. The aforesaid has been held in the case of Amar Nath And Others Vs. State of Haryana And Another, 1977 4 SSC 137. In the aforesaid judgement, it has also been held that what cannot be done directly cannot be done indirectly, therefore, when Section 397(2) of Cr.P.C. prohibits interference in respect of interlocutory orders, Section 482 of Cr.P.C. cannot be availed of to achieve the same objective. In other words, since Section 397(2) of Cr.P.C. prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 Cr.P.C. to set aside an interlocutory order. 33. The Court in the case of Girish Kumar Suneja v. CBI, 2016 (6) ADR 767, has held that it is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision barring a particular remedy, the Court cannot resort to the exercise of inherent powers. 34. In view of the above, the summoning order dated 20.02.2021 is legal and the same do not suffer from any illegality, perversity or jurisdictional error which may call for any interference by this Court. Hence the prayer made in the present petition is refused. The present petition lacks merit and is accordingly rejected. 35. The Court concerned is directed to proceed in accordance with law and conclude the case as expeditiously as possible.