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2024 DIGILAW 53 (ALL)

Shishir Gupta v. State of U. P.

2024-01-05

MAYANK KUMAR JAIN

body2024
JUDGMENT : (Mayank Kumar Jain, J.) : 1. Heard Sri Ajay Sengar, learned counsel for the applicant, Sri Ajay Singh, learned counsel for the complainant and learned AGA for the State. 2. Present application has been filed by the applicant under Section 482 Cr.P.C. praying for quashing the entire proceedings of Complaint Case No. 0009 of 2023, arising out of Criminal Case No. 0164 of 2023 (Smt. Vibha Prajapati vs. Shishir Gupta & Others) under Sections 376D of IPC and Section 5G/6 of the POCSO Act, 2012, Police Station Kotwali Orai, District Jalaun, pending before the learned Additional District & Sessions Judge/Special Judge (POCSO Act), Jalaun at Orai. 3. Opposite party no. 2 filed a complaint against the applicant and other persons under Sections 328 and 376 of IPC and Section 5/6 of the POCSO Act, 2012 Police Station Kotwali Orai, District Jalaun. 4. The allegations in the complaint are summarised thus: 4.1. The applicant, who was working as a Contractor, opened an office in the name and style of S. K. Enterprises in the house of one R.S. Gupta at Tulsi Nagar, Orai, District Jalaun. Opposite party no. 2 came to know that there was a vacancy of a Clerk and a Stenographer in the office of the applicant. She met the applicant in the year 2015 for such job and was asked to approach after one week. She was offered a job of Clerk in the office of the applicant on monthly payment of Rs. 5000/-. 4.2. After 15-20 days, the applicant called the complainant at his office at 9:00 PM. When she reached the office at around 8:30 PM, she found the applicant and one Ajit Singh to be present there. She was offered a cup of coffee by the applicant. After consuming it, she lost her senses. When she regained consciousness, she found that there were no cloths on her body. The applicant and Ajit Singh had committed rape with her. 4.3. When the complainant informed that she will file a complaint against them with the police, they showed her an obscene video and threatened to make this video public in case she filed any complaint or told her family about this incident. The applicant and Ajit Singh raped her on several occasions after this, under the pretext of leaking the obscene video. 4.4. The applicant and Ajit Singh raped her on several occasions after this, under the pretext of leaking the obscene video. 4.4. During the nationwide lockdown in 2020, the applicant closed his office at Orai. There was no communication between the applicant and the complainant during 2020 to 2023. In the month of September 2023, the applicant called the complainant and asked her to work with him again, but she refused. The applicant showed some indecent photographs and video to her and threatened to make these photos and video public in Orai and send it to her family members if she does not accompany him. 4.5. She became very frightened. She was taken to an unknown house by the applicant where Sardar Ajit Singh was already present. They raped her without her consent. Thereafter they took her in the car and after some distance removed her and left from there saying that they have opened their office in Noida. She has to come there whenever called otherwise she would have to face serious consequences. Firoz Khan and Ghanshyam were passing from there at that time. Upon enquiring with her, she narrated the entire incident to them. 5. Sri Ajay Sengar, Learned counsel for the applicant submitted that : 5.1. One Ritesh Gupta, resident of Madhya Pradesh is also a Railway Contractor and has business rivalry with the applicant. He felt enemity with the applicant. He planned to implicate the applicant in this heinous crime. The complainant is managed by the gang of false criminal litigations. 5.2. After recording the statement of the complainant under Section 200 of Cr.P.C., the Court concerned directed the Chief Medical Officer, Jalaun by order dated 04.10.2023, to medically examine her and submit his report. But the complainant refused to undergo internal and external medical examination on 18.10.2023. The Chief Medical Officer, Jalaun submitted his report to the Court concerned about the refusal made by the complainant on 20.10.2023. 5.3. The complainant produced her medical report before the Court concerned on 7.11.2023, stating that she could not get herself medically examined earlier because she was under mensuration period and one month had passed since the alleged occurance so she did not undergo medical examination. She was also hospitalised from 7.10.2023 and 8.10.2023. 5.4. Two witnesses produced and mentioned by the complainant in her complaint, did not disclose any date, time and place of occurrence. She was also hospitalised from 7.10.2023 and 8.10.2023. 5.4. Two witnesses produced and mentioned by the complainant in her complaint, did not disclose any date, time and place of occurrence. They also did not state anything about the knowledge of the business and status of the applicant. 5.5. Both the witnesses are chance witnesses and the Learned Court concerned did not make any attempt to examine their veracity and, therefore, their evidence cannot be relied upon. Moreover, PW-2-Divesh Diwaker stated that the entire incident was narrated to him by the complainant herself. 5.6. The complaint was filed on 30.09.2023. A medical report dated 12.09.2023 i.e. prior to the date of filing of the complaint, was filed by the complainant subsequently. This medical report was prepared at Jhansi and the complications referred to in the said report do not corroborate the version of rape with the complainant. Moreover, the complainant did not give any reference of her medical examination dated 12.09.2023 in her complaint. Therefore, there was no medical evidence on record which could demonstrate that the complainant was raped by the applicant. 5.7. Though the complainant stated that since 2015, the applicant had committed rape with her, she did not raise any alarm and did not make any complaint thereto to any of the authority or to her family members. She remained silent about the incident. 5.8. Learned Court concerned before passing the summoning order did not examine the matter under Section 202(1) of Cr.P.C. that the applicant was residing beyond its jurisdiction. 5.9. There is no evidence in the form of video clip, mobile clip or any photograph which could demonstrate that the applicant committed rape with the complainant, as alleged. No date, time and place of occurrence had been mentioned by the complainant although it is alleged that the applicant continued to rape her for over a period of more than five years. 5.10. The applicant never resided at Orai. He does not know co-accused Sardar Ajit Singh as he is a resident of District Faizabad. 6. To buttress his arguments, learned counsel for the applicant relied upon the judgments of the Supreme Court in Pepsi Foods Ltc. 5.10. The applicant never resided at Orai. He does not know co-accused Sardar Ajit Singh as he is a resident of District Faizabad. 6. To buttress his arguments, learned counsel for the applicant relied upon the judgments of the Supreme Court in Pepsi Foods Ltc. and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 and National Bank of Oman vs. Barakara Abdul Aziz and Another, (2013) 2 SCC 488 and a judgment of this Court in Chhote Lal vs. State of UP & Another (Application u/s 482 No. 39702 of 2017, decided on 18.04.2019). 7. It is also submitted by learned counsel for the applicant that the turnover of the applicant is in crores and his total income assessed under the Income-tax is Rs. 3,35,87,780/- in the Assessment Year 2023-24. The applicant had paid income tax of Rs. 1,05,92,058/- on this income. It is also submitted that this is also one of the reasons to falsely implicate the applicant in this case to fetch money from him. 8. Per contra, learned AGA and learned counsel for the complainant submitted that: 8.1. The complainant does not know any Ritesh Gupta, as alleged by the applicant. Therefore, the allegations made by the applicant are incorrect. The fact of the case and the evidence adduced by the complainant and the witnesses are subject to trial. The Court will arrive at a rightful conclusion only on the basis of evidence produced by the complainant during the trial. It is also stated that at this stage, the defence of the applicant cannot be taken into consideration. 8.2. The complainant during her statement under Section 200 of Cr.P.C., consistently corroborated the facts of the incident. Apart from her, two witnesses, who were passing through the area where the applicant left her after committing her rape, have also during their statement under Section 202 Cr.P.C. corroborated the case of the complainant. 8.3. PW-1-Ghanshyam, during his statement under Section 202 Cr.P.C. stated that two persons dropped a girl from their Car and threatened her. He enquired from the complainant what happened. She informed that two persons, namely, the applicant-Shishir Gupta and another person, Ajit Singh had committed rape with her. Prior to this also, they had committed rape with her at several times. 8.4. The same statement was given by another witness, namely, PW-2 Divesh Diwaker. He enquired from the complainant what happened. She informed that two persons, namely, the applicant-Shishir Gupta and another person, Ajit Singh had committed rape with her. Prior to this also, they had committed rape with her at several times. 8.4. The same statement was given by another witness, namely, PW-2 Divesh Diwaker. There is no denial of statements of the complainant and the witnesses by the applicant. 8.5. The medical report produced by the complainant before the learned Court concerned is not fabricated as the medical report had been issued by the Government Hospital. 9. There is an allegation against the applicant that in the year 2015, he provided a job to the complainant in his office. After 15-20 days, lured her in his office on pretext of some official work. He offered a cup of coffee to her with some intoxicated substance. She lost her senses after consuming that coffee. When she regained consciousness, she found herself naked. She apprehended that the applicant and another accused had committed rape with her. When the complainant informed them that she will file a complaint against them, they showed her an obscene video and threatended her that if any complaint is lodged with the police or if she informed her family about the incident, they would make the video public. Under the threat of this video, the applicant and another person continued to rape her several times later. 10. In September 2023, the applicant called the complainant to work with him again but she refused. The applicant then showed some indecent photographs and video and threatened her that if she would not come with him, he would make the photographs and video public in Orai and would also send them to her family. 11. She got frightened. She was taken to an unknown house by the applicant where Sardar Ajit Singh was already present. They raped her without her consent. They took her in a car and after some distance removed her and left her there. Firoz Khan and Ghanshyam were passing from there at that time. Upon enquiring, she narrated the entire incident to them. 12. The Hon’ble Supreme Court in Pramod Suryabhan Pawar VS State of Maharashtra and another, (2019) 9 SCC 608 has considered the principles, scope, and ambit of the powers of the Court under Section 482 Cr.P.C. and held that : 6. Upon enquiring, she narrated the entire incident to them. 12. The Hon’ble Supreme Court in Pramod Suryabhan Pawar VS State of Maharashtra and another, (2019) 9 SCC 608 has considered the principles, scope, and ambit of the powers of the Court under Section 482 Cr.P.C. and held that : 6. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and reiterated by this Court. In Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , this Court observed : (SCC p. 10, paras 23-24): “23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of the court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.” 7. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.” 7. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] noted that quashing may be appropriate where: (SCC pp. 378-79, para 102) “102. … (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2). *** (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.” 8. In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : 2018 SCC OnLine SC 3100] , (Dhruvaram Sonar) : (SCC para 13) “13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers.” 13. In Pepsi Foods Ltd. And Another vs. Special Judicial Magistrate And Other (supra), the Apex Court observed in paragraph 28, as under: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 14. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 14. In National Bank of Oman vs. Barakara Abdul Aziz And Another (supra), the Apex Court, further explaining the text, observed as under in paragraphs 9: “9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.” 15. In Birla Corporation Limited vs. Adventz Investments and Holdings Limited & Others, 2019 AIR (SC) 2390, the Apex Court observed as under: 31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. 32. By Cr. 32. By Cr. P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words “…and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction…” were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:- “False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” 33. Considering the scope of amendment to Section 202 Cr.P.C. in Vijay Dhanuka and Others vs. Najima Mamtaj and Others, (2014) 14 SCC 638 , it was held as under:- “12. ….The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 and National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488 .” 16. An order passed by the Court, summoning the accused to face trial, must reflect that it has applied its mind to the facts of the case and the law applicable thereto. The Court cannot act merely because a complaint had been made and two witnesses in support of the allegations are produced before it. It has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and whether that would be sufficient for the complainant to succeed in bringing home charge against the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 17. Perusal of the impugned summoning order goes to show that considering the material evidence as available on record, the Learned Court opined that there was sufficient prima facie evidence about the commission of the crime by the applicant as alleged by the complainant in her complaint. The Court therefore summoned the applicant to face the trial. 18. 17. Perusal of the impugned summoning order goes to show that considering the material evidence as available on record, the Learned Court opined that there was sufficient prima facie evidence about the commission of the crime by the applicant as alleged by the complainant in her complaint. The Court therefore summoned the applicant to face the trial. 18. The Learned Court completely lost sight of the fact that no date and time of incident were mentioned by the complainant. She made allegations that she was subjected to rape by the applicant and another accused for a long period, i.e. from 2015 to 2020 and in the year 2023. But she did not mention the date and time of any of such incidents in her complaint. The witnesses of the complainant stated before the court merely on the basis of the information given by the complainant. 19. While passing the impugned order, the Learned Court completely ignored the fact that no refrence of the medical report (paper no. 18 kha) was made by the complainant in her complaint. This certificate was issued by District Male Hospital, Jhansi on 12.09.2023. In this medical certificate, no injury on the person of the complainant was found which can demonstrate that she was subjected to gang rape. Pertinent to note that the Court concerned, after recording the statement of the complainant under section 200 Cr.P.C., directed the Chief Medical Officer, Jalaun at Orai to conduct medical examination of the complainant, but she refused to undergo for her medical examination. She stated before the Medical Officer that she does not want to get her internal and external medical examination done. There was no pressure upon her to not get her medical examination done. 20. Thereafter, she moved an application before the Court concerned stating therein that when she appeared before the medical officer Orai for her medical examination, she was undergoing monthly menstruation cycle and since a month had passed since the date of the incident, therefore she she did not consent to get her medical examination done. This fact was not informed by her to the Medical Officer. 21. In the absence of any medical evidence to corroborate the allegations made by the complainant, the Court erroneously arrived at a conclusion that, prima facie, there was evidence of committing gang rape by the applicant and other accused person with the complainant. 22. This fact was not informed by her to the Medical Officer. 21. In the absence of any medical evidence to corroborate the allegations made by the complainant, the Court erroneously arrived at a conclusion that, prima facie, there was evidence of committing gang rape by the applicant and other accused person with the complainant. 22. The Learned Court also failed to conduct an enquiry under Section 202(1) of Cr.P.C. to examine the veracity of prosecution witnesses. Since the applicant is a resident of District Ghaziabad and his address of Ghaziabad was also mentioned by the complainant in her complaint, therefore, to ascertain whether the concerned Court has jurisdiction to entertain the complaint, an enquiry under Section 202(1) of Cr.P.C. was mandatory to be conducted by the court. 23. It is also noteworthy that as with regard to the allegation made by the complainant that she was subjected to rape by the applicant for a long duration (i.e. from 2015 to 2020 and in September 2023), she neither raised any alarm to that effect nor informed her parents or other family members. She never approached the local authorities to file a complaint about it. Therefore, it appears that only for the purpose of harassing the applicant, false and concocted allegations are levelled against him by the complainant. 24. In view of the discussion made above, the application is partly allowed. Summoning order dated 10.11.2023 under Section 376D IPC and 5G/6 POCSO Act, 2012 passed by Additional District and Sessions Judge/Special Judge, Jalaun at Orai in Complaint Case No.0009 of 2023 arising out of criminal case no.0164 of 2023 (Smt. Vibha Prajapati Vs Shishir Gupta and others) to the extent it summons the applicant is hereby set aside. 25. No order as to cost. 26. It is made clear that by this order, summoning of non-applicant Sardar Ajit Singh, who is also an accused and have been summoned, has not been set aside.