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2024 DIGILAW 650 (ALL)

Piyush Saxena v. State of U. P.

2024-02-29

MAYANK KUMAR JAIN

body2024
JUDGMENT : Mayank Kumar Jain, J. 1. As both the applications are arising out of same crime number, therefore, they are being decided by this common judgment. 2. Heard Sri Vivek Kumar Shukla, learned counsel for the applicants, Sri Sunil Kumar, learned counsel for the informant in application U/S 482 No. 16827 of 2022 and Sri Sunil Kumar, learned counsel for the applicant, Sri Ramesh Kumar Shukla, learned counsel for the opposite party nos. 2 to 4 in application U/S 482 No. 34641 of 2023 and learned AGA for the State. 3. Perused the record. 4. Application under Section 482 Cr.P.C. No. 16827 of 2022 has been filed for quashing the summoning order dated 07.10.2021, cognizance order dated 07.10.2021 passed by the Chief Judicial Magistrate, Gautam Buddh Nagar, charge sheet dated 21.08.2021 and entire criminal proceeding of Case No. 25825 of 2021 (State Vs. Piyush Saxena and others) arising out of case crime no. 820/2020 under Sections 323, 504, 506, 498A, 377 I.P.C & Sections 3 & 4 of Dowry Prohibition Act, P.S. Bisrakh, District Gautam Buddh Nagar pending before the Court of Chief Judicial Magistrate, Gautam Buddh Nagar. 5. Application under Section 482 Cr.P.C. No. 34641 of 2023 has been filed to expedite the hearing and for disposal of pending Criminal Case No. 25825 of 2021 (State Vs. Piyush Saxena and others) arising out of case crime no. 820/2020 under Sections 323, 504, 506, 498A, 377 I.P.C & Sections 3 & 4 of Dowry Prohibition Act, P.S. Bisrakh, District Gautam Buddh Nagar pending before the Court of Chief Judicial Magistrate, Gautam Buddh Nagar and to decide the same in most expeditiously manner on day to day basis within a period of two months or within such stipulated period. 6. The informant Akansha Srivastava lodged an F.I.R. under Sections 498A, 323, 504, 506, 377 of I.P.C and Sections 3 and 4 of Dowry Prohibition Act against the applicants. Applicant no.1 is the husband, applicant no.2 is the father-in-law and applicant no.3 is her mother-in-law. 7. Brief facts of the complaint are summarised as under: – (a) Marriage of Akanksha (opposite party no.2) was solemnized with applicant no. 1 Piyush Saxena on 31.01.2020. Her parents incurred expense of around Rs. 18 lakhs in the marriage. After 5-6 days of the marriage, the applicants started harassing her to fulfil the demand of Rs.4 to 5 lakhs and a big car. 1 Piyush Saxena on 31.01.2020. Her parents incurred expense of around Rs. 18 lakhs in the marriage. After 5-6 days of the marriage, the applicants started harassing her to fulfil the demand of Rs.4 to 5 lakhs and a big car. She was physically and mentally harassed by the applicants regularly for such demand. (b) Applicant no.1 after administering her sleeping pills, inserted a bottle of perfume and a candle into the private part of the informant. Applicant no.1 used to commit unnatural sex with the informant. (c) Applicant no. 2, compelled her to take some medicines so that she could not become a mother. These medicines were not prescribed by the Doctor. When the informant objected, she was threatened by the applicants. Applicant no.1 was always involved in immoral activities. Applicant nos. 2 and 3 concealed physical infirmity of applicant no. 1 and got him married to the informant. 8. On the basis of the aforesaid FIR, Case Crime No.820 of 2020 was registered at P.S. Bisrakh, under Sections 498-A, 323, 504, 506, 377 IPC and Sections 3 and 4 of Dowry Prohibition Act. 9. After the investigation a charge sheet came to be filed against the applicants under Sections 323, 504, 506, 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act. 10. At the stage of cognizance, the informant moved an application before the Chief Judicial Magistrate, Gautam Buddh Nagar stating that the Investigating Officer did not submit chargesheet under Section 377 IPC against applicant no.1 whereas on the basis of the statement given by the informant and other witnesses involvement of applicant no.1 under Section 377 of IPC was made out. The Investigating Officer deleted Section 377 IPC on the ground that the informant refused to undergo internal and external medical examination. 11. Learned trial Court vide impugned order dated 07.10.2021 took cognizance under Sections 323, 504, 506, 498-A, 377 of IPC and Sections 3 and 4 of Dowry Prohibition Act against applicant no.1. Further, the learned trial Court took cognizance under Sections 323, 504, 506, 498-A, IPC and Sections 3 and 4 of Dowry Prohibition Act against applicant nos.2 and 3. 12. Sri Vivek Shukla, learned counsel appearing on behalf of the applicants vehemently argued that no offence under Section 377 I.P.C was found to be made against applicant no. 1 during the investigation. 12. Sri Vivek Shukla, learned counsel appearing on behalf of the applicants vehemently argued that no offence under Section 377 I.P.C was found to be made against applicant no. 1 during the investigation. Therefore, the Investigating Officer did not submit charge sheet under Section 377 I.P.C against him. There was no evidence on record which could indicate that applicant no. 1 committed offence under Section 377 I.P.C. 13. Applicant no. 2 is a retired employee from State Bank of India. Applicant nos. 2 and 3 are old, aged about 67 and 64 years respectively and suffering from old age ailments. The applicants never made any demand of dowry or never treated her with cruelty for such demand. 14. Learned Counsel for the applicants submitted that there was no occasion for the trial Court to take cognizance under Section 377 IPC on the basis of an application given by the informant. The informant had no right to move such application before the trial Court to take cognizance under Section 377 I.P.C. 15. It is submitted that the allegations under Section 377 I.P.C were not supported with any medical evidence. The informant refused to undergo internal and external medical examination. The allegations levelled by the informant in her FIR pertaining to Section 377 IPC are itself belied since she refused to undergo medical examination. The learned trial Court committed irregularity in taking cognizance against applicant no. 1 under Section 377 I.P.C. 16. Learned counsel for the applicants also submitted that general allegations were made against all the applicants in the F.I.R by informant. No specific allegation was made against applicant nos.2 and 3. 17. Learned counsel for the applicants relied upon the following Judgments of the Hon’ble Apex Court:- (a) Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar, in Criminal Appeal No. 195 of 2022 (arising out of S.L.P. (Crl.) No. 6545 of 2020). (b) State of Gujarat Vs. Girish Radhakrishnan Varde, in Criminal Appeal No. 1996 of 2013 (arising out of SLP (Crl.) 734/2012) 18. Learned counsel for the applicants also submitted that while passing the impugned order, the learned trial Court did not accord an opportunity of hearing to the applicants. The applicants were entitled for an opportunity of hearing against the application moved by the informant. 19. Per contra, Sri Sunil Kumar, the learned counsel for opposite party no. Learned counsel for the applicants also submitted that while passing the impugned order, the learned trial Court did not accord an opportunity of hearing to the applicants. The applicants were entitled for an opportunity of hearing against the application moved by the informant. 19. Per contra, Sri Sunil Kumar, the learned counsel for opposite party no. 2 vehemently argued that the informant in her statement under Section 161 Cr.P.C. consistently supported the version of the F.I.R. Besides this, witness such as Ashok Kumar, father of opposite party no. 2, also supported the version of the F.I.R. Statement of opposite party no.2 was recorded under Section 164 Cr.P.C. She elaborately stated the version of the prosecution during her statement. She made specific allegation against applicant no.1 with regard to commission of the offence under section 377 IPC. 20. Learned counsel for opposite party no.2 vehemently argued that the trial Court has ample power to take cognizance on the basis of material available on record before passing a cognizance order. He referred the provisions contained in Section 173(2) Cr.P.C. and Sections 191 (b) & 191 (c) Cr.P.C. and submitted that there is no stage of pre cognizance before the trial Court. Cognizance is always taken after receiving the police report or on the basis of a complaint. It is also submitted that the applicants did not assail the impugned order. 21. He further submitted that applicant no. 1 applied for anticipatory bail, but it was rejected by the trial Court as well as by this Court. Process under Sections 82 and 83 Cr.P.C are issued against him. The applicants concealed these facts from the Court while filing the present application. 22. It is also submitted that under the orders of this Court the matter was referred to the Mediation Centre, but it could not materialize. The applicants failed to demonstrate that there is any irregularity in the impugned order. 23. It is further submitted that the applicants did not point out any lacuna in the investigation. The applicant also failed to establish under which category of State of Haryana Vs. Bhajanlal, [1992 Supp (1) SCC 335] their case is covered. 24. Learned counsel for opposite party no. 2 submitted that the accused has no locus standi to be heard at the stage of cognizance. Taking cognizance on the basis of charge sheet is a matter between prosecution and the Court. Bhajanlal, [1992 Supp (1) SCC 335] their case is covered. 24. Learned counsel for opposite party no. 2 submitted that the accused has no locus standi to be heard at the stage of cognizance. Taking cognizance on the basis of charge sheet is a matter between prosecution and the Court. The informant is prosecutrix. Therefore, she moved an application before the learned Court at the time of taking cognizance. The Court is not obliged to afford an opportunity of hearing to the accused as they did not put their appearance by that time. After taking cognizance, process were issued to ensure the appearance of the accused. 25. Sri Sunil Kumar, learned counsel for applicant in application U/S 482 no. 34641 of 2023 submitted that the trial is pending since 2020. Mediation between the parties stands failed. The opposite party is enjoying protection of this Court passed in application U/S No. 16827 of 2022 vide order dated 6.7.2022. Therefore, the learned trial Court may be directed to expedite the trial and to conclude it within a stipulated time. As a result of non-cooperation by the applicants no substantial progress could take place before the trial Court. Proceedings of mediation did not succeed because of non-cooperation of applicants. 26. Section 173 (2) Cr.P.C provides thus : 2 (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (h) [Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 16 (b).]] [or section 376E of the Indian Penal Code of the Indian Penal Code, 1860.] [Substituted for the words "or 376D of the Indian Penal Code" by Criminal Law (Amendment) Act, 2013] (ii)The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.” 27. Given the above, after the conclusion of the investigation, the Investigating Officer shall forward it to the Magistrate who is empowered to take cognizance of the offence on the police report. It may be noted that present proceedings have been initiated on the basis of the F.I.R. 28. Section 190 (1) Cr.P.C. enlists how the Magistrate can take cognizance of offences:- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. 29. Section 377 I.P.C provides thus:- “377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 30. Opposite party no. 2, the informant had made certain allegations relating to the commission of offence under Section 377 of I.P.C. against her husband Piyush Saxena, applicant no. 1. During her statement under Section 161 Cr.P.C, opposite party no. 2 supported the allegation made by her in the F.I.R relating to commission of offence under Section 377 I.P.C. Ashok Kumar, who happens to be the father of the informant, has also narrated to the Investigating Officer that his daughter informed him about committing unnatural sex by applicant no. 1. During her statement under Section 161 Cr.P.C, opposite party no. 2 supported the allegation made by her in the F.I.R relating to commission of offence under Section 377 I.P.C. Ashok Kumar, who happens to be the father of the informant, has also narrated to the Investigating Officer that his daughter informed him about committing unnatural sex by applicant no. 1. It relates to commission of offence under Section 377 I.P.C. During her statement under Section 164 Cr.P.C, informant Akansha Saxena reiterated her allegations which prima-facie constitute the commission of offence under Section 377 of I.P.C against her husband Piyush Saxena. 31. In the case on hand, the charge sheet came to be filed against the applicants under Sections 498A, 323, 504, 506 I.P.C and Sections 3 and 4 Dowry Prohibition Act. During the investigation, the Investigating Officer concluded that the allegation under Section 377 I.P.C was unfounded against applicant no. 1. Therefore, the Investigating Officer deleted section 377 IPC merely on the basis of statement of some independent witness while deleting such sections, he also took into consideration the fact that the informant refused to undergo for internal medical examination. The Investigating Officer completely ignored the allegations made in the FIR, her statement under Section 161 and 164 Cr.P.C. Statement of the father namely Ashok Kumar was also not taken into consideration by the Investigating Officer. 32. Under Section 190 Cr.P.C, the cognizance is always taken by a Magistrate for an offence. The Magistrate is empowered to consider the material placed before him at the time of taking cognizance. Perusal of the impugned order reveals that the learned Magistrate had considered the fact of the matter including the statement of the witnesses for prosecution recorded under Sections 161 and 164 Cr.P.C. while passing such order. So far as the refusal for internal or external medical examination by the informant is concerned, the learned Magistrate considered this aspect and concluded that since the informant was living in her maternal house for a long period of nine months, there was no possibility to observe any internal or external injury on her person. Mere non-existence of any injury could not rule out commission of an offence under Section 377 IPC. 33. Mere non-existence of any injury could not rule out commission of an offence under Section 377 IPC. 33. In view of the above, it is concluded that the learned Magistrate while taking cognizance based upon police report has ample power to consider material available on record and take cognizance of the offence in accordance with the law. 34. In the present case, the learned Magistrate, after hearing the prosecution, arrived at the conclusion that on the basis of evidence collected by the Investigating Officer, prima-facie, case under Section 377 I.P.C was made out against applicant no. 1. Therefore, he took cognizance under Section 377 I.P.C in addition to the other sections mentioned in the charge sheet. This Court does not find any irregularity in the impugned order passed by the learned Chief Judicial Magistrate, Gautam Buddh Nagar. Therefore, application U/S 482 No. 16827 of 2022 is devoid of merits and liable to be rejected. 35. Accordingly, application U/S 482 No. 16827 of 2022 is hereby rejected. 36. So far as the prayer for expeditious disposal made in application U/S 482 No. 34641 of 2023 is concerned, it is not opposed by learned counsel for opposite party no. 2. 37. The trial Court is directed to expedite the trial in accordance with law without granting unnecessary adjournment to either of the parties and to decide the case expeditiously. 38. Accordingly, application U/S 482 No. 34641 of 2023 is disposed off.