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2024 DIGILAW 730 (ALL)

Amaan Abbaas @ Asbeg v. State of U. P.

2024-03-07

VIKRAM D.CHAUHAN

body2024
JUDGMENT : 1. Heard applicant-Amaan Abbaas @ Asbeg in person and learned AGA for the State. 2. The present application under Section 482 Cr.P.C. has been filed by the applicant, challenging the charge sheet dated 28th August, 2022, cognizance order as well as summoning order dated 1.10.2022 and entire criminal proceedings of Session Case No.818 of 2022 (State Vs. Shahzad and Amaan Abbas @ Asbeg) arising out of Case Crime No. 304 of 2022, under Sections 452, 504 and 506 of the Indian Penal Code, Police Station – Noorpur, District - Bijnor, pending in the court of Additional District and Session Judge/Special Judge (POCSO Act), Bijnor. 3. Initially, the First Information Report dated 1.7.2022 was registered against three accused-persons including the applicant under Sections 452, 342, 504, 506, 377, 511 IPC and Section 5 and 6 of the POCSO Act. As per First Information Report, occurance is alleged to have been committed between 19.6.2022 to 1.7.2022. The First Information Report was lodged by one Smt Rani. As per allegations in the First Information Report, it is alleged that on 19.5.2022 at about 6:00 p.m. when son of the informant, who is aged about five years, went in the neighbourhood for playing then informant heard the distress call that son of the informant was taken away by co-accused Shahzad and was sexually assaulting the son of informant. When informant reached the spot, she found that the lower clothes of victim were removed and victim was naked and both his hands were tied up. When the informant was going to police station for reporting the incident, neighbourhood person made conciliation between the parties and the aforesaid co-accused accepted his mistake. The aforesaid co-accused Shahzad on several occasion tried to take away the victim and also abused the informant and threatened for life. It is further alleged that on 1.7.2022 also informant and her husband were threatened by co-accused Shahzad and applicant along with co-accused Awkesh came to the house of informant at about 6:00 p.m. and threatened for life to the informant and her husband. 4. The investigation in the present First Information Report was carried on by the Investigating Officer and statement of informant was recorded by Investigating Officer under Section 161 Cr.P.C. As per statement of informant before Investigating Officer, informant has supported the prosecution story. 4. The investigation in the present First Information Report was carried on by the Investigating Officer and statement of informant was recorded by Investigating Officer under Section 161 Cr.P.C. As per statement of informant before Investigating Officer, informant has supported the prosecution story. Insofar as allegation against applicant is concerned in statement under Section 161 Cr.P.C., it is alleged that applicant along with other co-accused have entered into the house of the informant and have abused the informant and her husband and has further threatened that in the event informant prefers any complaint to the police, she would be killed. Thereafter, the First Information Report was lodged by informant. 5. Further, during investigation, statement of victim under Section 161 Cr.P.C. was recorded. Victim has made allegations of sexual assault against co-accused – Shahzad. It is further alleged by victim that applicant along with co-accused have entered into the house of informant and abused the informant and father of victim and had threatened to kill in the event any police complaint is made. The victim was also medically examined on 2.7.2022 at 6:25 p.m. and in the injury report, no injury was seen in the Anus. Further no spermatozoa was seen in forensic examination. 6. The statement of victim under Section 164 Cr.P.C. was recorded before the court concerned. In the aforesaid statement, no allegation was made by victim against applicant. The victim has not taken the name of applicant in his statement under Section 164 Cr.P.C.before the court concerned. 7. The Investigating Officer has come to the conclusion that applicant’s presence at the location was not found on the basis of CDR and has stated that there is no evidence in respect of complicity of applicant in the alleged crime. The relevant extract of case diary in this respect is filed at page 38 of the paper book. Thereafter, on 28.8.2022, Investigating Officer has submitted charge sheet before the court concerned. In the charge sheet, applicant is prosecuted under Section 452, 504 and 506 of the Indian Penal Code. A perusal of the aforesaid charge sheet would demonstrate that it records that during investigation, complicity of applicant in the alleged crime was not found, however, despite the aforesaid averment, Investigating Officer has submitted charge sheet against applicant under the above-mentioned sections of the Indian penal code. A perusal of the aforesaid charge sheet would demonstrate that it records that during investigation, complicity of applicant in the alleged crime was not found, however, despite the aforesaid averment, Investigating Officer has submitted charge sheet against applicant under the above-mentioned sections of the Indian penal code. The court concerned, thereafter, has taken cognizance on the chargesheet submitted by Investigating Officer and has summoned the applicant under Section 452, 504 and 506 of the Indian Penal Code by order dated 1.10.2022. 8. It is further to be noted that after submission of above-mentioned charge sheet before the court concerned, Investigating Officer has preferred an application before the court concerned on 17.10.2022 for cancellation of the chargesheet and returning the same for investigation. The aforesaid application was made on the basis that charge sheet in the above-mentioned case was forwarded to the Circle Officer concerned and, thereafter, an order for further investigation was directed. After further investigation, the name of applicant has not been found to be an accused in the present criminal case, however, when the chargesheet has already been submitted against applicant, the application was preferred by the Investigating Officer before the court concerned. 9. On the basis of order for further investigation, Investigating Officer has come to the conclusion in the case diary that applicant is not in any manner involved in the alleged crime, however, since the chargesheet has already been submitted before the court concerned, a report was submitted before the court concerned by the Investigating Officer. In this respect, relevant extract of the case diary is filed along with the rejoinder affidavit is quoted hereinbelow :- 10. The second statement of informant was also recorded by Investigating Officer during further investigation, where informant has stated that on the behest of other persons, informant had included the name of applicant in the previous statement and First Information Report. Informant has further stated that on the date of incident except for co-accused– Shahzad there was no other person. Informant has further stated that applicant had never come to the house of informant and has never threatened or abused. Copy of second statement of informant taken by Investigating Officer is annexed as Annexure SA-1 to the supplementary affidavit filed by applicant before this Court. 11. Further, the second statement of witness Irshad (husband of informant) was also taken by Investigating Officer. Copy of second statement of informant taken by Investigating Officer is annexed as Annexure SA-1 to the supplementary affidavit filed by applicant before this Court. 11. Further, the second statement of witness Irshad (husband of informant) was also taken by Investigating Officer. The aforesaid witness has also stated that applicant has been falsely implicated in the case at the behest of other person. He has further stated that on 1.7.2022 except for co-accused Shahzad no other person has committed any incident against informant or the said witness. He has further stated that no abuse of language or threatening was made by applicant. The copy of second statement of witness Irshad is annexed as Annexure SA-2 to the supplementary affidavit. 12. Similarly, the witness Firoz has also stated that applicant was not involved in the alleged crime and was not present at the place of incident. The statement of witness is annexed as Annexure SA-3 to supplementary affidavit. 13. It is submitted by applicant in person that there was no allegation of sexual assault in the First Information Report against him. The only allegation in the First Information Report is with regard to hurling abusive language and threatening while entering in the house of informant. During investigation, statement of victim under Section 164 Cr.P.C. was recorded in which no allegation of sexual assault has been made against applicant. In the statement recorded under Section 161 Cr.P.C. initially the informant had stated that applicant had abused and threatened, however, those allegations are wholly vague in nature. Applicant was not present at the time of incident. Subsequently, second statement of informant has been recorded in which informant has denied the prosecution allegation against applicant and has stated that applicant has neither abused nor threatened. 14. It is further submitted by applicant that the Investigating Officer after submission of chargesheet has also applied before the court concerned that applicant has been falsely implicated in the present case. The chargesheet against applicant has been filed under Sections 452, 504, 506 I.P.C. Summoning order has been issued by the court concerned without examining the material evidence on record. The second statement of informant was neither considered while issuing summoning order nor the court concerned has applied it’s mind whether in view of allegations any offence under Sections 452, 504, 506 I.P.C. is made out against applicant. The second statement of informant was neither considered while issuing summoning order nor the court concerned has applied it’s mind whether in view of allegations any offence under Sections 452, 504, 506 I.P.C. is made out against applicant. The summoning order has been passed in a mechanical manner without going through the chargesheet and second statement of informant. 15. In view of aforesaid, applicant submits that the criminal proceedings against applicant are liable to be set aside. 16. Learned A.G.A. for the State has opposed the present application. However, he does not dispute the fact that there is no allegation of sexual assault against applicant and in the second statement of informant recorded by Investigating Officer, informant has stated that allegations against applicant with regard to using abusive language and thereatening were false. A similar statement has also made by husband of the informant as per learned A.G.A. 17. Learned A.G.A. also does not dispute the fact that Investigating Officer has filed an application before the court concerned that the name of applicant has been incorrectly incorporated in the chargesheet as there is no evidence. 18. The applicant has been summoned by order dated 1.10.2022 by the court concerned under Sections 452, 504 and 506 of the Indian Penal Code. The entire criminal proceedings against applicant are challenged by means of present application under Section 482 Cr.P.C. 19. As per allegations in the First Information Report, it is alleged that on 19.5.2022 at about 6:00 p.m. when the son of informant, who is aged about five years went in the neighbourhood for playing then informant heard the distress call that son of the informant was taken away by co-accused Shahzad and was sexually assaulting the son of informant. When the informant reached the spot, she found that lower of the victim was removed and victim was naked and both his hands were tied up. When informant was going to the police station to report the incident, neighbourhood person made conciliation between the parties and the aforesaid co-accused accepted his mistake. The aforesaid co-accused Shahzad on several occasions tried to take away the victim and also abused the informant and her husband and threatened for life. When informant was going to the police station to report the incident, neighbourhood person made conciliation between the parties and the aforesaid co-accused accepted his mistake. The aforesaid co-accused Shahzad on several occasions tried to take away the victim and also abused the informant and her husband and threatened for life. On 1.7.2022 also, informant and her husband were threatened by co-accused Shahzad and applicant along with co-accused Awkesh came to the house of informant at about 6:00 p.m. and threatened for life to informant and her husband. 20. In the statement under Section 164 Cr.P.C. of victim, no allegations have been made by victim against applicant. The only allegation as per First Information Report against applicant is to the effect that applicant has gone to the house of informant along with co-accused Shahzad. The aforesaid allegations are challenged by applicant on the ground that on the date of incident, applicant was not present at the place of incident. It is submitted by applicant that applicant has been falsely implicated in the case and even as per prosecution case, applicant could not have been summoned. 21. It is further to be noted that in the first round of investigation, Investigating Officer has recorded the statement of informant, who has stated that applicant along with co-accused have came to the house of informant and abused the informant and her husband and has further threatened for life in the event any report is given against them to the police station. It is evident from the statement of informant during investigation that after the aforesaid threatening, First Information Report was lodged at police station. 22. The statement of victim under Section 161 Cr.P.C. was also recorded by Investigating Officer where allegations have been made of using abusive language and threatening by applicant. The allegations have been made against co-accused Shahzad by the victim. Thereafter, statement under Section 164 Cr.P.C. of victim was recorded by the court concerned where also no allegations have been made against applicant by the victim. 23. It is further to be noted that subsequently second statement of informant was recorded by the Investigating Officer where informant has stated that applicant was not involved in the alleged crime and his name was included in the First Information Report at the behest of other persons. The informant has further stated that no abusive language or threatening was made by applicant. The informant has further stated that no abusive language or threatening was made by applicant. A similar statement has also been made by witnesses, namely, Irshad and Firoz. The statements of aforesaid witnesses are annexed along with supplementary affidavit filed by the applicant. 24. Investigating Officer submitted chargesheet against applicant on 28.8.2022 under Sections 452, 504 and 506 IPC and the court concerned has taken cognizance of the aforesaid. Investigating Officer on 17.10.2022 has further submitted a report before the court concerned that on the basis of investigation, no offence has been found against applicant and as such, name of the applicant is required to be rejected from the chargesheet. It is further to be noted that summoning order against the applicant has been issued on 1.10.2022. 25. The applicant has been proceeded with under Section 452 of the Indian Penal Code. The provisions of Section 452 of the Indian penal code is quoted hereinbelow :- "452. House-trespass alter preparation for hurt, assault or wrongful restraint.—Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 26. It is to be seen that as per First Information Report, it is alleged that applicant with co-accused have entered the house of informant and have used abusive language and have threatened for life. In the first statement of informant before the Investigating Officer, it is alleged that applicant along with co-accused have entered into the house of informant and threatened the informant and her husband and have used abusive language. In the statement of informant as well as in First Information Report, there is no material that applicant has entered into the house of informant after having made preparation for causing hurt to any person or for assaulting any person. There is no allegation in prosecution case that applicant was carrying any weapon at the relevant time nor any material has been found during investigation as to how preparation for causing hurt or assaulting has been made by applicant. There is no allegation against applicant that applicant has actually assaulted the informant or caused harassment at the time of incident. There is no allegation in prosecution case that applicant was carrying any weapon at the relevant time nor any material has been found during investigation as to how preparation for causing hurt or assaulting has been made by applicant. There is no allegation against applicant that applicant has actually assaulted the informant or caused harassment at the time of incident. 27. There is further no material found during investigation that applicant had made any preparation for wrongfully restraining any person or actually restrained any person including informant or her husband. In the statements of informant and other witnesses, no allegations have been made with regard to any wrongful restraint or preparation for wrongful restraint by applicant. As per prosecution case, it is not alleged that applicant has acted for putting any person in fear of hurt, or of assault, or of wrongful restraint. The prosecution case against applicant is only with respect to use of abusive language and threatening. The language used by applicant has not been stated by informant in the First Information Report or in the statement under Section 161 Cr.P.C. The allegations with regard to use of abusive language are wholly vague in nature and there is no specific material in the investigation in this respect. Even otherwise allegation of using of abusive language by applicant would not bring the applicant within the ambit of Section 452 of the Indian Penal Code. 28. It is further to be noted that informant and other witnesses in their second statements before Investigating Officer have stated that applicant was not involved in the alleged incident and no abusive language or threatening have been extended by applicant. The aforesaid second statements of informant and other witnesses have not been denied by opposite party before this Court. 29. Considering the facts and circumstances of the case coupled with the fact that Investigating Officer has also preferred an application before the court concerned for rejecting the name of applicant, as no evidence has been found during investigation, no offence under Section 452 of the Indian Penal Code can be said to have been made out against applicant. 30. The applicant has also been summoned under Sections 504 and 506 of the Indian Penal Code. The applicant has put to challenge the summoning under the aforesaid sections on the ground that no offence is made out. 30. The applicant has also been summoned under Sections 504 and 506 of the Indian Penal Code. The applicant has put to challenge the summoning under the aforesaid sections on the ground that no offence is made out. The offence of criminal intimidation has been prescribed under Section 503 of the Indian Penal Code and the same is quoted hereinbelow :- "503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." 31. An act of criminal intimidation would occur when a person threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. 32. In the present case, as per First Information Report, the allegation against applicant is that applicant has accompanied co-accused Shahzad to the house of complainant and co-accused Shahzad had threatned for life to the informant and her husband at about 6:00 p.m. There is no allegation against applicant in the statement of victim under Section 164 Cr.P.C. In the statement of informant under Section 161 Cr.P.C., it is alleged that applicant has accompanied co-accused and have abused and threatned for life. The nature of abusive language alleged to have been used by applicant has not been stated. The allegations with regard to threatening for life are wholly vague in nature. Investigating Officer in his report dated 17.10.2022 to the court concerned has stated that applicant is innocent and no complicity of applicant is found during investigation. The nature of abusive language alleged to have been used by applicant has not been stated. The allegations with regard to threatening for life are wholly vague in nature. Investigating Officer in his report dated 17.10.2022 to the court concerned has stated that applicant is innocent and no complicity of applicant is found during investigation. It is further to be noted that second statement of informant was recorded by Investigating Officer, where the informant has stated that except for co-accused Shahzad no other person has accompanied the aforesaid co-accused to the house of informant nor applicant has made any threatening or abusive language. The aforesaid statement of informant has been supported by statements of husband of informant and witness Firoz. The aforesaid second statement of informant, husband of informant and witness Firoz have been filed along with supplementary affidavit by the applicant. The opposite party has not disputed the aforesaid second statement of informant and the two witnesses as detailed hereinabove. The aforesaid second statements of witnesses have not been challenged by the opposite parties before this Court. 33. In view of second statement made by informant and her husband Irshad and witness Firoz who have clearly stated that applicant had not come along with co-accused Shahzad to the house of informant nor he had used any abusive language or threatened for life. It is further to be noted that even otherwise allegations with regard to use of abusive language and threatening for life are wholly vague in nature. In the investigation, it has not come out by way of material as to what abusive language used by applicant nor the nature of threatening for life has been disclosed. The criminal prosecution entails infringement of personal liberty of individual and as such, it is imperative on the part of prosecution to bring specific case of criminality against accused person. Vague allegation, which do not have foundation of any material particulars and specification, by itself cannot be a ground to proceed against an individual in view of Article 21 of the Constitution of India. In view of aforesaid, no case is made out against applicant under Section 504 and 506 of the Indian Penal Code. 34. Vague allegation, which do not have foundation of any material particulars and specification, by itself cannot be a ground to proceed against an individual in view of Article 21 of the Constitution of India. In view of aforesaid, no case is made out against applicant under Section 504 and 506 of the Indian Penal Code. 34. In view of above, the criminal proceedings against applicant are an abuse of process of law and applicant is not required to face the trial when prosecution witnesses have themselves denied the complicity of applicant in the crime in question. 35. Accordingly, the present application is allowed and the criminal proceedings in abovementioned case including the summoning and cognizance order dated 1.10.2022 are hereby quashed in respect of applicant-Amaan Abbaas @ Asbeg.