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2025 DIGILAW 108 (ALL)

Anil Kumar Gupta v. State of U. P.

2025-01-24

RAJEEV MISRA

body2025
JUDGMENT : Rajeev Misra, J. 1. Hear Mr. Surya Pratap Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Yadav, the learned counsel representing first informant/opposite party-2. 2. This application under section 482 Cr.P.C. has been filed by charge sheeted accused Anil Kumar Gupta with the following prayer: It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow this application under Section 482 Cr.P.C. and quash the impugned charge sheet dated 23.11.2022 as well as impugned order dated 05.10.2024 as well as entire proceedings registered in its pursuance as Session Trail No. 04 of 2023 (State of U.P Vs. Anil Kumar Gupta) Kushinagar, under Sections 376, 323, 504, 506 IPC, Police Station- Pataherwa, District- Kushinagar pending before the court of Additional Sessions Judge, FTC-2, Kushinagar at Padrauna including order of cognizance and summoning dated 12.12.2022 as well as the order framing charges dated 05.10.2024 passed by Court below in aforesaid proceedings. It is further prayed that this Hon'ble court may be pleased to stay the effect and operation the impugned charge sheet dated 23.11.2022 as well as impugned order dated 05.10.2024 as well as entire proceedings registered in its pursuance as Session Trail No. 04 of 2023 (State of U.P Vs. Anil Kumar Gupta Kushinagar, under Sections 376, 323, 504, 506 IPC, Police Station- Pataherwa, District- Kushinagar pending before the court of Additional Sessions Judge, FTC-2, Kushinagar at Padrauna including order of cognizance and summoning dated 12.12.2022 as well as the order framing charges dated 05.10.2024 passed by Court below in aforesaid proceedings, during the pendency of the present application u/s 482 Cr.P.C. 3. At the very outset, the learned A.G.A. for State and the learned counsel representing opposite party-2 have raised a preliminary objection by contending that since charges have been framed against charge sheeted accused/applicant vide framing of charge order dated 5.10.2024. It is then contended that once the charges have been framed, Court below has to answer the charges one way or the other. As such, such no relief can be granted to applicant in present application. 4. When confronted with above, the learned counsel for applicant relying upon the judgement of Supreme Court in Satish Mehra VS. It is then contended that once the charges have been framed, Court below has to answer the charges one way or the other. As such, such no relief can be granted to applicant in present application. 4. When confronted with above, the learned counsel for applicant relying upon the judgement of Supreme Court in Satish Mehra VS. State (NCT of Delhi) and Another, (2012) 13 SCC 614, submits that even though the framing of charge order has been passed by Court, the veracity of the proceedings can be examined in exercise of Jurisdiction under section 482 Cr.P.C. He, therefore submits that in view of above, present application is maintainable. 5. Having heard the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Yadav, the learned counsel representing first informant/opposite party-2, and upon perusal of record, this Court finds that in view of the law laid down by Apex Court in Satish Mehra VS. State (NCT of Delhi) (Supra) the preliminary objection raised by the learned A.G.A and the learned counsel representing first informant in opposition to this application is misconceived. Accordingly, the preliminary objection stands rejected. 6. Learned counsel for applicant submits that the F.I.R. giving rise to present criminal proceedings was lodged on 10.4.2022. With reference to above, the learned counsel for applicant submits that in the day, date and time of occurrence column of F.I.R, no date has been mentioned. He has then taken the Court to the body of the F.I.R and on basis thereof, he submits that it is an admitted case of the prosecutrix/first informant that she entered into live in relationship with accused in the year 2015. As such, the F.I.R. giving rise to present application is highly belated. However, no explanation has come forward in the F.I.R. explaining the delay in lodging the F.I.R. After aforementioned F.I.R. was lodged, Investigating Officer recorded the statement of the prosecutrix/first informant/opposite party-2 under section 161 and 164 Cr.P.C. However, even in the aforesaid statements of the prosecutrix, copies of which are on record at page 102 and 112 of the paper book, no attempt has been made by the prosecutrix to explain the delay in lodging the F.I.R. As such, the criminal prosecution of applicant cannot be sustained. Referring to the judgements of Supreme Court in P. Ramchandra Rao Vs. State of Karnataka (2002) 4 SCC 578 , P. Rajagopal And Ors. Vs. Referring to the judgements of Supreme Court in P. Ramchandra Rao Vs. State of Karnataka (2002) 4 SCC 578 , P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866/ 2019(5) SCC 403 , Hasmukhlal D. Vora and Another Vs. State of U.P. (2022) 15 SCC 164 , Sekaran Vs. State of Tamil Nadu (2024) 2 SCC 176 , Shivendra Pratap Singh Thakur @ Banti Vs. State of Chhattisgarh and Others, 2024 SCC Online 938, the learned counsel for applicant submits that the Apex Court has now held that if there is unexplained delay/laches in lodging the F.I.R, the consequential prosecution of accused cannot be sustained. It is thus urged by the learned counsel for applicant that since there is unexplained delay in lodging the F.I.R giving rise to present criminal proceedings, therefore, the prosecution of applicants cannot be sustained. Much emphasis was laid upon the judgement of Supreme Court in Shivendra Pratap Singh Thakur (supra) wherein the Court quashed the criminal proceedings pending against the accused therein as there was an unexplained delay of 39 days in lodging the F.I.R. He therefore, contends that impugned proceedings cannot be sustained and therefore, present application is liable to be allowed. 7. It is thus contended by the learned counsel for applicant that it is an undisputed fact that parties were in consensual relationship since the year 2015. However, no objection was ever raised by the prosecutrix, prior to the F.I.R. It is thus contended by the learned counsel for applicant that in view of above, no criminality can be said to have been committed by applicant. Referring to the judgements of Supreme Court in Prashant Vs. State (NCT of Delhi), 2024 SCC Online Sc 3375, and Mahesh Damu Khare Vs. State of Maharashra and Another, 2024 SCC Onlinie SC 3471, the learned counsel for applicant submits that in view of long consensual relationship between the parties, the impugned F.I.R. cannot be sustained. Reliance is placed upon paragraphs 31 and 35 of the judgement in Mahesh Damu Khare (Supra). For ready reference, the same are reproduced herein under: "31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. Reliance is placed upon paragraphs 31 and 35 of the judgement in Mahesh Damu Khare (Supra). For ready reference, the same are reproduced herein under: "31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful. 35. In our opinion, allowing the criminal proceeding against the appellant in the facts and circumstances to continue, where no criminal liability can be attached, would amount to abuse of the process of court. Therefore, under the circumstances, we are satisfied that the appellant is entitled to the relief claimed for quashing the complaint/FIR. 8. Mr. Surya Pratap Singh, the learned counsel for applicant lastly submits that prosecutrix/first informant is a married women. However in the entire case diary, date of divorce, (talak) extended by the first husband of the prosecutrix is not mentioned. Even in her statements under section 161 and 164 Cr..C. the prosecutrix has not mentioned, on which date she was divorced by her first husband. On the aforesaid premise, the learned counsel for applicant thus contends that the ratio laid down by the Apex Court in XXXX Vs. State of Madhya Pradesh and Another, (2024) 3 SCC 496 is squarely applicable . On the above premise, the learned counsel for applicant submits that the impugned proceedings cannot be sustained and as such, present application is liable to be allowed. 9. Per contra, the learned A.G.A. and the learned counsel representing the prosecutrix/first informant/opposite party-2 have opposed the present application. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. during course of investigation, sufficient material was gathered by the Investigating Officer. Prima facie the criminality alleged to have been committed by applicant was found to be established as per the said material. Accordingly, applicant has been charge sheeted. Applicant is guilty of dislodging the modesty of the prosecutrix. According to the learned A.G.A. during course of investigation, sufficient material was gathered by the Investigating Officer. Prima facie the criminality alleged to have been committed by applicant was found to be established as per the said material. Accordingly, applicant has been charge sheeted. Applicant is guilty of dislodging the modesty of the prosecutrix. Offence complained of is not only illegal but also immoral. As such, no interference is warranted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. 10. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that the matter requires consideration. 11. Notice on behalf of opposite party No.1 has been accepted by the learned A.G.A. Mr. Sanjay Yadav, has put in appearance on behalf of prosecutrix/first informant/opposite party-2. They pray for and are granted four weeks time to file counter affidavits. Applicant will have two weeks thereafter to file his rejoinder affidavits. 12. List for admission on 6.3.2025. 13. Considering the facts and circumstances of the case, the submissions urged by learned counsel for applicants in support of the application as noted herein above, and the judgements of the Supreme Court as noted herein above, as an interim measure, it is hereby provided that until further orders of this Court, further proceedings in Session Trial No. 04 of 2023 (State of U.P Vs. Anil Kumar Gupta) Kushinagar, under Sections 376, 323, 504, 506 IPC, Police Station- Pataherwa, District- Kushinagar pending in the court of Additional Sessions Judge, FTC-2, Kushinagar at Padrauna shall remain stayed.