Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 109 (ALL)

Vikas v. State of U. P.

2025-01-24

RAJEEV MISRA

body2025
Hon'ble Rajeev Misra,J. Heard Mr. Vimlendu Tripathi, the learned counsel for applicants, the learned A.G.A. for State and Mr. J.K. Upadhyay, assisted by Mr. Pankaj Upadhyay, the learned counsel representing opposite party-1. Perused the record. This application under section 482 Cr.P.C. has been filed by charge sheeted accused Vikas and 2 Others with the following prayer: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to: Final Relief: To quash the impugned summoning and cognizance order dated 27.02.2024 and 11.03.2024 passed by the court of Special Judge (SC/ST Act), Gautam Buddh Nagar in Special Trial No. 200 of 2024 (State of U.P. vs. Vikas and others) as well as the impugned ist charge sheet and 2nd charge sheet dated 24.02.2024 and 10.03.2024 and the impugned entire proceeding arising out of Special Trial No. 200 of 2024 (State of U.P. vs. Vikas and others) arising out of Case Crime No. 896 of 2023, Under Sections 506, 376D I.P.C. and Section 3(1) (Dha), 3(2) (5) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, Police Station Sector 39 Noida, District Gautam Buddh Nagar, so that justice may kindly be done I nterim Relief: - To stay further proceedings of Special Trial No. 200 of 2024 (State of U.P. vs. Vikas and others) arising out of Crime No. 896 of 2023, Under Sections 506, 376D I.P.C. and Section 3(1) (Dha), 3(2) (5) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, P.S. Sector 39 Noida, Gautam Buddh Nagar pending in the Court of Special Judge (SC/ST Act), Gautam Buddh Nagar during the pendency of the instant application, otherwise the applicants shall suffer irreparable loss and injury, And/or pass such other order or further direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." At the very outset, the learned counsel for applicants submits that co-accused Azad approached this Court by means of Application U/S 482 No. 25599 of 2024 (Azad Vs. State of U.P. and Another), wherein an interim order dated 3.10.2024 was passed by this Court. For ready reference the same is reproduced herein under: "1. Heard Shri Anoop Trivedi, learned Senior Counsel assisted by Sri Vimlendu Tripathi, learned counsel for the applicant, Sri Rajrshi Gupta, learned counsel for the opposite party no. 2 and Sri J.K. Upadhyay, learned A.G.A. for the State. For ready reference the same is reproduced herein under: "1. Heard Shri Anoop Trivedi, learned Senior Counsel assisted by Sri Vimlendu Tripathi, learned counsel for the applicant, Sri Rajrshi Gupta, learned counsel for the opposite party no. 2 and Sri J.K. Upadhyay, learned A.G.A. for the State. 2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Special Case No. 200 of 2024 (State of U.P. Vs. Vikas and others) arising out of Case Crime No. 896 of 2023, under Sections 506, 376-D of I.P.C., and Section 3(1)(dha), 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station- Sector 39 NOIDA, District Gautam Buddha Nagar, as well as cognizance/summoning order dated 27.02.2024 and in alternative quashing the order dated 14.06.2024 whereby the application under Section 173(8) of Cr.P.C. has been rejected pending in the court of Special Judge (SC/ST Act), Gautam Buddha Nagar. 3. Brief facts of the case are that the first information report dated 30.12.2023 has been lodged by the victim against the applicant and 5 other named persons alleging that on 12.06.2023 co-accused Raj Kumar called the first informant with all testimonials to provide employment by co-accused Ravi. On 15.06.2023 after believing on Raj Kumar co- accused Raj Kumar and Mahimi brought the first informant in garden galeria where the vehicle was parked at the same time three other boys came and identified co-accused Ravi and the present applicant and one Vikas and thereafter, co-accused Ravi made her sit in the car and talked to her and all other persons were standing out of the vehicle having firearm, then co-accused Ravi committed rape with her and made a video and threatened her with dire consequences if she informed to any one but due to this fear she did not inform her family members but they tortured the first informant, due to this reason the present complaint has been filed. 4. During the investigation statement of the first informant under Section 161 of Cr.P.C. was recorded on 30.12.2023. On 31.12.2023, the present applicant and other co-accused Raj Kumar were arrested. The statement of the first informant/ victim was recorded under Section 164 of Cr.P.C. on 02.01.2024. 4. During the investigation statement of the first informant under Section 161 of Cr.P.C. was recorded on 30.12.2023. On 31.12.2023, the present applicant and other co-accused Raj Kumar were arrested. The statement of the first informant/ victim was recorded under Section 164 of Cr.P.C. on 02.01.2024. Second statement of the victim was recorded on 05.02.2024, wherein the victim/ first informant stated that the applicant and other co-accused persons committed rape with her several times, after lodging of the F.I.R., thereafter, the offence punishable under Sections Section 3(1)(dha), 3(2)(v) of S.C./S.T. Act, has been added and the present applicant granted bail on 21.03.2024. 5. Learned Senior counsel for the applicant submits that the first information report dated 30.12.2023 has been lodged by the victim with regard to the incident dated 19.06.2023, on the basis of false and frivolous allegations with ulterior motive and only to harass the present applicant. It is further submitted that as per allegations of the F.I.R. rape was committed on 19.06.2023 in a parking place of four wheeler garden galeria by the co-accused Ravi and applicant and other co- accused persons standby out of vehicle having firearm for assistance. 6. It is further submitted that present case is outcome of; (i). Firstly; Writ- C No. 35718 of 2023 (Ravindra Nagar Vs. State of U.P. and 6 others) has been filed to provide Security to the co-accused Ravindra Nagar, which was illegally withdrawn vide order dated 3.10.2023 by Additional Commissioner of Police (Security and Intelligence), District Gautam Buddha Nagar, whereby a Division Bench of this Court vide order dated 16.10.2023 directed to Commissioner of Police, District Gautam Buddha Nagar to provide security to the petitioner, as was provided till 24.07.2023. (ii) Secondly; A Contempt Application (Civil) No. 8223 of 2023, has been filed by co-accused Ravindra Nagar, wherein a co-ordinate Bench of this Court has directed the Standing Counsel to seek instructions in the matter within one month. (ii). Thirdly; conviction of judgment and order dated 05.04.2021 passed by Additional Sessions Judge/ F.T.C., Gautam Buddha Nagar in Case arising out of Session Trial No. 558 of 2015, (State Vs. Yogesh and 9 others), under Sections 147, 148, 149, 307, 302, 120-B of I.P.C. and Session Trial Nos. (ii). Thirdly; conviction of judgment and order dated 05.04.2021 passed by Additional Sessions Judge/ F.T.C., Gautam Buddha Nagar in Case arising out of Session Trial No. 558 of 2015, (State Vs. Yogesh and 9 others), under Sections 147, 148, 149, 307, 302, 120-B of I.P.C. and Session Trial Nos. 330 of 2015; 331 of 2015; 559 of 2015; 572 of 2015; 573 of 2015; 325 of 2016; 289 of 2017 and 567 of 2015, wherein the present applicant and other co-accused persons of the present case were witnesses in a double murder case, where the notorious criminal Sundar Bhati and his gang members have been convicted and 10 criminal appeals have been pending till today. (iii) Fourthly; The applicant was an eye witness and Pairokar of first informant in the aforesaid Session Trial. 7. It is further submitted that at the time of the incident, the applicant and another co-accused persons were in security under the orders of the court. It is further submitted that on that date of alleged incident, mother of the applicant was died and cremation was taken place. It is further submitted that delay in lodging of the F.I.R. (about six months) has not been explained. It is further submitted that the applicant does not know the alleged victim and who has been used as a tool for false implication. As per prosecution case, the victim was 25 years old at the time of the alleged incident. 8. Learned Senior Counsel relied upon the judgment of Supreme Court in Salib @ Salim Vs. State of U.P., 2023 LiveLaw (SC) 618, wherein the Supreme Court observed in paragraph no. 26 which is extracted hereinbelow: "26. … it will not be just enough for the Court to look into the averments made in the FIR/ complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into may other attending circumstances emerging form the record of the case over and above the averments and, if need be, with due care and circumspection, try to read in between the lines." 9. Prima facie, matter requires consideration. 10. Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A. 11. Learned A.G.A. as well as opposite party no. Prima facie, matter requires consideration. 10. Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A. 11. Learned A.G.A. as well as opposite party no. 2 may file their counter affidavits within two weeks. Rejoinder affidavit may be filed within one week thereafter. 12. Put up this case as fresh on 28.11.2024. 13. Until further orders of this Court, further proceedings of the aforesaid case, shall remain stayed against the applicant. " It is then contended that another co-accused Ravi has also approached this Court by means of an Application U/S 482 No. 35380 of 2024, wherein an interim order dated 5.12.2024 was passed by this Court. For ready reference, the same is extracted herein under: "1. Learned Senior Counsel has referred to the order dated 03.10.2024 passed in Application U/S 482 No. 25599 of 2024 preferred by co- accused Azad to point out that the proceeding qua him in the subject trial have been stayed. 2. He refers to the order and contends that the grounds raised in the said application seeking quashing of the impugned criminal proceeding have been noticed, and the present petition filed by co-accused Ravi Kana Alias Ravindra Nagar is also on similar ground. 3. Issue notice. 4. At this stage Sri P.K.Giri, learned Additional Advocate General has accepted notice on behalf of opposite party no.1, he prays for and is allowed two weeks' time to file response. 5. Sri Varunesh Shukla, Advocate accepted notice on behalf of complainant, who also prays for time to file response. 6. Put up this case as fresh on 07.01.2025. 7. Until further orders of this Court, further proceedings of the aforesaid case, shall remain stayed against the applicant. " On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to co-accused in whose favour interim protection has already been granted by this Court. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny them interim relief. It is also contended by learned counsel for applicant that since all the cases arise out of same case crime number, dictates of prudence require that all the cases be heard together. However, the pleadings have not yet been exchanged between the parties. It is also contended by learned counsel for applicant that since all the cases arise out of same case crime number, dictates of prudence require that all the cases be heard together. However, the pleadings have not yet been exchanged between the parties. As such on indulgence be granted by this Court to enable the parties to exchange the pleadings and the matter be listed thereafter for hearing. He therefore, submits that irrespective of above, the liberty of present applicants is also liable to be protected. Per contra, Mr. J.K. Upadhyay, the learned A.G.A-Ist assisted by Mr. Pankaj Srivastava the learned A.G.A. has opposed the present application. However he could not dislodge the factual and legal submission urged by the learned counsel for applicants, with reference to the record at this stage. Having heard the learned counsel for applicants, the learned A.G.A.-Ist for State and upon perusal of the record, this Court finds that the matter requires consideration. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A. Issue notice to opposite party-2. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice. List for admission on 6.3.2025 along with connected matters. When the matter is listed next, the details of all the applications shall be duly published in the cause list. Considering the facts and circumstances of the case, the submissions urged by the learned counsel for applicants in support of this application, as noted herein above, as well as facts and reasons mentioned in the interim orders dated 3.10.2024 and 5.12.2024 as noted herein above as an interim measure, it is hereby provided that until further orders of this Court, further proceedings of Special Trial No. 200 of 2024 (State of U.P. vs. Vikas and others) arising out of Case Crime No. 896 of 2023, Under Sections 506, 376D I.P.C. and Section 3(1) (Dha), 3(2) (5) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, Police Station Sector 39 Noida, District Gautam Buddh Nagar shall remain stayed.