The Allahabad High Court held that the veracity of the allegations cannot be decided while issuing the summons.
A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing an application under Section 482 CrPC filed by Pankaj Tyagi.
By means of the application under Section 482 of the Code of Criminal Procedure the applicant has invoked the inherent jurisdiction of the Court for quashing the charge sheet dated July 09, 2017, under Sections 354, 452, 323, 504, 506 IPC, cognizance and summoning order dated July 17, 2017 passed by the Judicial Magistrate-III, Meerut, order dated October 25, 2017 whereby the Magistrate issued bailable warrant as well as further proceedings of case pending in the court of Additional Chief Judicial Magistrate-V, Meerut.
In this case, the charge sheet was submitted way back on 09.07.2015, cognizance was taken thereon and summoning order was passed on 17.07.2015, which were challenged by the applicant before the Court by filing the application on 12.1.2022, i.e after about six and a half years. When, counsel for the applicant was confronted with the aforesaid delay in challenging the charge sheet, cognizance and summoning order, he submitted that the applicant was not aware about the initiation of the proceedings against him.
On a query by the Court that the Magistrate in the order dated 25.10.2017 has specifically mentioned that “on the case being taken up, accused did not turn up, summon has already been served upon him, issue bailable warrant against him”, counsel for the applicant has belied the order of the Magistrate by saying that aforesaid order has been passed by the Magistrate on the basis of conjecture and surmises.
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The facts of the application are that an application under Section 156(3) Cr.P.C was moved by the victim on 01.09.2014 before the Judicial Magistrate-III, Meerut with the allegations that accused-Pankaj, who is the resident of the same village used to stalk her with bad intention and was in search of making sexual relations with the applicant-victim for the last one year.
On 01.7.2014, the accused, with an intention to outrage her modesty, caught hold of her, but the matter was resolved by the police by putting pressure on the family of the victim. On 27.8.2014, when the victim was sleeping in her room, at about 11.00 PM, accused barged into her room, swooped her and tried to commit rape upon her forcibly. On the shrieks of the victim, her mother wake up and apprehended the accused, but by using force, abusing and assaulting her mother, he managed to escape by extending threat that if the victim does not make sexual relation with him, he will attack her with acid. The incident was witnessed in the light of inverter.
The application further mentions that she has given information to the police on 28.8.2014 and also sent a letter to the Senior Superintendent of Police, Meerut on 30.8.2014, but since, no action was taken by the police, she has filed the application under Section 156(3) Cr.P.C supported by her affidavit.
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The application was allowed by the Judicial Magistrate-III, Meerut vide order dated 26.9.2014 and SHO concerned was directed to lodge an FIR and investigate the matter.
In pursuance of the order of the Magistrate dated 26.9.2014, the FIR was lodged on 28.9.2014 at case under Sections 354, 376, 511, 504, 506, 323, 452 IPC, police station Kharkhauda, sub-district Sadar, district Meerut.
The main substratum of argument of the counsel for the applicant is that the first information report was lodged on the basis of application and order passed under Section 156(3) Cr.P.C for the incident which took place on 27.08.2014 by one Koshika impersonating herself as Neha on the basis of false, frivolous and cooked up story, whereas Neha has left for her heavenly abode on 13.05.2008. In support of his submission, counsel for the applicant has relied upon an undated death certificate issued by the New Delhi Municipal Council to show that Neha died on 13.5.2008 at All India Institute of Medical Sciences, New Delhi.
Counsel for the applicant further submitted that statements recorded under sections 161 and 164 Cr.P.C are false and manipulated.
Counsel for the applicant lastly submitted that the applicant has been falsely implicated in the case and no offence whatsoever is made out against the applicant. Under the facts and circumstances of the case, charge-sheet, cognizance order, summoning order and further proceedings initiated against the applicant are liable to be quashed by the Court.
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Per contra, Additional Government Advocate representing the State submits that on 04.2.2022 when this case was taken up for the first time, on the submission advanced by the counsel for the applicant that the victim, who has lodged the application under Section 156(3) Cr.P.C on 01.9.2014, has already died on 13.5.2008, State was directed to obtain instructions. On the basis of instructions, AGA submitted that the death certificate produced by the counsel for the applicant is found fake and manipulated.
Further, the applicant has never produced the said death certificate before the investigating officer during investigation to verify the truth or otherwise of the said certificate whereas the statement of the applicant was recorded by the investigating officer on 09.7.2015.
To buttress his submission, Additional Government Advocate has produced before the Court death certificate of Neha, issued by the Registrar, Birth and Death, Nagar Nigam, Meerut showing her death at Ring Road, Lohiya Nagar, Meerut on 24.9.2015. He has also produced a copy of paper cutting dated 25.9.2015 of Amar Ujala, Meerut Edition in which it was mentioned that Neha died in road accident.
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Additional Government Advocate also submitted that the allegations made in the FIR as well as material against the applicant, as per prosecution case, the cognizable offence against the applicant is made out. The criminal proceedings against the applicant cannot said to be abuse of the process of the Court. Hence this application is liable to be rejected.
The Court observed that the case of the applicant does not fall within the categories of rarest of rare cases. The Court is of the view that the appreciation of evidence is a function of the trial court and the Court in exercise of power under Section 482 CrPC cannot assume such jurisdiction and put to an end to the process of trial provided under the law.
It is well settled by the Apex Court in the judgments that the power under Section 482 Cr.P.C at pre-trial stage should not be used in a routine manner, but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in first information report or charge-sheet and the materials relied in support of thereof, taking on their face value and accepting in their entirety do not disclose the commission of any offence against the accused, the court held.
The Court is further of the view that the grounds taken in the application reveal that many of them relate to disputed question of fact, which cannot be adjudicated by this Court at the pre-trial stage, which can be more appropriately gone into by the trial court at the appropriate stage. The applicant has an alternative statutory remedy of moving discharge application at the appropriate stage.
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The Court said that the taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At that stage the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused.
“Having considered the facts, circumstances and nature of allegations against the applicant in the instant case, I am of the considered view that a prima facie cognizable offence is made out against the applicant. The impugned criminal proceeding under the facts of this case cannot said to be an abuse of the process of the Court.
In view of what has been indicated herein above, I am of the view that there is no good ground to invoke inherent power under Section 482 of the Code of Criminal Procedure by the Court. Accordingly, the relief as sought by the applicant by means of the application is hereby refused”, the Court observed while rejecting the application under Section 482.