Khursheed v. State of U.P. & Another
Case Details
Court No. 78 HIGH COURT OF JUDICATURE AT ALLAHABAD Application U/S 482 No. 21837 of 2024 Khursheed … Applicant versus State of U.P. & Another ...Opposite Parties JUDGMENT HON’BLE SANJAY KUMAR PACHORI, J. 1.
Legal Reasoning
31. As held by this Court in State of Andhra Pradesh v. Gourieshetty Mahesh, (2010) 11 SCC 226, the High Court, while exercising jurisdiction under Section 482 of the Cr.P.C, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation would not be sustained. 32. In Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673, this Court held:- ‘12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court…’ 33. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, a three-Judge Bench of this Court summarized the law with regard to quashing of criminal proceedings under Section 482 of the Cr.P.C. This Court held:— 4 ‘7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.’ 34. In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, this Court observed:— ‘46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.’ 35. It is a well settled proposition of law that criminal prosecution, if otherwise justified, is not vitiated on account of malafides or vendetta. As said by Krishna Iyer, J. in State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 “if the use of the power for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.” 8. It is clear mandate that the veracity of witnesses has not been taken into consideration for invoking the inherent powers of the High Court under Section 482 Cr.P.C. 5 9. In view of above facts and circumstances of the cases and keeping in mind the law settled on this point, I am of the considered view that the present application deserves no merit and is, accordingly, dismissed. Dated: 08.08.2024 MAA/- (Sanjay Kumar Pachori, J.)
Arguments
Heard Shri Mohd. Aslam, learned counsel for the applicant and Shri Chhavipal Singh, learned A.G.A. for the State. Despite service of notice none has appeared for private opposite party no. 2. 2. The present 482 Code of Criminal Procedure (hereinafter referred “Cr.P.C”) application has been filed to quash the entire proceedings of Special Case No. 2389 of 2023 (State vs. Nafees and others), arising out of Case Crime No. 269 of 2023, under Sections 376(2) (n), 328, 342 of Indian Penal Code (hereinafter referred “IPC”) and Section 5L/6 POCSO Act, Police Station Kotwali Dehat, District Saharanpur as well as order dated 23.10.2023, whereby charge has been framed against the applicant by Additional Sessions Judge, Court No.13/Special Judge POCSO Act, Saharanpur. 3. Brief facts of the case are that the First Information Report dated 09.08.2023 has been lodged by tuition teacher of the victim alleging that applicant and father of the victim committed rape repeatedly giving her 2 intoxicated medicine and when to the victim complained her mother, the mother of the victim threatened her not to disclose it to anyone and on 03.08.2023 at 1.00 P.M. applicant and father of the victim again committed rape with the victim after intoxicating medicine in presence of her mother. Thereafter the victim escaped herself from the clutches of the accused persons and told the whole story to the first informant and persons of the colony and the first informant brought the victim to the Police Station. The local police sent the victim in the custody of the first informant wherein the first informant and person of the colony are giving treatment to the victim. 4. Learned counsel for the applicant submits that the FIR has been lodged after six days of the incident without any explanation of delay. The medical examination report has been got prepared on next date of lodging of the FIR (after about seven days of the incident). No genital or physical injuries have been found on the person of the victim and hymen was found intact. It is further submitted that as per ossification report, the victim was 18 years old on 14.08.2023. The victim is illiterate as per prosecution evidence. 5. Learned counsel for the applicant further submitted that there is contradiction between the statements of the victim with regard to date of birth as she stated that she did not study anywhere but the prosecution filed date of birth certificate as 16.07.2007 and recorded the statement of Headmaster of Primary School, Ugrahu, Vikas Kshetra Punwarka, District Saharanpur on the basis of date of birth certificate the victim was 16 years 01 month and 03 days old. 6. Learned A.G.A. has vehemently opposed the prayer and submits that the victim has constantly stated that the present applicant and father of the victim committed rape with the victim and this is not a stage to check the veracity of the witnesses. 3 7. In Daxaben vs. The State of Gujarat & Ors., 2022 SCC OnLine SC 936 the Supreme Court observed that in exercise of power under Section 482 of the Cr.P.C., the court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence and referred the various judgments in para nos. 28, 31, 32, 33, 34 and 35, which are as follows: “28. In Monica Kumar (Dr.) v. State of U.P., (2008) 8 SCC 781, this Court held that inherent jurisdiction under Section 482 of the Cr.P.C has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.