Jeewan Lal v. State Of U.P. Thru. Addl. Chief Secy

Heard learned counsel for the applicant and learned AGA for the State. The instant application under Section 482 Cr.P.C./Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS") has been filed by the applicant for quashing of the summoning order dated 21.06.2019 under Sections 376-D, 504 & 506 IPC, non bailable warrant dated 06.05.2024 issued by the learned court of Civil Judge (SD) (FTC) and charge sheet dated 04.01.2017 bearing no. 01 of 2017 under Section 504 & 506 IPC as well as entire criminal proceedings of case no. 7329 of 2023 (State vs. Bharat Chandra and Anr.) arising out of case crime no. 0946 of 2016, P.S. Gauriganj, District Amethi. Learned counsel for the applicant has submitted that an FIR dated 28.10.2016 has been lodged by the respondent no. 2 under Sections 376, 504 & 506 IPC against the applicant and another co-accused. In the said FIR, the respondent no. 2 has alleged the date of incident as 17.07.2016. Against the said FIR, the applicant had approached this Court by filing W.P. No. 27295 (MB) of 201, in which an order has been passed on 17.11.2016, whereby the arrest of the applicant and the other co-accused person has been stayed on the ground that the date of incident as alleged in the FIR i.e. 17.07.2016 on that date, the 13 year old daughter of the applicant has expired. It is further submitted that even in the statement under Section 161 Cr.P.C. recorded on 07.11.2016, the respondent no. 2 had given the date of occurrence of the incident as 17.07.2016 but when this fact has been brought to the notice of this Court by filing a criminal writ petition, as mentioned above, in which on 07.07.2016, the interim order has been granted in favour of the applicant and on the very same day, the statement of respondent no. 2 was recorded under Section 164 Cr.P.C. where she had changed the date of occurrence of the incident from 17.07.2016 to 07.07.2016. It is further submitted that in the case pending before the learned trial court, the charge-sheet was filed by the Police under Sections 504 & 506 IPC against the applicant and other accused person but the Additional Chief Judicial Magistrate, while taking cognizance had added Section 376-D IPC also which is without jurisdiction as the trial court cannot made any addition of the Section at the time of taking cognizance under Section 119 Cr.P.C. and in support of his submission, learned counsel for the applicant has relied upon the judgment of this Court dated 08.05.2024 passed in bunch of criminal appeals, the leading one is CRIMINAL APPEAL No. - 10230 of 2023 (Smt. Usha vs. State of U.P. and Anr.). The relevant extract i.e. paragraph 38 of the same is quoted hereinbelow:- "38. This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty- bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position." Learned AGA is unable to dispute the submissions raised by learned counsel for the applicant particularly, the judgment relied by him. The matter requires consideration. Issue notice to respondent no. 2. Steps be taken within seven working days. List this case in the week commencing 28.04.2025. Till the next date of listing, the proceedings of case no. 7329 of 2023 (State vs. Bharat Chandra and Anr.) arising out of case crime no. 0946 of 2016, under Sections 376, 504 & 506 IPC, P.S. Gauriganj, District Amethi, shall remain stayed. Order Date :- 20.3.2025 Nitesh