Saumitra Dayal Singh JUDGMENT
Saumitra Dayal Singh, J.
1. Heard, Sri. I.K. Chaturvedi learned counsel for the petitioner, learned AGA for the State and Sri. Rajesh Yadav learned counsel for the respondent no. 2.
2. The present petition has been filed to set aside the order dated 15.11.2017 passed by the C.J.M., Moradabad in case crime no. 120 of 2014 under Section 376, 323 IPC, P.S. Majhola, District Moradabad and the order dated 27.6.2018 in the revision arising therefrom, passed by the Additional Sessions Judge, Court no. 13, Moradabad in Criminal Revision No. 42 of 2018 (Sakeel and others Vs. State of U.P and others). The petitioners are the accused persons who have been summoned by the order dated 15.11.2017, upon the acceptance of the protest petition filed by respondent no. 2 who is the informant of the case.
3. An FIR had been lodged by the respondent no. 2 on 23.2.2014 alleging commission of offence under Section 342, 376, 312, 506, 323 and 392 IPC against the accused persons. According to the FIR, on 10.3.2011 the petitioners had abducted respondent no. 2 along with her father and confined them at a house situated at Syohara, Jayantipur Mandir Gali (near the Ice-factory), Police Station Majhola, District Moradabad. It was further alleged, during that confinement respondent no. 2 and her father were locked up in two different rooms and that during such confinement, the petitioners and certain unnamed persons repeatedly committed rape on the respondent no. 2. It was then alleged that on 5.5.2011, while the respondent no. 2 and her father were thus under the confinement of the petitioners, they forcibly got executed in favour of Mohd. Afzal Choudhary and Monis (petitioner no. 4), a registered sale deed, by the father of respondent no. 2, of a residential house property identified as property admeasuring 0.40 sq. yards at Syohara, Moradabad. The FIR further alleged that due to repeated rape committed on respondent no. 2, she became pregnant which was forcibly got terminated by the accused persons at a private hospital. Further allegation was made that the accused Sahil tried to subject respondent no. 2 to human trafficking but that she and her old father somehow escaped from the custody of the petitioners. It was also alleged that certain valuables/jewellery of the respondent no. 2 had been snatched by the petitioners and that they had threatened the respondent no. 2 and her father with dire consequences during their confinement and that the accused persons had committed assault many times.
4. As to the delay in lodging the FIR, it was explained that the respondent no. 2 returned to Syohara on 4.12.2012 and that she had submitted an application to the Additional S.P. Rural, District Bijnor on 05.12.2012 and also to the I.G. Police, Bareilly on 12.06.2013. She claimed to have pursued other police authorities as well. It appears that thereafter certain complaint was made to the Director General of Police, Uttar Pradesh, whereafter the FIR came to be lodged.
5. The police upon investigation submitted a final report on 11.6.2014 whereupon protest petition was filed by the respondent no. 2. On that, by order dated 18.9.2015 further investigation was directed by the Chief Judicial Magistrate, Moradabad. Upon such further investigation, another final report was submitted whereupon the second protest petition was filed by the respondent no. 2. It is on such (second) protest petition the learned Chief Judicial Magistrate, Moradabad by his order dated 15.11.2017 rejected the final report and took cognizance of the offence alleged as also summoned the Amir, Gauhar, Adil, Afzal, Monis, Shakeel, Jameel, Vakeel under Section 376, 323 IPC and summoned the said Sahil @ Babli under Section 376, 392 and 323 IPC. The Criminal Revision No. 42 of 2018 filed by the present petitioners against the aforesaid order came to be dismissed by the order dated 27.6.2018 passed by the Additional Session Judge, Court no. 13, Moradabad. Hence this petition.
6. The principle argument advanced by the learned counsel for the petitioner is that the criminal prosecution had been lodged in gross abuse of the process of court and the criminal prosecution if allowed to continue would only defeat the ends of justice. The father of the respondent no. 2 had executed the registered sale deed in favour of some of the petitioners (for valuable consideration). It had been witnessed by two real brothers of the respondent no. 2. That sale deed has yet not been cancelled and no proceeding for its cancellation had yet been instituted by the father of respondent no. 2. The criminal prosecution had been lodged wholly belatedly only to persecute the petitioners and/or to collaterally force the petitioners to surrender their rights under the registered sale deed. In this regard, reference has been made to various other proceedings (civil and criminal) pending between the parties and persons related to them as also to various facts and statements involved in the present case reference to which may be made a little later.
7. The present petition has been opposed by the learned counsel for the respondent no. 2 who would submit that at present by reading the FIR along with the statement of the respondent no. 2 recorded under Section 164 Cr.P.C., the ingredients of the offence alleged are clearly made out. Therefore, in his submission, no further enquiry is required to be made at this stage and the petition deserves to be dismissed. Moreover, it has been submitted that the respondent no. 2 was not only subjected to heinous offence of repeated gang rape but that she was threatened with dire consequences if she dared to report the crime and therefore, the FIR could not be registered for a long period of time. Learned counsel for the respondent no. 2 has also made reference to various documents, circumstances and statements, during the course of his submission.
8. Learned AGA has submitted that the scope for interference, at his stage, is very limited and no finding of fact may be recorded as all rights of the parties may be examined and adjudicated upon during the proceedings in the criminal trial which is yet to commence. At present upon a reading of the F.I.R. allegations and the statement of the victim recorded under section 164 Cr.P.C., the ingredients of the offence are made out and therefore no interference is warranted.
9. There can be no dispute that the scope for interference in such proceedings is limited and has to remain confined to rare cases where without reaching any finding as to the truthfulness or correctness of the allegations made, it appears to the Court that the ends of the justice would be defeated if the proceedings were to be allowed to continue, or if a proceeding needs to be dropped to secure the ends of justice. It is with the aforesaid principle in mind that the undisputed and admitted facts of the case are being taken note of.
10. Upon reading the averments made in the affidavit in support of the present petition and the counter affidavit filed on behalf of the respondent no. 2, admittedly:-
(i) one Mohd. Rizwan (father of opposite party no. 2) and Mohd. Irfan are cousins. Smt. Aqleema Parveen is the wife of said Mohd. Irfan;
(ii) there exists a residential property measuring 0.40 sq. yards at Syohara, Moradabad. Originally, it belonged to Mohd. Rizwan;
(iii) on 28.4.2011, Smt. Aqleema Parveen (wife of Mohd. Irfan), filed an application before the Sub-Registrar, Dhampur complaining that despite the fact that she had been declared the exclusive owner of the said property (under a Hibba-nama executed by Mohd. Rizwan), certain persons being Mohd. Rizwan (father of the respondent no. 2), Khalid and Makdoom (real brothers of respondent no. 2) were seeking to sell that property contrary to decree in O.S. 318 of 2010, passed by the Additional Civil Judge (J.D.), Nagina. Copy of this application has been filed as C.A.-1 to the counter affidavit of the respondent no. 2;
(iv) on 5.5.2011 a registered sale deed was executed by Rizwan (father of the respondent no. 2) in favour of Mohd. Afzal Choudhary and Monis (petitioner no. 4). In that deed two real brothers of the respondent no. 2, namely, Mohd. Khalid and Mohd. Makdoom stood marginal witness;
(v) the said sale deed still stands and has yet not been cancelled. In fact at present it does not appear that the father of respondent no. 2 has instituted any proceeding to cancel that sale deed though its execution is not denied by him. A true photo copy of the sale deed has been annexed by way of Annexure no. 1 to the writ petition.
(vi) arising from disputes over the aforesaid immovable property, an FIR was first lodged alleging offence under sections 147, 336, 448, 504, 506 I.P.C. and 7 Criminal Law Amendment Act, by the said Mohd. Irfan against Rizwan, his two sons Maqdoom and Khalid, as also the petitioners Afzal, Monis, Shakeel, Jameel and Vakeel in case crime no. 257 of 2011.
11. It is stated that the accused persons in the aforesaid case approached this court by means of various proceedings wherein some indulgence was shown to them for the purpose of obtaining bail. It is however relevant that upto this stage, no allegation of offence under section 376 I.P.C. had been made.
12. Also, in the year 2011 itself the said Smt. Aqleema Parveen instituted original suit of 233 of 2011 against Validad, Anzar, Sajid, Rizwan, Khalid, Makdoom, Mohd. Afzal and Mohd. Monis. In that, it was alleged that the said Rizwan Ali (father of the respondent no. 2) had first executed a 'hibba-nama' in her favour. Thereafter, under the influence of certain other persons he had illegally executed the sale deed dated 5.5.2011 contrary to the decree in Original Suit no. 318 of 2010 (Aqleema Parveen Vs. Rizwan Ali) dated 25.8.2010. Such documents have also been annexed with the counter affidavit filed by the respondent no. 2. It is also on record that certain other civil proceedings were instituted by Mohd. Afzal and others against Aqleema Parveen with respect to the property noted above-for cancellation of 'hibba-nama'. However, those proceedings are stated to have been dismissed.
13. Then, on 11.05.2011 Smt. Aqleema Parveen instituted another criminal proceedings against the Rizwan Ali (father of the respondent no. 2) Mohd. Afzal, Mohd. Moonis, Khalid and Makdoom by filing a Criminal Complaint no. 394 of 2011 alleging commission of offence under Sections 420, 467, 468, 471, 120-B IPC on 11.05.2011 with respect to the sale deed dated 5.5.2011 executed by said Rizwan Ali, contrary to the 'hibba-nama' claimed by the said Aqleema Parveen. Admittedly, the petitioners were also summoned on that complaint. Against the summoning, Afzal and Monis (petitioner no. 4) filed Criminal Revision no. 151 of 2012 before the Additional Sessions Judge, Bijnor which came to be allowed by order dated 6.6.2013. However, Rizwan Ali does not appear to have availed any legal remedy against his summoning in that case.
14. While the police had submitted a final report in that case both upon investigation and also after the further investigation (as directed by the C.J.M., Moradabad by order dated 18.9.2015), statements of various persons including Aqleema Parveen as also Rizwan Ali and the respondent no. 2 had been recorded by the police.
15. It is worthwhile to note here that in all the proceedings (civil and criminal) that had been instituted independently by the said Aqleema Parveen, there does not exist any allegation or even a whisper of an allegation as to any offence under section 376 I.P.C. or otherwise having been committed by any of the petitioners on respondent no. 2 or her father. In fact there is no allegation of any threat or coercion practised on the said Rizwan Ali, in any manner. In fact, Smt. Aqleema Parveen made allegations of collusion between her brother-in-law Rizwan Ali, his two sons Makdoom and Khalid and the petitioners with respect to the transaction for sale of the immovable property being residential property measuring 0.40 sq. yards at Syohara, Moradabad.
16. That fact assumes relevance since in the proceedings instituted by the said Smt. Aqleema Parveen who is the paternal aunt of the respondent no. 2 she did not make an allegation of any offence having been committed by the petitioners on respondent no. 2 and Rizwan Ali, however, during the police investigation in the present case, the said Aqleema Parveen adopted a completely new and different stand. She thus supported the FIR allegations of repeated gang rape committed on respondent no. 2. At the same time, in her statement recorded under Section 161 Cr.P.C., she stated that after executing the 'hibbanama' in her favour, her brother-in-law (devar) namely Rizwan Ali became angry with her. She also admitted that after execution of the sale deed, the respondent no. 2 returned to the said Smt. Aqleema Parveen after about one and half year and informed her about the offence of rape committed on her.
17. Then, in his statement recorded under Section 161 Cr.P.C., Rizwan Ali (father of the respondent no. 2) appears to have supported the FIR allegations. During his further statement, he stated because his sons were vagrant and he was afraid they would sell-off his property, he had executed the 'hibbanama' in favour of the wife of his cousin Irfan on a promise made by the latter that he would take care of the Rizwan Ali and his family. He further appears to have stated that he later changed his mind on the advice given by his daughter and therefore executed the sale deed. He also appears to have stated that he lodged the FIR under fear of his cousin brother Irfan. Further, he also appears to have been specifically questioned as to why he chose to remain silent at the relevant time and did not report the heinous crime of repeated gang rape on his daughter that was allegedly committed in a room adjoining the room where he had been lodged by the accused persons. To that question he is stated to have remained silent.
18. The statement of the respondent no. 2 had also been recorded during the investigation. While she supported the FIR allegations, however, upon specific questions being put to her as to the name of the doctor of the hospital where her pregnancy had been forcibly terminated, she claimed ignorance. She also denied having got conducted any medical examination. When questioned as to why she had not raised any alarm at the time when the heinous offence of repeated gang rape was committed on her while her father was in the adjoining room, she chose to remain silent.
19. The sons of the Rizwan Ali who were the marginal witness have denied the occurrence and disputed the FIR allegations.
20. Other than the above, it appears that an ultrasound test was performed on 28.02.2017 in which report it was noted as below:
"Uterus is normal in size, shape and myomatrial cortex tune arair and adenexe are normal, endometrial is liner and 2mm mide no fetal fresh detected at this time."
21. Other than that the medical examination was conducted belatedly. Obviously, no evidence of rape was found then.
22. Considering the above, it is seen that on the one hand, there are allegations against the petitioners of committing most heinous offence of repeated gang rape of respondent no. 2 and at the same time that incident or occurrence has been linked with the execution of the registered sale deed dated 05.05.2011 executed by the father of the respondent no. 2 in favour of the said Afzal Chaudhary and Mohd. Monis, in which the sons of the said Rizwan Ali stood marginal witness. On the other hand, it also stands admitted that with respect to the property claimed to have been thus sold by the father of the respondent no. 2, civil litigation is pending between Rizwan Ali (father of the respondent no. 2) and Aqleema Parveen-the wife of his cousin brother Irfan.
23. Insofar as the said Aqleema Parveen is concerned, while she was clearly in litigation with Mohd. Rizwan arising from the immovable property gifted to her by the latter by a "hibba-nama", however, in none of the proceedings instituted by her against Mohd. Rizwan and some of the present petitioners, did she make any allegation of rape committed by the petitioners or of the abduction of Rizwan and the said respondent no. 2 or of the said Rizwan having been forced to execute that sale deed. On the contrary, she only set up her rights under the 'hibba-nama' executed by the said Rizwan in her favour. She first got a declaration in her favour with respect to the "hibba-nama" and then she has challenged the right of Rizwan to execute the sale deed contrary to the rights vested in her favour under the "hibba-nama". Also, it cannot be lost sight, that the registered sale deed executed in favour of the said Afzal Chaudhary and Mohd. Monis has yet not been cancelled.
24. Also, the said Afzal Chaudhary and Mohd. Moonis had been summoned under sections 420 and 120B IPC at the instance of the Aqleema Parveen in complaint case no. 394/2011 along with the Rizwan Ali. While the said proceedings against the Afzal Chaudhary in the aforesaid complaint case had been dropped by order dated 06.06.2013 passed by the learned Additional Sessions Judge, Court no. 13, Bijnor, Rizwan Ali did not challenge those proceedings instituted by Aqleema Parveen. In the entirety of the case-diary material, chiefly the unexplained delay in lodging the FIR, the complete absence of application u/s. 156(3) Cr.P.C., the inconsistencies in the statements of the respondent no. 2 and the Rizwan Ali as have been noted above. The lack of medico-legal report, it appears that the FIR came to be lodged only in view of the earlier tri-partite civil litigation between Aqleema Parveen, Rizwan Ali, Afzal Chaudhary, Mohd. Monis and some of the accused persons with respect to the house property. In light of the protracted civil and criminal litigation instituted by Aqleema Parveen with respect to the house property-that had been apparently been gifted to her by Rizwan Ali, it appears that the present criminal prosecution has been lodged only to pressure the petitioners to withdraw from the civil proceedings.
25. The criminal prosecution appears to be the exercise only to cause harassment and/or to persecute the petitioners only to achieve the collateral purpose of success in the civil proceedings pertaining to the house property. The stand taken in the counter affidavit and the document annexed there to clearly and undoubtedly bring out the serious civil dispute existing between the parties with respect to the house property.
26. Another aspect of the case which cannot be lost sight of is that a wholly improbable story, to that extent of it being absurd, has been offered by the prosecution. The commission of offence is alleged to have been taken place over a long period of one and a half year from 10.03.2011 to 04.12.2012. The allegation is of commission of most heinous offence of repeated gang rape, yet there does not appear any material to explain why no FIR or complaint was lodged with respect to such heinous offence over a long period of time from 10.03.2011 to 2014. There is absolutely no explanation offered by the respondent no. 2 as to what prevented her from filing any application under Section 156(3) Cr.P.C. Also it remains unexplained as to why there does not exist any medical or other evidence to even prima facie support the allegations made.
27. The Supreme Court in the case of Vineet Kumar and others Vs. State of U.P. and Another, reported in MANU/SC/0351/2017 : AIR 2017 SC 1884 had first considered the earlier decisions in the case of State of Karnataka Vs. L. Muniswami and others, MANU/SC/0143/1977 : 1977 2 SCC 699. Supreme Court in the context of jurisdiction under Section 482 Cr.P.C. observed that such jurisdiction could be exercised to protect the ends of justice that are higher than the ends of law as also that such jurisdiction could be exercised to prevent abuse of process of the court. Specifically referring to the judgment of the Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others, MANU/SC/0115/1992 : 1992 Supp (1) SCC 335, which was held as below:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
28. Thus referring to the case in the judgment in the case on State of Karnataka Vs. M. Devenderappa and another, MANU/SC/0027/2002 : (2002) 3 SCC 89, it was observed that jurisdiction under section 482 Cr.P.C. exists to advance justice and if any attempt is made to abuse that authority so as to produce injustice, the High Court had the power to prevent such abuse and quash the confronted proceeding.
29. In the case of Vineet Kumar and others Vs. State of U.P. and Another (supra), the Supreme Court came to the conclusion that though the FIR allegations in the statement recorded under Section 164 Cr.P.C., if read in isolation brought out the ingredient of the offence alleged, yet in view of the other undisputed and admitted position of facts chiefly initiation of proceedings under Section 138 N.I. Act by the accused persons prior to initiation of Section 138 N.I. Act proceedings by the accused persons against the complainant, her husband and her son as also the other undisputed material that existed on the case-diary, though could not lightly brush away the statement recorded under section 164 Cr.P.C. but the same was required to be considered along with antecedents, facts and circumstances of the case, all of which were undisputed. Then reference was also made to the other material that had come to light during the course of investigation, specifically with respect to the allegation of the offence. On the face of that material it appeared to the Supreme Court that the ends of justice would be defeated if the prosecution were allowed to proceed.
30. In the present case, upon appraisal of all facts and admitted material, it appears, as has been noted above, that the prosecution story represents nothing more than an effort to wriggle out of the registered sale deed executed by the Rizwan Ali (father of the respondent no. 2) in favour of the said Afzal Chaudhary and Mohd. Monis and to thereby escape the civil and criminal consequences being forced against Rizwan Ali by the Smt. Akleema Parveen who claims under a 'hibbanama' executed by the said Rizwan Ali. In view of the inordinate delay in lodging the F.I.R., to allow such prosecution to proceed in the face of the case-diary material as has been noted above and the grave inconsistencies and contradictions that exist there in, would be allow abuse of process of the court and to allow the ends of justice to be defeated.
31. Therefore, the court has no hesitation in allowing the writ petition and quashing the prosecution.
32. The present petition is accordingly allowed.
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