C482/1030/2013 of Gulab Singh Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Miscellaneous Application No. 1030 of 2013(Under Section 482 CrPC)

Gulab Singh

…... Applicant

Versus

State of Uttarakhand ….…Respondent

Mr. Harshpal Sekhon, Advocate, for the accused applicant. Mr. K.S. Rawal, Brief Holder, for the State.

Hon’ble N.S. Dhanik, J.

This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred to quash the cognizance order dated 11.12.2007 passed by the Judicial Magistrate, Kashipur, Udham Singh Nagar, in Criminal Case No. 246 of 2013 (Old No. 137 of 2008) under Section 313 IPC, State v. Gulab Singh.

Facts, in brief, are that the prosecutrix lodged First Information Report on 30.7.2007 with PS Jaspur against one Bhim Singh alleging that he had been committing rape on her since about last one year and threatening her that he would kill her father and brothers if she would disclose it to anyone. Pursuant to this FIR, case for the offences under Sections 376/506 IPC was registered against the accused Bhim Singh. After completing the investigation, the police filed chargesheet against the accused Bhim Singh. During the course of investigation, statement of the prosecutrix was recorded under Section 161 CrPC, wherein she reiterated the averments made in the FIR. Thereafter in her 164 CrPC statement, the prosecutrix stated on account of her repeated rape by the accused Bhim Singh, she became pregnant and thereafter the

accused took her to the clinic of the present accused applicant and got her pregnancy terminated without her consent.

It is on the basis of the aforesaid 164 CrPC statement of the prosecutrix, the police conducted the investigation and filed separate chargesheet against the present accused applicant for the offence under Section 313 IPC, whereupon the impugned cognizance order was passed.

Heard learned Counsel for the parties and perused the materials available on the record.

Admittedly, after the trial, the main accused Bhim Singh has been acquitted by the Trial Court. It is also undisputed that the present applicant Gulab Singh was not named in the FIR and prosecutrix named him for the first time in her 164 CrPC statement. It is also fact that the in her deposition before the Trial Court, the prosecutrix denied the contents of the FIR. Prosecutrix also denied that the accused applicant compulsorily aborted her fetus. She has even denied that the main accused Bhim Singh ever committed rape on her. Prosecutrix has also denied her 164 CrPC statement and stated that her statement under Section 164 CrPC was never recorded. Father and mother of the prosecutrix who have been examined as PW2 and PW3 respectively before the Trial Court and they have also not supported the prosecution story and declared hostile.

Learned Counsel for the accused applicant argued that it is evident from the evidence adduced during the course of trial of the main accused, that the accused persons have been falsely implicated and even

the main accused Bhim Singh has been acquitted by the Trial Court. He argued that even the prosecutrix denied that the accused applicant compulsorily terminated her pregnancy. Learned State Counsel also does not seriously oppose the prayer of the applicant.

Hon’ble Apex Court in Prashant Bharti v. State of NCT of Delhi, (2013) 9 SCC 293, has observed that in order to determine the veracity of prayer for quashing the criminal proceedings raised by an accused under Section 482 CrPC, the High Court should analyze (i) whether the material relied upon by the accused is sound, reasonable and indubitable; (ii) whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint; (iii) whether the material relied upon by the accused cannot be justifiably refuted by the prosecution/complainant; and (iv) whether the trial would result in an abuse of process of the court and hence, would not serve the ends of justice? If the answer to all these questions is in affirmative, the Court should quash the proceedings by exercising its power under Section 482 CrPC.

Considering overall facts and circumstances of the case in hand, as discussed hereinabove, I am of the opinion that prima facie case is not made out against the accused applicant and that continuance of the criminal proceedings will be futile exercise and it would not lead to meet the ends of justice. Hence, in the given facts and circumstances of the case, this Court has absolutely no doubt that even if the impugned criminal proceeding against the accused applicant is permitted to continue, the ultimate

consequence of the trial shall be the acquittal or dismissal of the indictment of the accused applicant.

Consequently, the present C482 petition is allowed. Cognizance order dated 11.12.2007 passed by the Judicial Magistrate, Kashipur, Udham Singh Nagar and the entire proceedings of Criminal Case No. 246 of 2013 (Old No. 137 of 2008), under Section 313 IPC, State v. Gulab Singh, are hereby quashed. Inform the Court concerned accordingly.

(N.S. Dhanik, J.) 03.5.2019

Prabodh