Sadab vs State of U. P. - 2023 Supreme(All) 131

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 131

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SAMEER JAIN, J.
Sadab - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 29523 Of 2022
Decided On : 28-01-2023

Advocates Appeared:
For the Applicant : Akhilesh Kumar Mishra
For the Opposite Party : Syed Shahnawaz Shah.

Headnote:
Indian Penal Code, 1860 – Section 376, 323, 506, 498A – Criminal Procedure Code, 1973 – Section 161, 164, 173(2), 190, 190(1)(b), 173(2), 482 – Muslim Women (Protection of Rights on Marriage) Act, 2019 – Quashing order – Offence Punishable – First Information Report – Committed rape – Charge-sheet – Cognizance of offences by Magistrates – Punishment for voluntarily causing hurt – Punishment for criminal intimidation – Examination of witnesses by police – Recording of confessions and statements – Whether any offence under Section 376 IPC against applicant is made out and not at time of taking cognizance – Held, Court after considering dictum of Constitution Bench in case clearly held that Magistrate is fully empowered to disagrees with police report and he can independently apply his mind and can take cognizance even for such offences, in which, charge-sheet was not submitted if from perusal of charge-sheet i.e. police report submitted under Section 173(2) Cr.P.C. he arrives at conclusion that such offences also made out – Similar import is also of judgment of Apex Court in case – Court in case only after perusing judgment of Apex Court passed held that Magistrate is not empowered to add or subtract any section in charge-sheet, therefore, this case will be of no help for applicant as at time of making such observation, learned Single Judge of this Court did not discuss law laid down by Constitution Bench in later part of judgment discussed observation made by Constitution Bench but with regard to different question to summon additional accused – Ordered Accordingly.

JUDGMENT :

[Sameer Jain, J.]

1. Heard Sri Akhilesh Kumar Mishra, learned counsel for the applicant, Sri Syed Shahnawaz Shah, learned counsel for the opposite party no.2 and Sri Varun Kumar Agnihotri, learned Brief Holder for the State.

2. By way of present application, applicant made a prayer to quash the order dated 10.01.2022 passed by Civil Judge Junior Division FTC-II/Judicial Magistrate, Hapur passed in Case No. 14536 of 2021 arising out of Case Crime No. 264 of 2021, under Sections 498A, 323, 506, 376 IPC, Police Station Dhaulana, District Hapur by which, Magistrate summoned the applicant under Section 376 IPC too in spite of the fact that charge-sheet was submitted against him only under Sections 498A, 323, 506 IPC.

Factual Matrix

3.1 Applicant is brother-in-law (Devar) of opposite party no.2. On 29.06.2021 opposite party no.2 lodged FIR of the present case under Section 376, 323, 506, 498A IPC and ¾ The Muslim Women (Protection of Rights on Marriage) Act, 2019 at Police Station Dhaulana, District Hapur at Case Crime No. 0264 of 2021 against applicant and others including her husband and mother-in-law.

3.2 According to the FIR on 27.06.2021 at about 11 PM applicant entered into the room of opposite party no.2 and on the point of knife he committed rape with her in absence of her husband and when she made complaint with her husband and his family members then they along with the applicant assaulted her. It is further alleged in the FIR that the husband of opposite party no.2 also verbally gave her triple talaq.

3.3 After registration of the FIR, investigation was commenced and during investigation the statement of opposite party no.2, the victim of the case, was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. and in both the statements she reiterated the version of the FIR and stated that applicant i.e. her brother-in-law (Devar) on 27.06.2021 at about 11 PM on the point of knife committed rape with her in her room in the absence of her husband.

3.4 Therefore, in the FIR as well as in the statements of victim (opposite party no.2) recorded under Section 161 Cr.P.C. and 164 Cr.P.C. there is allegation that applicant on 27.06.221 at about 11 PM on the point of knife committed rape with her.

3.5 During investigation, Investigating Officer recorded the statements of some other witnesses and thereafter on 28.11.2021 submitted charge-sheet against the applicant and other accused persons. The charge-sheet was filed against the applicant under Sections 323, 506, 498A IPC and no charge-sheet was filed against him under Section 376 IPC.

3.6 After submission of the charge-sheet, opposite party no.2, the informant and victim of the present case on 18.12.2021, moved an application before the Magistrate concerned with a prayer that in view of the FIR and her statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. applicant should also be summoned under Section 376 IPC. On 10.01.2022, learned Magistrate allowed the application moved by opposite party no.2 and after taking cognizance summoned the applicant under Sections 498A, 323, 506, 376 IPC. Thus, learned Magistrate also summoned applicant under Section 376 IPC along with other offences although charge-sheet was not filed against him under Section 376 IPC.

3.7 Hence, the present application.

Submission on behalf of the applicant

4. Learned counsel for the applicant submits that the order dated 10.01.2022 passed by the Magistrate is illegal and without jurisdiction and he was not having any authority to either add or subtract any section in the charge-sheet. He placed reliance on the judgment of the Apex Court passed in the case of State of Gujarat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659 and submitted that in view of the law laid down by the Apex Court in the case of Girish Radhakrishnan Varde (supra) applicant cannot be summoned under Section 376 IPC as no charge-sheet was filed against him under Section 376 IPC. He further submits, in view of the law laid down in G