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A.F.R.

Court No. - 70

Case :- APPLICATION U/S 482 No. - 28758 of 2019

Applicant :- Kaleem And 4 Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Atul Kumar

Counsel for Opposite Party :- G.A.

Hon'ble Sanjay Kumar Singh,J.

1.Heard Sri Atul Kumar, learned counsel for the applicants and

Sri Virendra Kumar Maurya, learned Additional Government

Advocate assisted by Sri Prashant Kumar Singh, learned Brief holder

for the State/opposite party no.1. Perused the record with the

assistance of learned counsel for the parties.

2.The applicants have preferred this application for invoking

inherent jurisdiction under Section 482 Cr.P.C. of this Court to quash

the impugned charge-sheet dated 19.05.2019 arising out of case

crime no. 0065 of 2019, cognizance order dated 01.07.2019 and

proceedings of Case No. 1247/9 of 2019 (State Vs. Kaleem and

others), under Sections 376, 504, 506 IPC and 3/4 D.P. Act against

the applicant no.4 and under Sections 504, 506 IPC and 3/4 D.P. Act

against the applicant nos. 1 to 3, Police Station Meerapur, District

Muzaffar Nagar pending before Additional Chief Judicial Magistrate,

Court No.3, Muzaffar Nagar.

3.Filtering out unnecessary details, basic facts of the case in brief

are that the applicant no.1 (Kaleem) is husband, applicant no.2

(Mobeen) is father-in-law, applicant no.3 (Smt. Sayada @ Bhoori) is

mother-in-law of victim Sabnam. On 10.03.2019, Mohd. Iqbal

(brother of victim) lodged First Information Report regarding an

incident dated 6.3.2019 against the accused-applicants registered as

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Case Crime No. 0065 of 2019, under Sections 376D, 506, 504 IPC

and 3/4 D.P. Act at Police Station Meerapur, District Muzaffar Nagar

alleging inter-alia that marriage of his younger sister (victim

Sabnam) was solemnized on 06.03.2019 with the applicant no.1. In

the marriage, about a sum of Rs. seven lakh were spent by his family

members, but the accused-applicants were not satisfied and started

demanding rupees fifty thousand in cash and one Alto Car at the time

of marriage. Anyhow, “bidai” ceremony was performed and Sabnam

was sent to her matrimonial house, but on the nuptial night (first

night of marriage) the accused-applicants entered into the room of

victim Sabnam and started taunting/abusing for not fulfilment of

their demand of dowry by her family members. On resisting by the

victim Sabnam, they in abrasive tone threatened to see her.

Thereafter, Daood (brother-in-law/Jija of the husband of victim)

forcibly committed rape on victim in the first night of her marriage

and therewith Kaleem (husband) following Daood also committed

rape on victim. It is further alleged that after the aforesaid atrocities,

she became unconscious. On the next day in morning, brother of

victim received an information from unknown person that his sister

in not well. On such information, informant (brother of the victim)

alongwith his other family members reached at the matrimonial

house of the victim and she was brought to Vashistha Hospital

situated in Almaspur Chaupala, Muzaffar Nagar in a bad condition

for her treatment. Seeing the crowed collected at the hospital, the

accused persons ran away. Victim on gaining consciousness also told

that her mother-in-law with intention to kill her choked her neck

from Dupatta.

4.The applicants have filed the statement under Section 161

Cr.P.C. of the informant (brother of the victim), in which he has

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reiterated the version of the FIR. Victim Sabnam in her statements

under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. also

supported the prosecution case making allegations as mentioned in

the FIR. Statement under Section 164 Cr.P.C. of victim is being

reproduced herein-below:-

“c;ku 164 lhvkjihlh ihfMrk 'kcue iRuh dyhe fu0 fdFkkSM+k Fkkuk ehjkiqj eq0uxj

o iq=h QS¸;kt fu0 248 dsoyiqjh Fkkuk flfoy ykbu eqt¶Qjuxj mez 27 o"kZ }kjk

l'kiFk C;ku fd;k fd esjh 'kknh fnukad 06-03-2019 dks dyhe ds lkFk gqbZ Fkh 'kknh

esa esjs ekrk firk us djhc 7 yk[k :i;s [kpZ fd;s FksA ijUrqq dyhe mlds firk eksfcu

mldh ek lk;nk o cguksbZ nkÅn 'kknh esa fn;s x;s lkeku ls [kq'k ugha Fks vkSj

fonkbZ ds VkbZe 50 gtkj :i;s udn o xkM+h dh ekax djus yxsA esjs ?kj okyksa us

cgqr le>k;k] ;g yksx eq>s fonk djds ys x;sA tc eSa llqjky igqaph jkr dks esjs

ifr] lkl] llqj o uUnksbZ esjs dejs esa ?kql vk;s vkrs gh bu yksxks us eq>s ngst dk

rkuk ekjk esjh lk;nk xys esa nqiV~Vk Mkydj ekjus dk iz;kl fd;k esjs lkl] llqj

dejs ds ckgj pys x;sA esjs uUnksbZ nkÅn us esjs gkFk cka/k fn;s igys nkÅn us esjs

lkFk cykRdkj fd;k fQj dyhe us cykRdkj fd;k x;kA eS csgks'k gks x;h esjs

?kjokyks us bu yksxksa dks QkSu fd;k ij bu yksxks us mBk;k ughA blfy;s esjs ?kjokys

nwljs fnu llqjky igqap x;s vkSj esjh gkyr ns[kdj eq>s gkfLiVy ys x;sA esjk tsoj]

diM+k lc lkeku llqjky esa gh gS eS viuh ethZ ls c;ku ns jgh gwaA lqudj rLnhd

fd;kA izekf.kr fd;k tkrk gS fd ;g o;ku ihfM+rk ds 'kCnks esa esjs }kjk Loa; vafdr

fd;k x;k gSA ACJ (SD) 2 e/kq xqIrk fnukad 02-04-2019 eqt¶Qjuxja ”

5.On 15.03.2019, victim Sabnam was medically examined,

where her statement was also recorded by the doctor concerned. The

brief statement of the victim as mentioned in the column of

"description of incident in the words of narrator" in the medical

examination report dated 15.03.2019 is reproduced herein-below:-

" 'kknh dh jkr dks igys llqj ,oa lkl vk;s ftUgksus ngst ds fy, MkVk rFkk mlds

ckn vkneh ,oa uUnksbZ us tojnLrh djus dh dksf'k'k djds cykRdkj fd;k tojnLrh

nksuks gkFk cka/k fn, FksA mlds ckn bls [kwu tkus yxk rFkk izkbosV MkDVj ds ;gkW

HkrhZ djds Vkads yxok;s"

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6.The Investigating Officer after investigation submitted charge-

sheet dated 19.05.2019 against the accused Daood under Sections

376, 504, 506 I.P.C. and Section ¾ of Dowry Prohibition Act and

against remaining other co-accused under Sections 504, 506 I.P.C.

and Section ¾ of Dowry Prohibition Act mentioning that since

accused Kaleem is husband of victim, therefore, rape committed by

him, as per prosecution case will not come under the category of

rape, on which, the Magistrate concerned took cognizance on

01.07.2019.

7.Record indicates that in the present case, earlier the victim was

impleaded as opposite party no.2, but later before filing this

application her name was scored out as opposite party no.2 by pen

and mentioned as applicant no.5. Alongwith application, a joint

affidavit of accused-applicant no.1 Kaleem and victim Sabnam has

been filed and in the said affidavit the name of victim has find place

as opposite party no.2.

8.It is submitted by learned counsel for the applicants that:-

(i) The applicants have been falsely implicated.

(ii) The allegations levelled against the accused-applicants in the FIR

as well as in the statements of informant and victim are false and

concocted.

(iii) The statement of the victim under Section 164 Cr.P.C. dated

02.04.2019 was recorded under the influence of her family members.

(iv) Now, the dispute between the parties concerned has amicably

settled outside the Court and compromise deed dated 9.7.2019 has

also been prepared. The affidavit of victim Sabnam and said

compromise deed dated 9.7.2019 have been appended as Annexure

No.6 to the application.

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(v) It is also submitted that the applicant no.1 and victim is living

together as husband and wife, therefore, the impugned charge-sheet

and entire aforesaid impugned criminal proceedings against the

applicants are liable to be quashed.

(vi) Learned counsel for the applicants in support of his submissions

placed reliance on the following judgments:-

(a) Asha and another Vs. State of U.P. and another 2018 (6) ADJ 45.

(b) Vineet Kumar and others Vs. State of U.P. and another 2017 (13)

SCC 369.

(c) Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra

and others AIR 2019 SC 327.

9.Per contra, learned Additional Government Advocate has

vehemently opposed the prayer of the applicants and refuting the

submissions of learned counsel for the applicants submitted that:-

(i) The offence under Section 376 IPC is a serious offence against the

society, therefore, the parties cannot be permitted to make

compromise being non-compoundable offence.

(ii) It is also submitted that the alleged compromise deed dated

9.7.2019 has been prepared after submission of charge-sheet dated

19.05.2019 against the accused persons.

(iii) The said affidavit of compromise deed dated 9.7.2019 are not

part of the case diary, therefore, the same cannot be taken into

consideration at this stage.

(iv) It is also submitted that since the incident took place on the first

night of marriage of the victim, therefore, it cannot be said that the

accused persons have been falsely implicated.

(v) It is vehemently urged that since it is not a simple case of

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matrimonial dispute, but a serious matter where victim has been

raped by her brother-in-law (Jija of husband of the victim) on

wedding night of her marriage as per allegations levelled by the

victim in the present case, therefore, by saying that it is a

matrimonial dispute, the applicant no.4 (Daood) cannot be let off at

this stage from the offence committed by him only on the basis of

alleged compromise. As such the present application is misconceived

and is liable to be dismissed.

(vi) Learned Additional Government Advocate in support of his

submissions placed reliance on the judgment of Apex Court in case

of State of Madhya Pradesh Vs. Laxmi Narayan and others AIR 2019

SC 1296.

10.After having heard the arguments of learned counsel for the

parties concerned, before delving into the matter, it is apposite to

deal the judgments cited on behalf of the parties.

Firstly, I shall deal the judgments relied upon on behalf of the

applicants.

(a) In the matter of Asha and another Vs. State of U.P. and

another 2018 (6) ADJ 45, the facts of the case was that father of the

victim lodged FIR that accused Anand Kumar has enticed away her

daughter aged about 15 years. After investigation, charge-sheet was

submitted against accused Anand Kumar under Sections 363, 366,

376 I.P.C. and ¾ POCSO Act. Criminal Misc. Application under

Section 482 Cr.P.C. was moved by the victim and accused on the

ground that they are husband and wife and victim is residing with her

husband. Father of the victim has lodged the false and fabricated

FIR, because victim on her own free will and volition went in the

company of accused. The victim after running away from her house

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married with accused at Arya Samaj Mandir. The Investigating

Officer in an arbitrary manner without doing fair investigation

submitted charge-sheet. On the said facts that before lodging First

Information Report, parties have already married with consent of

each other and they are major. They are living peacefully as husband

and wife, the High Court took a view that offence of rape or

kidnapping or abduction has not been committed at all, therefore,

criminal proceedings was quashed.

(b) In the matter of Vineet Kumar and others Vs. State of U.P.

and another 2017 (13) SCC 369, the facts of the case was that

accused has made several transactions with the complainant, her

husband and son in the month of May, 2015. Accused gave Rs. 9

lakh to the husband and son of the complainant for business purpose

and agreement dated 29.05.2015 was signed by the husband of the

complainant and one of the accused acknowledging the payment of

Rs. 6 lakh 60 thousand in cash and Rs. 2 lakh 40 thousand by

cheque. Another agreement between the complainant and one of the

accused was entered into on 01.06.2015 wherein it was

acknowledged that complainant and her husband had taken Rs. 7

lakh 50 thousand in cash from the accused. Third agreement was

entered into between the son of complainant and one of the accused

on 31.08.2015 wherein son of complainant acknowledged that his

parents have taken an amount of Rs. 14 lakh 50 thousand.

Complainant and her husband gave cheque of Rs. 6 lakh 50 thousand

to the accused for recovery of amount given by the accused. Later

on, one of the accused filed complaint under Section 138 of

Negotiable Instrument Act against husband and son of the

complainant. Thereafter, on 30.10.2015 complainant filed an

application under Section 156 (3) Cr.P.C. against all three accused

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alleging commission of offence under section 376(d), 323 and 452

IPC. During investigation, complainant refused to her internal

examination and husband also denied for medical examination of his

wife, as much time had been elapsed. The Investigating Officer after

investigation submitted final report as the allegations were found

false. The police also submitted report for initiating the proceedings

under section 182 Cr.P.C. against the complainant. The complainant

moved protest petition, which was allowed by the Magistrate

concerned on 28.05.2016. On the said facts an Application under

Section 482 Cr.P.C. was preferred before the High Court, which was

allowed setting aside the order dated 28.05.2016 directing the

Magistrate to pass fresh order. The Magistrate again vide order dated

03.08.2016 summoned the accused. Revision was filed before the

Session Judge against the order dated 03.08.2016, which was

dismissed vide order dated 22.10.2016. Accused again filed an

Application under Section 482 Cr.P.C. to quash the order dated

03.08.2016, which was refused by the High Court. Aggrieved by the

order of the High Court, accused approached the Apex Court by

filing S.L.P., which has been allowed and criminal proceedings

against the accused was quashed in the light of guideline laid down

under the category no.7 as innumerated in case of State of Haryana

and others Vs. Bhajan Lal and others 1992 SCC (Cr.) 426 considering

that criminal proceedings is manifestly attended with mala fide and

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.

(c) In the matter of Dr. Dhruvaram Murlidhar Sonar Vs. The

State of Maharashtra and others AIR 2019 SC 327, the facts of

the case was that FIR was registered on 06.12.2000 against accused-

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appellant under Sections 376(2)(b), 420 read with Section 34 of the

Indian Penal Code and under Section 3(1)(x) of the SC/ST Act. In the

said case, accused-appellant was serving as a medical officer in the

Primary Health Center and complainant was working as Assistant

Nurse in the same health center. Both accused and complainant on

account of having love affair started residing together. They were in

relationship with each other and they resided some time at her house

and some time at the house of the appellant. When the complainant

came to know that accused-appellant has married with some other

women, then she lodged complaint. The Apex Court on the said fact

has held that there is clear distinction between rape and consensual

sex. It was also held that if the allegations made in complaint are

taken at their face value and accepted in their entirety, they do not

make out a case of rape against accused-appellant, therefore,

complaint registered under Section 376(2)(b) cannot be sustained.

On the said observation, charge-sheet dated 14.06.2001 filed in the

said case was quashed by the Apex Court.

Now Court proceed to deal with the judgment relied upon by the

prosecution.

(a) Three judge Bench of the Apex Court recently on 5.3.2019 in the

matter of State of Madhya Pradesh Vs. Laxmi Narayan and

others AIR 2019 SC 1296 has ruled that the criminal proceedings

for the offence of “rape” cannot be quashed merely on the basis of

compromise made between the victim and offender. The guideline

laid down by the Apex Court in para 13 of the said judgment is

reproduced herein-below:-

"13. Considering the law on the point and the other

decisions of this Court on the point, referred to hereinabove,

it is observed and held as under:

i) that the power conferred under Section 482 of the Code to

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quash the criminal proceedings for the non-compoundable

offences under Section 320 of the Code can be exercised

having overwhelmingly and predominantly the civil

character, particularly those arising out of commercial

transactions or arising out of matrimonial relationship or

family disputes and when the parties have resolved the entire

dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions

which involved heinous and serious offences of mental

depravity or offences like murder, rape, dacoity, etc. Such

offences are not private in nature and have a serious impact

on society;

iii) similarly, such power is not to be exercised for the

offences under the special statutes like Prevention of

Corruption Act or the offences committed by public servants

while working in that capacity are not to be quashed merely

on the basis of compromise between the victim and the

offender;

iv) offences under Section 307 IPC and the Arms Act etc.

would fall in the category of heinous and serious offences

and therefore are to be treated as crime against the society

and not against the individual alone, and therefore, the

criminal proceedings for the offence under Section 307 IPC

and/or the Arms Act etc., which have a serious impact on the

society cannot be quashed in exercise of powers under

Section 482 of the Code, on the ground that the parties have

resolved their entire dispute amongst themselves. However,

the High Court would not rest its decision merely because

there is a mention of Section 307 IPC in the FIR or the

charge is framed under this provision. It would be open to

the High Court to examine as to whether incorporation of

Section 307 IPC is there for the sake of it or the prosecution

has collected sufficient evidence, which if proved, would lead

to framing the charge under Section 307 IPC. For this

purpose, it would be open to the High Court to go by the

nature of injury sustained, whether such injury is inflicted on

the vital/delegate parts of the body, nature of weapons used

etc. However, such an exercise by the High Court would be

permissible only after the evidence is collected after

investigation and the charge sheet is filed/charge is framed

and/or during the trial. Such exercise is not permissible

when the matter is still under investigation. Therefore, the

ultimate conclusion in paragraphs 29.6 and 29.7 of the

decision of this Court in the case of Narinder Singh (supra)

should be read harmoniously and to be read as a whole and

in the circumstances stated hereinabove;

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v)while exercising the power under Section 482 of the

Code to quash the criminal proceedings in respect of non-

compoundable offences, which are private in nature and do

not have a serious impart on society, on the ground that

there is a settlement/compromise between the victim and the

offender, the High Court is required to consider the

antecedents of the accused; the conduct of the accused,

namely, whether the accused was absconding and why he

was absconding, how he had managed with the complainant

to enter into a compromise etc."

11.In view of aforesaid discussions, it is apparent that the

judgments relied upon on behalf of the accused-applicants are not

helpful to the applicants as the aforesaid cases are distinguishable on

the facts, as such the same are not applicable in the present case. Here

it is apposite to mention that even one additional or different fact may

make big difference between the conclusions in two cases and blindly

placing reliance on a decision is never proper. It is trite law that each

case depends on its own facts and a close similarity between one case

and another is not enough because even a single significant detail

may alter the entire aspect. Every case has to be decided on its own

facts and no hard and fast rule can be laid down as regards the cases,

which deserve quashing by the High Court in exercise of power u/s

482 of the Code of Criminal Procedure. If, considering the special

facts of a case, the court decides to quash the charge-sheet on the

basis of compromise in a particular case, that ipso facto does not

justify quashing of the charge-sheet in every other case involving the

commission of an offence punishable under the same provision of

law or with equal or even lesser punishment. The nature of the

offence than in fact is more important than the punishment prescribed

for it.

12.In Bodhi Sattwa Gautam Vs. Subhra Chakraborty, AIR

1996 SC 922, the Hon'ble Supreme Court observed, inter alia, as

under:-

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"Unfortunately, a woman, in our country, belongs to a

class or group of society who are in a disadvantaged

position on account of several social barriers and

impediments and have, therefore, been the victim of

tyranny at the hands of men with whom they, fortunately,

under the Constitution enjoy equal status. Women also

have the right to life and liberty; they also have the right

to be respected and treated as equal citizens. Their honour

and dignity cannot be touched or violated. They also have

the right to lead an honourable and peaceful life.

Women, in them, have many personalities combined. They

are mother, daughter, sister and wife and not play things

for centre spreads in various magazines, periodicals or

newspapers nor can they be exploited for obscene

purposes. They must have the liberty, the freedom and, of

course, independence to live the roles assigned to them by

nature so that the society may flourish as they alone have

the talents and capacity to shape the destiny and

character of men anywhere and in every part of the world.

Rape is thus not only a crime against the person of a

woman (victim), it is a crime against the entire society. It

destroys the entire psychology of a woman and pushes her

into deep emotional crisis. It is only by her sheer will-

power that she rehabilitates herself in the society which,

on coming to know of the rape, looks down upon her in

derision and contempt. Rape is, therefore, the most hated

crime. It is a crime against basic human rights and is also

violative of the victim's most cherished of the

Fundamental Rights, namely, the Right to Life contained

in Article 21. To many feminists and psychiatrists, rape is

less a sexual offence than an act of aggression aimed at

degrading and humiliating women. The rape laws do not,

unfortunately, take care of the social aspect of the matter

and are inept in many respects."

13.Sexual offences constitute an altogether different class of crime

which is the result of a perverse mind. By their very nature these

crimes cannot be treated at par with matrimonial offence. Sexual

violence apart from being a dehumanizing act is an unlawful

intrusion of the right of privacy and sanctity of a female and is a

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serious blow to her supreme honor offending her self-esteem and

dignity. Allowing quashing of charge-sheet, pursuant to a

compromise, will, in such cases, only embolden the perpetrators of

such crimes, which otherwise are on the increase, in society. If the

accused in such a case is an affluent person and the prosecutrix

comes from a socially or economically weaker strata of the society,

quashing in such a case would only encourage commission of such

offences, as the accused, using his money power or otherwise, may

be able to induce the prosecutrix/victim to enter in to settlement with

him and then seek quashing of criminal proceedings, on the strength

of that settlement.

14.The present case, in hand, is not a simple case of matrimonial

dispute, but it is aggravated form of cruelty, because as per the

prosecution case bride (victim) has been forcibly raped by Jija of her

husband and thereafter by her husband on her first night of marriage

in barbarian manner in her matrimonial home on account of non

fulfillment of demand of dowry, which is a serious offence, which

suffocate the breath of life and sully the reputation of the victim.

The rape is non-compoundable offence and it is an offence against

the society, therefore, it is not a matter to be left for the parties to

make compromise and settle the issue outside the Court. Though

except the offence under Section 376 I.P.C. other sections of I.P.C.

are compoundable, but it is not necessary that in all such cases, the

consent given by the victim for compromising the case is a genuine

consent. Possibility of giving consent under compelling

circumstances against the wishes of the victim cannot be ruled out.

There is every possibility that victim might have been pressurized by

the accused persons by different means compelling her to opt for a

compromise. The Court cannot always be assured that the consent

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given by the victim is a genuine consent. The act and conduct of the

accused-applicants in the present case are against the civilized

norms. Such offences have serious impact on society and are distinct

from other matrimonial offences, where parties have resolved their

dispute and because of compromise between the victim and offender,

possibility of conviction is remote and bleak. Genuineness of the

compromise, which is not a part of the case diary or the prosecution

case, cannot be adjudicated at this stage in the present application,

which cannot be more appropriately gone into by the trial court at the

appropriate stage.

15.In the light of above discussion and after elaborate and

wholesome treatment of the issues as laid down by the Apex Court

recently in case of Laxmi Narain (supra), I do not find any merit in

the present application. The relief as sought by the accused-

applicants cannot be granted under the facts and circumstances of the

case. This Court is of the view that it is well settled that the

appreciation of any foreign document, which is not part of the case

diary is a function of the trial court at the appropriate stage. It is also

settled by the Apex Court in catena of judgments that the power

under Section 482 Cr.P.C. at pre-trial stage should not be used in a

routine manner, but it has to be used sparingly, only in such a

appropriate cases, where uncontroverted allegations made in FIR or

charge-sheet and the evidence relied in support of same do not

disclose the commission of any offence against the accused.

Genuineness or otherwise of the allegation cannot be even

determined at this pre-trial stage.

16.In view of above, the impugned criminal proceeding under the

facts of this case cannot be said to be abuse of the process of the

Court. There is no good ground to invoke inherent power under

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Section 482 Cr.P.C. by this Court. Hence, criminal proceedings

against the applicants is not liable to be quashed. As a fallout and

consequence of above discussion, the relief as sought by the

applicants through this application is refused.

17.The instant application lacks merit and is, accordingly,

dismissed.

18. Office is directed to communicate this order to the concerned

court below within two weeks.

Order Date :- 22.8.2019

AK Pandey