Wednesday, June 7, 2023

Allahabad High Court dismisses petition challenging legality of rejecting protest application of victim

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The Allahabad High Court has dismissed the petition challenging the legality of rejecting the protest application of the victim by accepting the closure report of the CBI against the rape accused.

A Single Bench of Justice Samit Gopal passed this order while hearing an application under section 482 filed by Dheeraj Jindal.

The application U/S 482 Cr.P.C has been filed by the applicant- Dheeraj Jindal with the following prayer:-

“It is, therefore, most respectfully prayed that the Court may graciously be pleased to allow this application and quash the impugned order dated 04.06.2019 (Annexure No 10) passed by Ld Spl Judicial Magistrate (CBI), Ghaziabad in connection with and arising out of Criminal Case (FR) No 5 of 2016 (arising out of Case Crime No. RC No 02(S)/2014/SC-1/New Delhi) as well as the impugned order dated 10.12.2019 (Annexure No 17) passed by Ld Spl Judge, Anti-corruption, CBI, Ghaziabad in Criminal Revision No 248 of 2019 as both the aforesaid impugned orders are improper, illegal ad amounts to a clear abuse of the process of the court and consequently, direct the Ld Spl Magistrate to take cognizance of the offences based upon the evidence appended with and emerging out of the Final Report/Closure Report submitted by the CBI and summon the accused persons (OP No 2 & 3) to face trail before competent court of law otherwise the informant-applicant shall suffer irreparable loss.”

The facts of the case are that a first information report was lodged on 02.06.2014 as Case under Sections 458, 328, 354, 376, 323, 324, 307 I.P.C by Dheeraj Jindal s/o Vinay Kumar Jindal against Gopal Gupta s/o Krishna Gupta and Pankaj Gupta s/o Ram Pratap Gupta with the allegations that his sister / victim is posted in Aligarh as Additional Civil Judge (S.D).

She lives alone in Judges Compound. On 02.06.2014 at about 12.30 hours Gopal Gupta and Pankaj Gupta came inside the house of his sister by taking the route from the roof. The grill of the roof and the bolt of the door is loose and after shaking the door for 3-4 times the bolt gets broken. There is a curtain for A.C. On entering inside the room they sprayed HIT on her face due to which she felt some unconsciousness and then the said persons pressed her mouth and caught hold of her hand. On opposing it she was beaten and her clothes were torn. They tried to commit rape upon her. Her face was tied with a dupatta so that she may not be able to shout.

On further resisting it her legs, forearm, abdomen and chest was scratched with a pointed knife. While going back the said person extended a threat to life and opened the bottle of HIT and poured it in her mouth forcibly due to which she became unconscious. Then they ran away. In the morning persons of the colony took her out from the house and admitted her in a hospital and informed him. His sister is terrified because of the incident. After regaining consciousness she told some facts about the incident on the basis of which he has come to lodge a report. There is a family dispute going on with the accused since before. His report be lodged and action be taken.

The victim was medically examined at J.N Medical Hospital, Aligarh on 02.06.2014 at 10.05 am and the doctor found her general condition to be stable. On her internal examination no injury was found. On physical examination multiple scratch marks were found on the breasts, abdomen, upper limb, both thighs and legs. The patient did not report any history of ingestion of any poison.

In the meantime, the accused persons filed a writ petition being Criminal Misc Writ Petition for quashing of the first information report and stay of arrest therein which was heard by a Division Bench of this Court and vide order dated 12.09.2014 the matter was transferred to the C.B.I for its investigation.

The C.B.I took up the case and lodged a report a First Information Report under Sections 458, 328, 376, 354, 376, 323, 324 & 307 I.P.C After investigation a final report under Section 173 Cr.P.C dated 30.03.2016 / closure report was filed by the C.B.I giving their opinion that the investigation conducted has concluded and the allegations made by the complainant against the accused Gopal Gupta and Pankaj Gupta could not be sustained. 

Upon a notice to the informant on the final report / closure report he filed a protest petition dated 19.08.2016 before the concerned court objecting the filing of final report / closure report with the prayer that the same be rejected and the court may take cognizance of the offences which are prima facie appearing to have been committed by the accused persons against the victim / prosecutrix and summon them to face trial.

An objection dated 27.10.2016 to the said protest petition was filed by the C.B.I before the trial court. Vide order dated 04.06.2019 the trial court rejected the protest petition of the informant dated 07.10.2016 and the closure report of the C.B.I was accepted. A challenge to the order dated 04.06.2019 was made by the first informant in Criminal Revision before the Special Judge, Anti Corruption C.B.I, Ghaziabad.

A written objection dated 14.08.2019 was filed by the C.B.I in the same. An additional affidavit dated 27.08.2019 was filed by the first informant thereupon. Against the same an additional objection affidavit dated 25.09.2019 was filed by the CBI. A second additional affidavit on behalf of the informant dated 04.10.2019 was filed before the Revisional Court against which a reply dated 16.10.2019 was filed by the CBI. The said revision was then dismissed by the revisional court vide judgment & order dated 10.12.2019.

The application U/S 482 Cr.P.C has thus been filed before the Court challenging the order dated 04.06.2019 passed by the trial court and the judgement and order dated 10.12.2019 passed by the revisional court in the criminal revision with an additional prayer that a direction be issued to the trial court to take cognizance of the offence based upon the evidence in the matter and summon the accused persons to face trial.

The Court observed that,

After having heard the counsels for the parties and perusing the records, it is evident that the order impugned dated 04.06.2019 accepting the final report and rejecting the protest petition is an order considering the matter in detail. The trial court has meticulously gone through the entire investigation and has then come to the conclusion that the closure report be accepted and has as such accepted it. The revisional court while exercising powers of revision has by a detailed judgement and order dated 10.12.2019 considered the matter in detail and also considered the law on the subject and then dismissed the said revision. The reasons as given in the impugned order of the trial court dated 04.06.2019 and in the order dated 10.12.2019 are on the basis of material on record and are cogent & well considered reasons.

The records reveal that there has been bad blood between the parties and due to the same there are litigations going on between them in which even the victim is involved. The story as a whole as brought out in the case as stated in the first information report by the applicant is different to that as has been stated by the victim in her statement recorded u/s 161 CrPC and 164 CrPC. The story regarding commission of rape does not find its place in the first information report which subsequently is stated to have been committed in the statement of the victim recorded u/s 161 CrPC and 164 CrPC. The medical evidence does not corroborate with the allegation of rape as the doctor did not find any corresponding injury on her private parts. In so far as the allegation of the accused persons tearing the clothes of the victim are concerned, the Forensic Science Lab has stated of the clothes worn by her to have been cut by a sharp object like scissor or knife. There was no opinion of the same being found to be torn.

In so far as the forcible ingestion of HIT poison is concerned, the doctor medically examining victim did not find any symptoms of it but on reevaluating the history of the patient after sometimes has noted that there was no history of any ingestion of any poison and the patient herself now refuses any ingestion of any poison. The same would go to show that the victim had not been consistent in so far as the alleged allegations are concerned. Even there has been improvement in the prosecution case after lodging of the first information report by adding the incident of rape. The accused persons were subjected to a polygraph test and they denied their involvement which was opined to be truthful. There is nothing on record and even there is no reason to disbelieve the same. The evidence regarding location of the accused persons as has been collected through electronic surveillance by obtaining the CDRs would also go to show that their locations were found at different places which would also raise suspicion with regards to prosecution version of their being present at the place of occurrence and committing the incident as stated.

“In view of the same, the Court comes to a conclusion that the trial court did not commit any error, irregularity or illegality in accepting the final report / closure report rejecting the protest petition and passing of the order dated 04.06.2019 and also further the revisional court did not commit any irregularity or illegality in dismissing the revision and passing the judgement and order dated 10.12.2019. The courts concerned did not overstep in their jurisdiction while deciding the issues before them”, the Court further observed while dismissing the petition. 

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