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Allahabad High Court denies relief to woman accused of implicating men under rape charges

The Allahabad High Court has dismissed a petition seeking quashing of the FIR registered at Gorakhpur’s Cantt Police Station against Nafisa Gang, accused of extorting money from people by implicating them under rape charges and under the SC/ST Act.

The Division Bench of Justice Anjani Kumar Mishra and Justice Gajendra Kumar passed this order while hearing a petition filed by Nafisa and 4 Others.

The petition has been filed on behalf of the petitioners with a prayer to quash the FIR dated 07.08.2022 giving rise to Case under Sections 384, 420, 195, 506, 120-B, 211 IPC, Police Station-Cantt, District-Gorakhpur as well as not to arrest the petitioners in pursuance of the impugned FIR.

Prosecution story is as follows: Petitioner no 1 (Nafisa) is leading a Gang as “Nafisa Gang” and in her team, there are five other members (co-accused) namely, Bindrawati (petitioner no 2), Soni (named accused in the impugned FIR), Aarti (petitioner no 3), Indrawati (petitioner no 4) and Tara Chauhan (petitioner no 5) are the Members of the said Gang and the aforesaid gang is being guided/protected by co-accused, namely, Madhav Tiwari, Advocate (named accused in the impugned FIR).

It has further been alleged that aforesaid Gang is involved in filing the several vague Applications under Section 156(3) CrPC/complaint cases as well as FIRs regarding gang rape and various Sections of IPC & SC/ST Act against several innocent persons and by lodging the same, they used to abstract money.

Counsel for the petitioners submitted that they are innocent and have been falsely implicated in the case due to ulterior motives. The case is nothing but a counterblast of earlier cases, lodged by the petitioners at various points of time against respondent no 4 and other accused persons and only with a view to mount pressure upon the petitioners and compromise in the earlier matters, a present FIR has been lodged.

Even in an Application under Section 156(3) CrPC moved by the petitioner no1 against respondent no 4/informant (Khalid @ Jiaurrahman) and others regarding an incident, which is said to have taken place on 04.09.2016 at 10:00 a.m, as the aforesaid accused persons were pressurising upon the petitioner no 1 to compromise the aforesaid case, and when she denied the same, then all the accused persons (respondent no 4 and other co-accused persons) entered inside her house forcibly and brutally beaten her with ‘lathi-danda’ and tore her clothes, due to which, she received grievous injuries.

The said application was treated as a complaint case on 05.01.2017, and, thereafter, statements of the witnesses under Section 200 and under Section 202 CrPC were recorded and the accused persons including the informant were summoned by the court below on 28.08.2019.

Respondent no4/informant and his associates are persons of criminal nature and on several occasions, they had committed serious crime, for which, FIRs had been lodged by the petitioners against them. Petitioners allege false implication. Petitioners never tried to blackmail any person and there is no gang as has been alleged by the respondent no 4 in the impugned FIR. There is no cogent evidence available on record against the petitioners so as to implicate them in the case.

Per contra, counsel for the respondents vehemently opposed the contentions aforesaid and submitted that petition itself is not maintainable under Article 226 of the Constitution of India.

It is pointed out that the conduct of the petitioners is required to be seen in the matter.

It has further submitted that informant/respondent no 4 has been falsely implicated by the petitioners in several cases as has been narrated in the memo of the writ petition and even in one case registered as Case, Final Report has also been submitted by the Investigating Officer concerned, thereafter, a protest petition was filed by the petitioner no1 and the said protest petition was allowed and Final Report bearing was rejected by the court below and the same was treated as a complaint case on 03.03.2020.

Counsel for the respondents has further submitted that investigation is yet to be carried out in the matter.

The Court observed that,

Considering the facts and circumstances of the case and having heard counsel for the parties and after perusal of the dictum by the Supreme Court, it is apparently clear that no such orders for not arresting or not taking any coercive action can be passed in the pending investigation into the matter.

The petitioners are having a remedy to approach the concerning Courts by filing an anticipatory bail application under Section 438 of CrPC and, thereafter, can take a recourse under Section 482 of CrPC wherein the High Court is having an inherent power for quashing of FIR but in the case without following the dictum of the Supreme Court, the petition under Article 226 of the Constitution of India has been filed seeking quashing of FIR as well as staying the arrest of the petitioners, alleging that the petitioners are unnecessarily being harassed. However, the fact remains that bare perusal of the FIR which has been registered against the petitioners prima facie makes out a cognizable case for which investigation is required in the matter.

In the case, it is evident from the impugned FIR as well as complaint so filed by the respondent no 4 on 25.04.2022, wherein after direction of respondent no 2/Senior Superintendent of Police, Gorakhpur, the concerned Circle Officer, after investigating the matter, had submitted his report on 29.05.2022/ 30.05.2022 stating therein that “petitioners are involved in running a Gang in the name of “Nafisa Gang” under the guidance of Madhav Tiwari, Advocate and is a active Gang”, as such, prima facie, the involvement of the members of the gang as has been alleged in the complaint dated 25.04.2022 under the protection of Madhav Tiwari, Advocate is made out. In such circumstances, when clearly a case of cognizable offence is made out no such blanket orders can be passed. The authorities are required to complete an investigation into the matter and persons showing themselves to be an innocent person can take a recourse under the relevant provisions of criminal law that is under Section 438 of CrPC for seeking an anticipatory bail in the matter.

The Supreme Court in the case of Nivedita Sharma Vs Cellular Operators Association of India; (2011) 14 SCC 337, has held that “where hierarchy of appeals was provided by the statute, a party must exhaust the statutory remedies before resorting to writ jurisdiction for relief, but in spite of having alternative remedy the writ petition has been preferred seeking multiple reliefs, therefore, the petition was not entertained being devoid of merits is not maintainable and is dismissed.”

“In the matter, without exhausting the remedy of seeking anticipatory bail under Section 438 of CrPC or approaching this Court by way of filing a petition under Section 482 of CrPC petition seeking quashing of an FIR or a criminal proceedings, he has taken a recourse to file a writ petition under Article 226 of the Constitution of India.

Looking at the contents of the FIR, a prima facie case is made out against the petitioners, which requires a detailed investigation to be carried out by the Authorities. In such circumstances, the case does not fall under the category of rarest of the rare cases, therefore, the relief praying for quashing of FIR and for interim relief not to arrest the petitioners, without adhering to the statutory provisions of criminal jurisprudence, this Court refrains from entertaining the writ petition under Article 226 of the Constitution of India”, the Court further observed while dismissing the petition.

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