When a criminal proceeding is manifestly attended with mala fide and is maliciously instituted, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C.

Rohit Pradhan | 23rd November 2019

Vineet Kumar & Ors. v. State of UP and Anr., CRIMINAL APPEAL NO.577 OF 2017

Facts:

There have been lot of financial transaction which were made between the Accused and Complainant. Complainant later failed to pay back the accused. Cheque was dishonored with the statement “insufficiency of funds”. When accused went to complainant for repayment, complainant denied to repay it. Case was filed under Section 138 C.R.P.C for the dishonor of cheque.

In the other hand Complainant filed complaint against accused under Section 156(3) Cr.P.C. against all the three accused alleging commission of offence under Section 376(d),323 and 452 IPC. Allegation which was made by the Complainant was that three accused came to house of complainant and started to beat her with stick, kicks and fist. They also misbehaved with her and then two accused raped her, while one stood outside the room. When the one standing outside told both of them that husband of the complainant is coming then all the three men fled away. Complainant then went to file FIR the very same day. But they refused to file FIR. Add. CJM ordered Police station to file FIR and start investigation,

In investigation, complainant recorded her statement that she went to govt. hospital next day, where her external injuries were examined but doctor refused to examine her internally. When IO asked to do her internal examination again, Husband refused as he stated that he himself did sexual intercourse several times so the test will be futile. Still she did her medical examination, where the report said “No spermatozoa   alive   or   dead   are   seeing   the   received   smears within sealed envelope”.

IO in his final report made conclusion that no such incident ever took place. IO also filed application to initiate proceeding under Section 182 CrPC against complainant, for which complainant filed protest petition which was accepted. U/s 482 CrPC HC ordered A.CJM to pass fresh order. Magistrate again passed the order of summoning the accused. Accused then filed the revision petition, which was rejected by the trial court and later on the application under Section 482 CrPC was also rejected. Accused hence approached SC.

Court held:

On examining the records it is clear that there is numerous financial transaction which has taken place. There had been no medical examination on the day or after the incidence of rape. Moreover there was denial when asked to conduct examination. Even when medical examination was done there was no positive report. Hence High Court should have quashed the proceeding.