# Ajay Katara v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-16
- **Case number:** Application U/S 482 Cr. P.C. No. 41533 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-katara-v-state-of-u-p-anr-45092
- **Pages:** 12

## Headnote

A. Code of Criminal Procedure - Section 482 -
Malicious
Prosecution-Absence
of
corroborative
evidence-Except
for
the
statements of the victim, her husband (
accused/witness) no other corroborative
evidence against applicant and co-accusedNo date, time, parentage and residence of the
accused, whose names were introduced by
the prosecutrix with an ulterior motive after
two
months
of
kidnapping
by
accused/witness regarding commission of
gang-rape as alleged has been disclosed by
the victim-No response/counter affidavit
whatsoever filed by the informant/opposite
party no.2 to the averments made in the
application-Hence averments made in the
application assumed to be correct-No test
identification-Fit case where the Court in
exercise of its inherent power under Section
482
Cr.P.C.
should
quash
the
entire
proceedings against the applicant as the
same squarely falls within the para 3 & 7 of
Bhajan Lal's case. (Para 20, 21, 22 & 24)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

## Text

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1 All. Ajay Katara Vs. State of U.P. & Anr.
495
process of the Court, High Court in exercise of
its inherent powers under section 482 could
quash the proceedings but there would be
justification for interference only when the
complaint did not disclose any offence or was
frivolous vexatious or oppressive" as well as in
State of Bihar v. Murad Ali Khan, (1989) Cr
LJ 1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction under
Section 482 High Court would not embark
upon an enquiry whether the allegations in the
complaint are likely to be established by
evidence or not".

9. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above. The impugned order was well
based on evidence and facts collected by
Magistrate in its enquiry. There seems to
be no misuse of process of law. Hence,
this proceeding merits its dismissal.

10. Dismissed, accordingly.
----------
(2020)1ILR 495

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 Cr. P.C. No. 41533 of 2019

Ajay Katara ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vimlendu Tripathi, Sri Ajay Kumar Srivastava, Sri
Andleeb Naqvi, Sri Bhavya Sahai, Sri Brajesh Sahai

Counsel for the Opposite Parties:
G.A., Sri Santosh Kumar Yadav, Sri
Pradeep Kumar, Sri Anoop Trivedi
A. Code of Criminal Procedure - Section 482 -
Malicious
Prosecution-Absence
of
corroborative
evidence-Except
for
the
statements of the victim, her husband (
accused/witness) no other corroborative
evidence against applicant and co-accusedNo date, time, parentage and residence of the
accused, whose names were introduced by
the prosecutrix with an ulterior motive after
two
months
of
kidnapping
by
accused/witness regarding commission of
gang-rape as alleged has been disclosed by
the victim-No response/counter affidavit
whatsoever filed by the informant/opposite
party no.2 to the averments made in the
application-Hence averments made in the
application assumed to be correct-No test
identification-Fit case where the Court in
exercise of its inherent power under Section
482
Cr.P.C.
should
quash
the
entire
proceedings against the applicant as the
same squarely falls within the para 3 & 7 of
Bhajan Lal's case. (Para 20, 21, 22 & 24)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

1. Ram Dayal & ors. Vs. St. of U.P. & ors.
[2019 (4) ADJ 404]

2. Kaleem & 04 ors. Vs. St. of U.P. & anr. 2019
LawSuit(All) 1513

3. Parbatbhai Aahir Vs. St. of Guj. 2017 SCC
OnLine SC 1189

4. St. of Bih. Vs. Rajendra Agrawal 1996
LawSuit (SC) 143

5. Mushtaq Ahmad Vs. Mohd. Habibur Rehman
Faizi 1996 LawSuit (SC) 230

6. St. of U.P. Vs. O.P. Sharma 1996 LawSuit (SC) 276

7. St. of H.P Vs. Pirthi Chand 1995 LawSuit (SC) 1177
8. Herrignton Vs. British Railways Board (1972
(2) WLR)
9. St. of Har. Vs. Bhajan Lal 1992 SCC (Crl) 426
496 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Brajesh Sahai, learned
Senior Advocate assisted by Sri Vimlendu
Tripathi, Sri Andleeb Naqvi, Sri Bhavya
Sahai, learned counsels for the applicant,
Sri
Anoop
Trivedi,
learned
Senior
Advocate assisted by Sri Santosh Kumar
Yadav, Sri Pradeep Kumar, counsel for
opposite party no. 2 and Sri Vinod Kant,
learned Additional Advocate General as
well as learned A.G.A. for the State and
perused the material available on record.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing the summoning and cognizance
order dated 3.1.2019 passed by learned
A.C.J.M.-II, Budaun and supplementary
Charge-sheet No.163A dated 5.12.2018 in
Case No.410 of 2014, arising out of Case
Crime No.443 of 2013, under Sections
363, 366, 376 I.P.C., Police Station-
Sehaswan, District- Budaun, pending in
the court of Additional Chief Judicial
Magistrate-II, Budaun as well as all
consequential proceedings.

3. Be it noted, at this juncture as is
observed in the order dated 21.11.2019
that since the learned Senior counsel
appearing for opposite party no.2, learned
Additional Advocate General and learned
Additional Government Advocate have
categorically stated that they do not intend
to file any response/counter affidavit in the
present application and therefore, the
averments made in the application stands
unrebutted and the Court is left with no
other option but to accept the averments
made in the application as it is to be
correct on its face value.

4. The brief facts leading to the
present application are that the opposite
party no.2, Bhagwan Singh, who is Yadav
by caste lodged a first information report
on 28.6.2013 at 4:45 P.M. with the
allegations that his daughter/victim R
(name not being disclosed) aged about 12
years and student of class 6th had come
home from her paternal grandfather's
house to spend summer holidays. On
23.6.2013 at about 6 P.M. his daughter
went to attend call of nature where from
she was enticed away by her cousin
brother, Sukhpal, real sister of Sukhpal
namley Smt. Chetaniya, Jaiwahan husband
of Chetaniya, Shyam Singh brother of
Sukhpal after enticing and terrorising her
kidnapped her. When she did not return
home for long, a frantic search was made
and the first informant was told by persons
of his village namely Durgesh and Chote
that aforesaid five named accused have
been seen taking his daughter along with
them. Subsequently, victim R and four
others filed a Criminal Misc. Writ Petition
No.15345 of 2013 (Smt. Rinki and 4
others vs. State of U.P. And 2 others)
before this Court and vide order dated
31.7.2013 the Court stayed the arrest of
named accused. The said writ peition was
however dismissed as infructuous vide
order dated 1.5.2014 as the charge-sheet
was laid against Sukhpal for kidnapping a
minor girl. Be it noted that the other
named accused who are closely related to
Sukhpal
were
exonerated
during
investigation.

5. It is pertinent to mention here that
the applicant and other co-accused are
neither named in the first information
report nor any suspicion was laid on them,
however, pursuant to the orders of the
Court in the aforesaid writ petition the
statement of the victim was recorded under
Section 161 Cr.P.C. On 22.8.2013 wherein
she has stated that she loved Sukhpal and
1 All. Ajay Katara Vs. State of U.P. & Anr.
497
had gone with him and got married in a
temple at Ghaziabad where they started
leading a married life as husband and wife.
There she met one Ajay Katara and he
took both of them to Ashok Vatika
Sahibabad where he raped her. She has
also stated that Sukhpal had made physical
relations with her consent. It is also
pertinent to note here that the victim did
not disclose any date and time of the
alleged rape by Ajay Katara and besides
him she did not state that anyone else had
also raped her. The parentage and
residence of Ajay Katara was also not
disclosed. She and Sukhpal somehow
escaped from there.

6. The victim was produced before
the C.J.M. for recording her statement
under Section 164 Cr.P.C. On the same
day in which she has made several
improvements and has stated that she has
left her studies about 5-6 years back and
was staying at her Nanihal and has come
to her village (no date disclosed). Then she
called co-accused Sukhpal to Sahaswan
and on the pretext of attending call of
nature, she came to Sahaswan and from
there she went to Ghaziabad and when she
got down at the bus stand she met three
persons in a white car who asked them as
to why they are roaming about. Then they
told them that in fact they have run away
from their house on being annoyed by the
family members then these three persons
said that they will help her though they do
not know them, out of which one of them
said "ये अजय कटारा बैठे हैं, ये सभी की मदद
करते हैं तभी उन लोगोों ने मुझे व सुखपाल को
अपने साथ गाडी में बबठा बलया और चल बदये
तथा सुखपाल को रास्ते में गाडी से उतार बदया
तथा मुझे लेकर साबहबाबाद अशोक वाबटका में
एक मकान में ले गये वहााँ पर अजय कटारा व
उनके दो साथी मेरे साथ शराब पीकर मेरे साथ
बुरा काम करते थे व आपस में नाम जयवीर
और जोगेन्द्र लेते थे उन्होने मुझे आठ बदन तक
रखा और मुझे जान से मारने की धमकी देकर
गाबजयाबाद अड्डे पर छोड गये वहीों सुखपाल
बमला और हम दोनोों इलाहाबाद चले गये तथा
वहााँ पर पेश हुए। यही मेरा बयान है।" Based
on the statement of the victim the case was
converted under Section 376 I.P.C. at P.S.
Sahaswan, district Budaun, be it noted that
no F.I.R. was lodged at P.S. Sahibabad,
district Ghaziabad either by the victim or
Sukhpal. However, on 6.10.2013 the
Investigating Officer finding that the
victim is minor filed charge-sheet no.163
of 2013 against Sukhpal under Sections
363,
366
I.P.C.
while
exonerating
remaining four named accused persons
that their complicity has been found false
and it is noted in the said charge-sheet that
the investigation against the accused
whose names were disclosed by the victim
is going on.

7. At this juncture, it is significant to
mention here that as the parentage and
residence of the accused were not
disclosed by the victim and Sukhpal who
though has now been made a witness in
the impugned charge-sheet. After thorough
investigation
vide
SCD
No.1
dated
20.12.2013 the investigation against Ajay
Katara and two other persons was closed
due to incomplete details of the accused
named by the victim and they could also
not be found in the area where the victim
was allegedly raped and the Investigating
Officer has also noted that there does not
appear any possibility of being traced in
near
future
and
thus
closed
the
investigation. The said Parcha of the case
diary has been appended as Annexure-11
to the affidavit. On the charge-sheet
against Sukhpal under Sections 363, 366
I.P.C. cognizance was taken by A.C.J.M.,
498 INDIAN LAW REPORTS ALLAHABAD SERIES
2nd on 29.3.2014. The certified copy of
the charge-sheet has been annexed as
Annexure-9 to the affidavit.

8. It is interesting to note that the
aforesaid charge-sheet was challenged by
Sukhpal in Criminal Misc. Application
(U/s 482 Cr.P.C.) No.24560 of 2014 and
the Court stayed further proceedings of
Case Crime No.410 of 2014 (State vs.
Sukhpal and others) until further orders
vide order dated 11.7.2014. The said
application is still sub judice before the
Court.

9. Be it noted, that after the closure
of investigation against the accused whose
names were introduced with some ulterior
purpose in the year 2013 itself, no protest
petition or any objection was filed by
opposite party no.2 or victim. However,
after a gap of five years i.e. on 20.6.2018
the
victim
personally
moved
an
application before A.J.C.M-IInd, Badaun
in Case No.410 of 2014, under Sections
363, 366 I.P.C. that she has disclosed the
names of accused persons in her statement
under Sections 161 and 164 Cr.P.C. but
the police has not taken any steps to arrest
them and therefore S.H.O. Sahaswan be
directed to arrest the accused and put them
to trial. In this respect a report was called
and the court was apprised that further
proceedings of Case No.410 of 2014 have
been stayed until further orders in
Criminal Misc. Application (U/s 482
Cr.P.C.) No.24560 of 2014 and thus vide
order dated 10.7.2018 the application of
the victim was rejected in view of the stay
orders of the Court. The victim being
aggrieved preferred a Criminal Misc.
Application (482 Cr.P.C.) No.25888 of
2018 (Smt. Rinki vs. State of U.P. and
another) before this Court wherein the
order of the Magistrate dated 10.7.2018
was
set-aside
and
a
direction
for
investigation to be carried out by the
police in this regard was given and the
matter was remitted to the learned court to
decide the application of the victim afresh
and directed the Magistrate to ensure that
the investigation against those accused for
offence under Section 376 I.P.C. is taken
to its logical end strictly in accordance
with law within a time bound manner.
Thus, the application was disposed of vide
order dated 1.8.2018.

10. Pursuant to the aforesaid order,
the investigation was reopened after more
than five years on 3.9.2018 and the
Investigating Officer claims to have
visited the place of victim in District
Badaun and took her statement under
Section 161 Cr.P.C. and also of her
husband, Sukhpal. For ready reference it is
germane to reproduce the statement of the
victim recorded under Section 161 Cr.P.C.
and in this behalf affidavits were also filed
by the victim and her husband, Sukhpal.
The relevant part of the statement is
quoted as under:-

**eSaus vius xkWo ls lq[kiky dks Qksu
fd;k fd rqe lgloku vk tkvks rc eSa ?kj ls
'kkSp ds cgkus ?kj ls fudy dj lgloku vk;h
vkSj ogkW ls jksMost esa cSBdj xkft;kckn igqWphA
ogkW ij cl vM~Ms ij mrjdj ckgj vk;s rks ,d
lQsn xkMh esa rhu vkneh feys mUgksaus ge yksxksa
dks ns[kdj dgk fd dgkW ls vk;s gks vkSj ;gkW
dSls ?kwe jgs gks rc ge yksxksa us muls dgk fd
ge yksx ?kj ls ukjkt gksdj vk;s gSA rc bu
rhuksa us ge yksxksa ls dgk fd ge yksx rqEgkjh
enn djsaxsA muesa ls ,d us dgk fd esjk uke
vt; dVkjk gSA eSa lcdh enn djrs gSaA rc
ge nksuksa fo'okl esa vk x;sA vkSj ge nksuksa dks
xkMh esa cSBk fy;k vkSj py fn;s rc jkLrs esa
lq[kiky dks xkMh ls mrkj fn;k rFkk eq>s
lkfgckckn v'kksd okfVdk esa ,d edku esa j[kk
ogkW vt; dVkjk o mlds lkfFk;ksa us esjs lkFk
1 All. Ajay Katara Vs. State of U.P. & Anr.
499
'kjkc ihdj cqjk dke fd;k djrs FksA eq>s ogkW
vkB fnu j[kk eq>s tku ls ekjus dh /kedh nsrs
FksA vkSj vkil esa ,d nwljs t;ohj] ;ksxsUnz uke
ysrs FksA mlds ckn eq>s xkft;kckn cl vM~Ms
ij NksM x;s lkgc ogkW eq>s lq[kiky feyk rc
ge nksuksa bykgkckn pys x;sA lkgc ge nksuksa us
viuh ethZ ds 'kknh dj yh vkSj ifr iRuh ds
:i esa jg jgs gSaA lkgc ge nksuksa ls 02 cPps Hkh
gSaA lkgc esjs ifr us xkft;kckn tkdj ftUgksaus
esjs lkFk xyr dke fd;k gSA mudk uke irk
lc tkudkjh dj yh gSA bl lEcU/k esa SP cnk;wW
dks 'kiFk i= fn;s gSA tks Mkd ls Fkkus eas igqWp
x;s gksaxsA lkgc ;gh esjk c;ku gSA**

11. Even in this statement, the victim
has not stated as to how and from whom
she came to know the parentage and
residence of the applicant and other
accused. Even in the subsequent statement,
neither any date nor time has been
disclosed by her. It is quite vague in itself.
The relevant part of the statement of
Sukhpal recorded on 8.10.2018 is quoted
as under:-

"lq[kiky
iq=
fj"khiky
fuoklh
xwnjkxat Fkkuk m>kuh ftyk cnk;wW gky irk
jSlh dk uxyk Fkkuk dknj pkSd ftyk cnk;wW us
iwNus ij crk;k fd lkgc esjs xkao ls fjadh iq=
Hkxoku flag vius ukuk fot; flag ds ;gkW jgrh
FkhA eq>s mlls I;kj gks x;kA ge yksx Nqi Nqi
ds feyrs jgrs FksA mlds ckn fjadh vius xkWo
eqMkjh fl/kkjiqj pyh x;hA ogkW ls eq>s Qksu
djrh FkhA ,d fnu Qksu djds eq>s lgloku
cqyk;k vkSj dgk fd eSa lgloku vkrh gwWA vkSj
;gkW ls Hkkx pyrs gSaA rc lkgc eSa lgloku
vk;k tgkW eq>s fjadh feyh rc ge nksuksa jksMost
esa cSBdj xkft;kckn igqWps ogkW cl ls mrjdj
cSBs Fks rHkh rhu yksx ,d lQsn xkMh ls vk;s
vkSj ge nksuksa ls iwNk dgkW ls vk;s gks rc ge
nksuksa us dgk fd ge nksuksa ?kj ls ukjkt gksdj
vk;s gSA rc ,d O;fDr us viuk uke vt;
dVkjk crk;k fd ge yksx rqEgkjh enn djrs
gSaA vkSj xkMh esa cSBkdj py fn;s mlds ckn
jkLrs esa eq>s xkMh ls mrkj fn;k vkSj fjadh dks
ysdj pys x;sA eq>s lkfgckckn esa isVaksy iEi ds
ikl ,d edku esa cUn dj fn;kA mlds ckn 8
fnu ckn eq>s cl vM~Ms ij NksMkA ogkW eq>s
fjadh feyh rc fjadh us eq>s crk;k fd rhuksa us
esjs lkFk 'kjkc ihdj cqjk dke fd;kA rc ge
nksuksa bykgkckn pys x;s ogkW eSaus dk;Zokgh dhA
lkgc ge nksuksa us 'kknh dj yh gSA 2 cPps Hkh
gSaA lkgc xkft;kckn esa ftu yksxksa us esjh iRuh
ds lkFk 'kjkc ihdj cqjk dke fd;k mldh eSaus
iwjh tkudkjh dj yh gSA vkSj SP lkgc ls eSaus
viuk o viuh iRuh dk 'kiFk i= fn;k gSA
lkgc ;gh esjh c;ku gSA"

12. Solely on the basis of statements
of the victim, her husband (though facing
charge of kidnapping) and their affidavits,
the applicant and other co-accused have
been
charge-sheeted
vide
impugned
charge-sheet
dated
5.12.2018.
The
Investigating Officer has noted as under:-

"Jheku th fuosnu gS fd oknh Jh
Hkxoku flag iq= myQr flag fuoklh eqMkjh
fl/kkjiqj Fkkuk lgloku ftyk cnk;wW dh rgjhj
ij fnukad 28-06-13 dks eqdnek mijksDr
iathd`r gksdj iwoZ foospd }kjk foospuk dh
x;hA nkSjkus foospuk vfHk;qDr lq[kiky iq=
fj"khiky fuoklh cMsfj;k Fkkuk lgloku ftyk
cnk;wW ds fo:) fnukad 06-10-13 dks vkjksi i=
la0&163@13 ekuuh; U;k;ky; iszf"kr fd;k tk
pqdk gSA vU; rhu uketn O;fDrvkas psrfu;k]
t;okgu o ';ke flag dh uketnxh xyr ik;h
x;hA blds ckn ekuuh; gkbZdksVZ bykgkckn ls
mDr vfHk;ksx dh iqu% foospuk dk vkns'k gqvkA
ftldh foospuk m0fu0 vo/ks'k flag }kjk dh
x;hA muds LFkkukUrj.k gks tkus ij fnukad 2711-18 dks eq> foospd ds lqiqnZ dh x;hA
foospuk xzg.k dj okn voyksdu mDr vfHk;ksx
dh iqu% foospuk dh x;h rks foospuk ls ihfM+rk
ds 161 lhvkjihlh0 o 164 lhvkjihlh0 ds
c;kuksa o lq[kiky ds 161 lhvkjihlh0 ds c;kuksa
o 'kiFk i=ksa ls vfHk;qDrx.k 1&vt; dVkjk iq=
eueksgu 2&t;ohj iq= uRFkw 3&tksxsUnz iq=
jkeflag fuoklhx.k v'kksd okfVdk dkyksuh
edku ua0&2 F Fkkuk lkfgckckn ftyk
500 INDIAN LAW REPORTS ALLAHABAD SERIES
xkft;kckn ds uke izdk'k esa vk;sA eq> foospd
}kjk izdk'k esa vk;s vfHk;qDrx.k ds irs ij
xkft;kckn Fkkuk lkfgckckn {ks= esa v'kksd
okfVdk dkyksuh vk;k ryk'k djus ij
vfHk;qDrx.k ugha feysA vc rd dh rekeh
foospuk c;ku ihfM+rk 164 lhvkjihlh0 o 161
lhvkjihlh0 rFkk c;ku lq[kiky ds vfrfjDr
vU; dksbZ lk{; ugha gSA ihfM+rk ds c;ku
164@161 lhvkjihlh0 o lq[kiky ds c;kuksa ds
vk/kkj ij vfHk;qDrx.k dk pkyku tfj;s vkjksi
i= la0&163 A@18 ekuuh; U;k;ky; fd;k
tkrk gSA ekuuh; U;k;ky; ls vuqjks/k gS fd
okn ijh{k.k vfHk0x.k vt; dVkjk vkfn 03 dks
ryc dj mfpr n.M ls nf.Mr djus dh d`ik
djsaA foospuk lekIr dh tkrh gSA pwafd c;ku
ihfM+rk 161@164 lhvkjihlh0 o c;ku lq[kiky
ls vfHk0x.k ds fo:) /kkjk 363@366@376
vkbZihlh0 dk tqeZ c[kwch lkfcr gSA"

13. I may record once again at the
cost of repetition that aforesaid facts have
not been disputed either by the learned
Senior Advocate appearing for opposite
party no.2 or by the State.

14. Sri Vimlendu Tripathi, learned
counsel appearing on behalf of applicant
has argued that it is a classic case of false
implication and of no evidence against the
applicant as the applicant was a star
witness in famous Nitish Katara murder
case in which the known criminal and
politician of Uttar Pradesh and sons of Sri
D.P. Yadav namely Vikas Yadav and his
nephew Vihsal Yadav were involved and
were ultimately convicted for murder of
Nitish Katara and sentenced to life
imprisonment by the trial court. Their
conviction was upheld by the High Court
of Delhi by awarding fixed terms of 30
years without remission, which was upheld
in an appeal before the Hon'ble Supreme
Court. It has been argued that in fact the
applicant is paying the price for speaking
the truth in the court of law and helping in
administration of justice by deposing
truthful substantive evidence against the
accused in the aforesaid murder case and
the applicant was a star witness as all other
witnesses of fact had turned hostile on
account
of
threat,
intimidation
and
coercion of Sri D.P. Yadav and his
henchmen. Thereafter, the applicant was
falsely implicated in several cases at the
instance of Sri D.P. Yadav which have
been detailed in Para 4 of the affidavit and
the same stands unrebutted as on date. The
applicant apprehending serious danger to
his life was even provided four police
armed guards since 25.4.2002 on account
of increased threat perceptions.

15. Sri Tripathi has further argued
that the present case is a classic example
of abuse of process of court and
miscarriage of justice as is apparent on the
face
of
record
and
the
following
undisputed facts establishing falsehood of
allegation and the ground for quashing the
proceedings may be taken into account by
the court while exercising the inherent
power
conferred
under
Section 482
Cr.P.C. and the same are quoted as under:-

a) The case relates to district
Budaun regarding incident of elopement of
alleged victim R with her boyfriend on
23.6.2013, wherein the name of applicant
does not come into picture for next two
months and was introduced for the first
time in the statement of victim R under
Section 161 Cr.P.C. On 22.8.2013 by
introducing an improbable incident of
District Ghaziabad.

b) The allegations about the
alleged incident of district Ghaziabad
could not be included into the Case Crime
No.443 of 2013 (criminal case in question)
registered for alleged incident of district
Budaun, in view of the fact that both
1 All. Ajay Katara Vs. State of U.P. & Anr.
501
alleged incidents/offences
are neither
continuing offences nor relate to each
other so as to make a series of same
transaction and investigation about the
alleged incident of district Ghaziabad is
absolutely illegal.

c)
The
story
relating
to
Ghaziabad incident is highly improbable,
as there was no occasion for the alleged
victim R and her boy friend to accompany
a stranger in an entirely new city of
Ghaziabad on mere asking for help by
such stranger without disclosing time, date
and exact place of gang-rape upon the
victim.

d)
Despite
allegation
of
kidnapping of alleged victim R in district
Ghaziabad in presence of her boyfriend
and despite allegation of retaining the girl
for a long period of eight days, no separate
report was lodged in district Ghaziabad or
any information was given to any
authority.

e)
Had
the
allegation
of
kidnapping of alleged victim R in district
Ghaziabad been true to any sense, her boy
friend who allegedly did not know the
applicant personally would have certainly
run pillar to post to save his girl friend in
natural course of events under the
situation/script played framed by the
alleged victim R regarding the incident of
Ghaziabad.

f) There is no investigation as to
how a person having 24x7 police security
would commit such a crime.

g) There is no investigation as to
how an allegation for offence under
section 363/366 I.P.C. against Sukhpal and
his family members connected with
district Budaun can have any nexus with
the allegation of rape by the applicant in
district Ghaziabad.

h) The entire investigation in the
case in hand, which relates to the
applicant, is perfunctory and is a sham
process, in which the I.O. didn't bother to
verify any of the allegations levelled
against the applicant by collecting any
corroborative material/evidence.

i) There is no reason shown as to
why Victim R personally moved an
application on 20.06.18 i.e., after a gap of
five years, for arrest of applicant and two
other persons.

j) The applicant does not know
the alleged co-accused Jaiveer son of
Naththu and Jogendra son of Ram Singh,
who have also been charge-sheeted along
with him in the impugned charge-sheet.
The address of applicant has been shown
as address of these two persons also. The
I.O. didn 't bother to collect any
information about identity of co-accused
Jaiveer and Jogendra when none of the
added
accused
were
put
up
for
identification in order to fix their identity.

k) lt appears to the applicant that
these two persons are non-existent and are
fake persons and these two persons have
been introduced in the case in hand just to
give strength to the false allegations of
rape levelled against the applicant. The
applicant was, however, not put up for
identification to fix his identity by the
victim or her alleged husband throughout
the investigation.

l) The malafide behind the
allegations against the applicant is writ
large in view of factual backdrop of the
status of applicant, his admitted enmity
with Vikas Yadav and Vishal Yadav (the
son and nephew respectively of D.P.
Yadav), the history of his false implication
in as many as twenty four (24) criminal
cases, wherein either final report was
submitted by the local police in favour of
applicant or the case resulted into
acquittal, or the proceedings have been
stayed by the High Court.
502 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Before dealing with present
application, I would, in fact, like to record
settled proposition of law of the land in
respect of exercise of inherent powers of
the Court.

17. Most importantly as noted by the
Court, against the averments made by the
applicant
in
the
application,
no
response/counter affidavit whatsoever has
been filed by the informant/opposite party
no.2 inasmuch as learned Senior Advocate
appearing for opposite party no.2, Sri
Anoop Trivedi and Sri Vinod Kant
Srivastava, learned Additional Advocate
General
flatly
refused
to
file
any
response/counter affidavit to the averments
made in the application, despite being
repeatedly apprised by this Court to file
response in rebuttal of the averments,
otherwise the Court would be constrained
to assume averments in the application as
correct. Even during lengthy hearing,
material relied upon by the applicant has
not been refuted by the learned senior
counsel appearing for the opposite party
no.2 and the State.

18. Learned counsels appearing on
behalf of opposite party no.2 have,
however,
placed
reliance
on
the
judgements rendered by this Court in Ram
Dayal and others vs. State of U.P. And
others [2019 (4) ADJ 404] and have
submitted that the said judgment contains
the entire law on the subject i.e. the
powers of High Court to quash the
proceedings in exercise of inherent power
conferred under Section 482 Cr.P.C. I may
record
that
the
said
judgment
is
compendium of most of the important
judgments rendered by different High
Courts and Apex Court and the ratios laid
down therein as to under what facts and
circumstances in exercise of inherent
power under Section 482 Cr.P.C. the
proceedings arising out of the Chargesheet or the complaint case can be quashed
at the very threshold without affording an
opportunity to the prosecution to lead
evidence. It would be germane to quote
Para 74 of the aforesaid judgment which is
essentially the crux of the ratios laid down
by the Apex Court in the judgments cited
therein. The Paragraph 74 is quoted as
under:-

"74. Thus, the only question
which
survives
for
consideration
is
whether this Court in exercise of its
jurisdiction, under section 482 Cr.P.C.
can weigh the testimony of a witness even
when a full fledged trial is yet to take
place. The issue so involved is no longer
res-integra and stands considered by the
Apex Court in the case of State of Orissa
and Another Vs. Saroj Kumar Sahoo,
reported in 2005 (13) SCC 540, wherein
the following has been observed in
paragraphs 10 and 11:-

"10. In dealing with the last
category, it is important to bear in mind
the distinction between a case where there
is no legal evidence or where there is
evidence which is clearly inconsistent with
the accusations made, and a case where
there
is
legal
evidence
which,
on
appreciation, may or may not support the
accusations. When exercising jurisdiction
under Section 482 of the Cr.P.C., the High
Court would not ordinarily embark upon
an enquiry whether the evidence in
question is reliable or not or whether on a
reasonable appreciation of it accusation
would not be sustained. That is the
function of the trial Judge. Judicial
process should not be an instrument of
oppression,
or,
needless
harassment.
Court should be circumspect and judicious
in exercising discretion and should take all
1 All. Ajay Katara Vs. State of U.P. & Anr.
503
relevant facts and circumstances into
consideration before issuing process, lest
it would be an instrument in the hands of a
private complainant to unleash vendetta to
harass any person needlessly. At the same
time the section is not an instrument
handed over to an accused to short-circuit
a prosecution and bring about its sudden
death. The scope of exercise of power
under Section 482 of the Cr.P.C. and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to
secure the ends of justice were set out in
some detail by this Court in State of
Haryana v. Bhajan Lal, (1992) Supp 1
335. A note of caution was, however,
added that the power should be exercised
sparingly and that too in rarest of rare
cases. The illustrative categories indicated
by this Court are as follows:

"(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Cr.P.C. except under an order of a
Magistrate within the purview of Section
155(2) of the Cr.P.C.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission of
any offence and make out a case against
the accused.

(4) Where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Cr.P.C.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bar engrafted in any of the
provisions of the Cr.P.C. or the Act
concerned
(under
which
a
criminal
proceeding is instituted) to the institution
and continuance of the proceedings and/or
where there is a specific provision in the
Cr.P.C. or Act concerned, providing
efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
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."

"11. As noted above, the powers
possessed by the High Court under Section
482 of the Cr.P.C. are very wide and the
very plenitude of the power requires great
caution in its exercise. Court must be
careful to see that its decision in exercise
of this power is based on sound principles.
The inherent power should not be
exercised to stifle a legitimate prosecution.
The High Court being the highest court of
a State should normally refrain from
giving a prima facie decision in a case
where the entire facts are incomplete and
hazy, more so when the evidence has not
been collected and produced before the
Court and the issues involved, whether
504 INDIAN LAW REPORTS ALLAHABAD SERIES
factual or legal, are of magnitude and
cannot be seen in their true perspective
without sufficient material. Of course, no
hard and fast rule can be laid down in
regard to cases in which the High Court
will exercise its extraordinary jurisdiction
of quashing the proceeding at any stage.
(See: Janata Dal v. H. S. Chowdhary,
[1992] 4 SCC 305, and Raghubir Saran
(Dr.) v. State of Bihar, AIR (1964) SC 1).
It would not be proper for the High Court
to analyse the case of the complainant in
the light of all probabilities in order to
determine whether a conviction would be
sustainable and on such premises arrive at
a conclusion that the proceedings are to
be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with. When an information is lodged at the
police station and an offence is registered,
then the mala fides of the informant would
be of secondary importance. It is the
material collected during the investigation
and evidence led in court which decides
the fate of the accused person. The
allegations of mala fides against the
informant are of no consequence and
cannot by themselves be the basis for
quashing
the
proceedings.
(See:
Dhanalakshmi v. R. Prasanna Kumar,
[1990] Supp SCC 686, State of Bihar v. P.
P. Sharma, AIR (1996) SC 309, Rupan
Deol Bajaj v. Kanwar Pal Singh Gill,
[1995] 6 SCC 194, State of Kerala v. O.C.
Kuttan, AIR (1999) SC 1044, State of U.P.
v. O.P. Sharma, [1996] 7 SCC 705,
Rashmi Kumar v. Mahesh Kumar Bhada,
[1997] 2 SCC 397, Satvinder Kaur v. State
(Govt. of NCT of Delhi, AIR (1996) SC
2983 and Rajesh Bajaj v. State NCT of
Delhil, [1999] 3 SCC 259)."

This Court while disposing of
the application of the applicant for
quashing the proceedings had observed in
Para 75 that the Court is handicapped to
examine the veracity of the statement of
the prosecutrix as recorded under Section
202 Cr.P.C. There is no such other
impeccable evidence on the record on the
basis of which this Court may discard the
statement of the prosecutrix. It is for the
trial court to weigh the statement of the
prosecutrix in the light of the attending
circumstances referred to above, and then
arrive at its own conclusion as to whether
the applicants are guilty or not.

19. Besides it, learned counsels for
opposite party no.2 have relied on Kaleem
and 04 others vs. State of U.P. And
another
2019
LawSuit(All)
1513,
Parbatbhai Aahir vs. State of Gujarat
2017 SCC OnLine SC 1189, State of
Bihar
vs.
Rajendra
Agrawal
1996
LawSuit (SC) 143, Mushtaq Ahmad vs.
Mohd. Habibur Rehman Faizi 1996
LawSuit (SC) 230, State of U.P. vs. O.P.
Sharma 1996 LawSuit (SC) 276, State of
Himachal Pradesh vs. Pirthi Chand 1995
LawSuit (SC) 1177. The essence of
arguments of learned counsels for opposite
party no.2 is that the Court is not justified
to
embark
upon
an
inquiry
into
reliability/genuineness of allegations made
in the F.I.R. Or complaint and the
extraordinary and inherent power did not
confer an arbitrary jurisdiction to the Court
to act according to its capricious way.
There is absolutely no quarrel with the
proposition of the law laid down by the
Apex Court in the judgments cited from
the other side, however, we cannot loose
sight of the law in respect of precedent, is
well settled that a little difference in facts
or additional facts may make lot of
difference in the precedential value of a
decision. In Herrignton vs. British
Railways Board (1972 (2) WLR) Lord
Morris said:
1 All. Ajay Katara Vs. State of U.P. & Anr.
505

"There is always peril in treating
the words of a speech or a judgment as
though they were words in a legislative
enactment, and it is to be remembered that
judicial utterances are made in the setting
of the facts of a particular case.

Circumstantial flexibility, one
additional or different fact may make a
world of difference between conclusions in
two cases. Disposal of cases by blindly
placing reliance on a decision is not
proper. The following words of Lord
Denning in the matter of applying
precedents have become locus classicus:

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, in deciding such cases,
one should avoid the temptation to decide
cases (as said by Cardozo) by matching
the colour of one case against the colour
of another. To decide therefore, on which
side of the line a case falls, the broad
resemblance to another case is not at all
decisive.

Precedent should be followed
only so far as it marks the path of justice,
but you must cut the dead wood and trim
off the side branches else you will find
yourself lost in thickets and branches. My
plea is to keep the path to justice clear of
obstructions which could impede it."

20. Keeping in view the well
established law in respect of exercise of
inherent power under Section 482 Cr.P.C.
and after considering the rival submissions
made
by
learned
counsels
for
the
applicants and opposite party no.2 and
perusing the entire material on record
which stands unrebutted, I propose to deal
with the question as to whether the
proceedings against the applicant which
are claimed to be an abuse of process of
law, inasmuch as, even if the entire
material collected during evidence is
assumed to be true on its face value,
whether any commission of cognizable
offence under Section 376 I.P.C. is made
out or not or by the evidence collected
during investigation his complicity is
established by any evidence accepted to be
true on its face value.

21. This Court further noticed that
Investigating Officer while submitting
supplementary charge-sheet no. 163 of
2018 dated 5.12.2018 has acknowledged
that during entire investigation except the
statements of the victim recorded under
Sections 161 and 164 Cr.P.C. and the
statement of Sukhpal (who had been
charge-sheeted in the present case), there
is no other evidence collected by him. It is
noted:-

"अब तक बक तमामी बववेचना बयान
पीबडता
१६४
सी.आर.पी.सी.
व
१६१
सी.आर.पी.सी.
तथा
बयान
सुखपाल
के
अबतररक्त कोई साक्ष्य नहीों है।"

22. Parentage and residence of the
charge-sheeted
accused,
Ajai
Katara
(applicant)
and
co-accused
(nonapplicants, Jaivir and Jogendra) have been
disclosed in the affidavits filed by the
victim and Sukhpal. I may record that even
in the impugned supplementary chargesheet dated 5.12.2018 witnesses cited are:
First informant, Bhagwan Singh, Serial
No.1, Smt. R. and Sukhpal at serial no.3,
though admittedly Sukhpal has been made
accused in the F.I.R. and is charge-sheeted
accused whose proceedings though have
been stayed by this Court in Criminal
Misc. Application under Section 482
Cr.P.C. (Sukhpal vs. State of U.P.) which
is still pending consideration.
506 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The Court cannot permit the
prosecution to go on if the case falls in any
one of the categories as illustrated and
enumerated by the Apex Court in State of
Haryana
Versus
Bhajan
Lal
1992
SCC(Crl) 426 (Para 102) supra.

24. The Court, therefore, has no
hesitation, whatsoever, in concluding that
judicial conscience of the Court on the
basis of material before it has persuaded to
quash the criminal proceedings pending
against the applicant in exercise of its
inherent powers as vested in it under
Section 482 Cr.P.C. The Court is quite
conscious of the fact that the victim has
named the applicant in her statement under
Section 164 Cr.P.C., but the names of
accused
were
disclosed
to
her
by
themselves and during investigation they
were not put up for identification in order
to fix their identity which would have
clinched the issue and applicant and other
co-accused, could not have escaped from
the clutches of law. Therefore, in my
considered opinion, it is a fit case where
the Court in exercise of its inherent power
under Section 482 Cr.P.C. should quash
the
entire
proceedings
against
the
applicant as the same squarely falls within
the para 3 & 7 of Bhajan Lal's case.
Admittedly, it is not disputed by opposite
party no.2 that the applicant and other coaccused whose names were introduced
during investigation were not known to
them from before, as admittedly the
applicant
is
a
resident
of
district
Ghaziabad and no first information report
was lodged either by opposite party no.2
or her alleged husband who himself is
facing trial under Sections 363, 366 I.P.C.
at Ghaziabad in the year 2013 itself or
moved any application for the alleged
incident be investigated thoroughly by the
police
station
within
whose
local
jurisdiction the alleged offence of gangrape had allegedly taken place. Though, as
noted time and again that no date, time,
parentage and residence of the accused
whose names were introduced by the
prosecutrix with an ulterior motive after
two
months
of
kidnapping
by
accused/witness
Sukhpal
regarding