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VIRENDRA KUMAR DOHARE versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Virendra Kumar Dohare v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 13700 of 2006 [2007] RD-AH 5292 (23 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 46

Criminal Misc. Writ Petition No. 13700 of 2006

Virendra Kumar Dohare-----------------petitioner.

Versus.

State of U.P. and others.------------Respondents.

Hon'ble Amar Saran, J

Hon'ble R.N. Misra, J

This is  one of the rarest of rare  case, in which an unfortunate daughter has levelled allegation of rape against her own father, who is P.C.S. officer.

Heard learned counsels for the parties and perused the relevant records.

In this writ petition, the petitioner has prayed for a writ of certiorari quashing the F.I.R. registered at Crime No.176 of 2006, under Section 376,323, 354,506 I.P.C. Police Station Nawabganj, district Kanpur Nagar and preventing his arrest during the pendency of investigation.

The F.I.R. was lodged by Smt. Pratima Singh, wife of Satya Prakash on 26.10.2006 against her father Virendra Kumar Dohare and the Nawabganj (Kanpur Nagar) police registered a case at crime no.176 of 2006, under Sections 376, 323, 354,  506 I.P.C. The application was addressed to Principal Secretary (Home), U.P. Lucknow. In the F.I.R., it has been disclosed that the complainant was repeatedly raped by her father. She was often physically assaulted by him also. The reasons behind was that on 19.10.2001, the accused under  intoxication of liqour misbehaved with the girl friend of the complainant and when she protested, she was raped by him. This act continued for some period. Ultimately, the complainant got herself married with one Satya Prakash, who was admittedly son of her maternal uncle. Babu Ram Pratap  was the elder brother of Satya Prakash, who was a practicing lawyer. He was also allegedly murdered by the accused because he used to help the complainant and her husband Satya Prakash. It has been alleged that in district Auraiya, some murder took place and a case at crime no. 341 of 2006, under Sections 302/307 I.P.C.Police Station Kotwali, district Auraiya was registered and in that case also, the husband of the complainant was falsely implicated by the accused. The accused repeatedly misused his official position in harassing the complainant, her husband, in-laws and helpers. She was given poison also by the accused, but anyhow, she could save her life. She moved the authorities concerned repeatedly but due to undue pressure and misuse of his official position, the accused got result in his favour.

In the writ petition, the petitioner has claimed himself to be innocent. He has alleged that the complainant being only daughter of his family got married with Satya Prakash, who was the son of her maternal uncle and in Hindu society, such marriage was not permitted. When he wanted to persuade the complainant from not marrying with Satya Prakash, she made  filthy allegation of rape against him. This is not believable that any father will commit rape upon his own daughter. In the murder case of Babu Ram Pratap, Advocate, he was discharged by the court and on so many applications given by the complainant to the police authorities, enquiries were held and he was found to be innocent. He has annexed discharge order and enquiry reports with his writ petition.  The main ground on which, the petitioner got interim order on 22.11.2006 preventing his arrest was  delay in the F.I.R.

According to the F.I.R., the process of rape continued since 2001 and the F.I.R. was lodged in 2006, but in the counter affidavit, filed by the complainant-informant Smt. Pratima Singh, all the facts have been disclosed. The copy of number of applications have been annexed with her affidavit which show that continuously since 2002, she and her husband have been moving the authorities concerned, but of no help. Learned counsel for the petitioner has argued that when the complainant's husband filed Habeas Corpus petition before this Hon'ble court, no allegation of rape was levelled. He has further argued that in none of the applications given to the authorities concerned, the factum of rape was alleged. But this argument is not based on material on record. In the application dated 15.3.2003 addressed to Rajya Malhila Ayog, Lucknow, the complainant alleged this fact that forcible abortion was made by the accused. So many applications were given to the police and executive authorities. Babu Ram Pratap, Advocate also moved application on 9.3.2002 to Home Secretary, U.P. Lucknow regarding danger to his life from the accused. Annexure-3 is the letter written by Sri N.C. Rajwanshi, the then President of High Court Bar Association, Allahabad addressed to Home Secretary, U.P. Government Lucknow regarding protection of Babu Ram Pratap , Advocate. In that letter also, danger from the side of accused was specifically made. In the letter annexure-6 addressed to the National Human Right Commission dated 7.5.2002, the husband of the complainant namely Satya Prakash alleged this fact that the accused had been misbehaving with the complainant. The word "NARI SHOSHAN, SHAARIRIK EVAM MANSIK SHOSHAN" were used in that application in guarded language without mentioning the word 'Balatkar'. In the letter Annexure-7 dated 23.5.2002 also, the word"  DUSHT PITA SE CHHUBDH HOKAR" has been used in relation to the complainant. In the letter dated 15.11.2002 Annexure-11, addressed to Superintendent of Police, Auraiya, U.P., the complainant used following lines in relation to her  against her father:

"INHONE BACHPAN SE HI MERA SHOSHAN KIYA JAB MAINEY HOSH SAMBHALA TO MERE PITA SRI VIRENDRA KUMAR DOHRE S.D.M. NE MUJHE 19 OCTOBER 2001 KO APNI HAWASH KA SHIKAR KIYA".

In the Habeas Corpus Petition, filed by Satya Prakash before this Hon'ble court, she(complainant) appeared and expressed her desire to go  and live with her husband. In the letter dated 5.4.2002 addressed to Rajya Mahila Ayog, Lucknow, the complainant used following sentences against her father:

"SHARAB KE NASHE ME THEY MERI TARAF BADHE AUR BED PAR   PATAK DIYA AUR KAPRE UTARNEY LAGE JAB MAINEY VIRODH KIYA AUR SHOR MACHAYA TO MERE PITA NEY MUJHEY BAHUT MAARA AUR MERA MUNH BAND KAR DIYA MAI BEHOSH HO GAI JAB HOSH AAYA TO MERE PAAS MERI MAN AUR MERA BHAI MERE AAS PAAS KHARE THEY MERE SAATH KYA HUA MUJHEY PATA NAHI.......MERE  PITA MERI SAHELIYON KO CHHERA KARTEY THEY YAHAN TAK KI WOH GHAR PAR AURTON VESHYAON KO BHI LAATEY THEY........... 13 FEBRUARY 2002 KO MERE PITA NE MERE SATH AMANWIYA VYAOHAR KIYA TATHA SHARIRIK AUR MANSIK YATNAEY DIYA".

In the last letter, written in 2002, she used following lines against her father:

"WAISE BHI MAI APNE BAAP KE LIYE USKI AULAAD TO HOON NAHI BAS MAUZ KI EK WASTU HOON JISEY WAH USE KARNA CHAHTA HAI AISA BAAP KISI KO MAT DENA JO APNI BETI KO NANGA KARE".

These facts clearly show that continuously since 2001, the complainant has been leveling allegations against her father for sexual harassment in guarded language. On one side, the father is saying that no one can believe that a father will commit rape upon his own daughter, but on the other side, the daughter is continuously saying since long that she has been sexually abused by her father. In such circumstances, there is no prima facie reason to disbelieve the complainant.

This is the writ petition, under Article 226 of the Constitution of India, which has limited scope in criminal matters. The court would not be justified in making enquiry as to reliability or genuineness of allegations made in  the application. The power to order stay of arrest can be used sparingly as has been continuously held by the Apex Court. The complaint cannot be quashed at the initial stage without trial and writ court cannot hold trial. If the cognizable offence is made out from the averments of F.I.R. or complaint, the police has to investigate and the court would not normally interfere in the investigation. The arrest is a part of investigation.

In view of our above discussions, we are of the view that this writ petition is devoid of merits and is consequently dismissed.

The interim order granted earlier stands vacated.

Date: 23.3.2007

Sfa/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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