Court No. - 65
Case :- APPLICATION U/S 482 No. - 29134 of 2019 Applicant :- Abhishek @ Bikku And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anwar Hussain Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Anwar Hussain, learned counsel for the applicants, Sri G.P Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the proceedings of S.S.T. No. 2827 of 2019 arising out of Case Crime No. 152/2018 under sections 376, 496, 386, 507 and 120-B IPC read with Section 3/4 POCSO Act, Police Station Mangalpur, District Ram Bai Nagar pending before the court of Additional District Judge, Court No.8, Kanpur Dehat.
It is argued by learned counsel for the applicants that accused- applicant nos. 1 and 2 are friends and the daughter of opposite party no.2 was in love with accused-applicant no.1 since 2015 and they had married in a temple on 14.10.2015 and an agreement of marriage was also executed between them which is annexed at page 41 which has been proved by the notary advocate as well as the advocate who had prepared the same. It is further argued that after the said marriage, opposite party no.2 had taken her daughter from the house of accused- applicant no.1 and fixed her marriage with someone else but the same could not be materialized for certain reasons. Thereafter, as a counter blast, this case has been initiated against the accused-applicants. As of now, the victim is aged about 19 years. As per version of the FIR, her age was 17 years at the time of the incident. The police has submitted the chargesheet in a routine manner without going into the depth of the matter. This case is nothing but malicious prosecution of the accused- applicants. Hence, the proceedings deserve to be quashed.
On the other hand, learned A.G.A. has opposed the prayer for quashing of the proceedings.
I have gone through the FIR.
As per the FIR, opposite party no.2 has set up a case that on 01.10.2015 at about 08.00 a.m. when his daughter was about to leave for her school, the mother of applicant no.1 who was standing outside her house, called his daughter inside her house and gave her tea. After consuming the said tea, his daughter fainted and when she regained consciousness, she found her clothes in dishevelled condition. After returning from there, she told everything to her father and after two days of the incident, accused-applicant no.1 Abhishek @ Bikku made a phone call to his daughter stating that she had made an indecent video clipping of her to which she replied that the same be deleted otherwise she would make a complaint to her father but they did not delete the same. Thereafter, her marriage was fixed with one Raj Kumar of village Muraina but the accused-applicants would not allow that marriage to happen and disclosed this fact to the would be husband of daughter of opposite party no.2 that she was already married to accused-applicant no.1. Hence, the said marriage could not take place. It is also mentioned in the FIR that a forged marriage document was also prepared by the accused-applicants on the basis of which a false case of restitution of conjugal rights has been filed. The victim was also threatened that if she would not marry accused-applicant no.1, acid would be thrown at her. At the time of the incident, the victim was just 17 years of age. The police after investigating the case, has submitted the chargesheet and the statements of the witnesses which have been recorded by the Investigating Officer during investigation cannot be disbelieved at this stage in proceedings u/s 482 Cr.P.C. and it cannot be denied that cognizable offence is made out on the basis of evidence gathered by the Investigating Officer.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 15 days subject to compliance of provision of Section 209 Cr.P.C. to facilitate the trial court to hear and dispose of discharge application.
The applicant may appear before Committal Court within 15 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 15 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal Court, the said Court shall take coercive steps to procure his attendance.
With aforesaid directions, this application is finally disposed of.
Order Date :- 30.7.2019 Madhurima