Court No. - 50
Case :- APPLICATION U/S 482 No. - 29644 of 2018 Applicant :- Aftab Alam Alias Ravi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Om Prakash Singh,Santosh Pathak Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
Heard Santosh Pathak, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application under section 482 Cr.P.C has been filed for quashing the Summoning order dated 10.05.2017 and order dated 26.05.2018 issuing N.B.W. and process under section 82 Cr.P.C. passed by Additional Sessions Judge-2, Kushi Nagar as well as the entire proceeding of Complaint Case No. 20 of 2016 (Amirunnisha vs. Barqat Ali and others), under sections 363, 366 I.P.C and section 7/8 POCSO Act, Police Station Kashya, District Kushi Nagar, pending in the Court of Additional Sessions Judge-2, Kushi Nagar.
Learned counsel for the applicant contends that the opposite party no. 2 moved an application under section 156(3) Cr.P.C. before district court Kushi Nagar at Padrauna copy at Annexure no. 1 with the allegations that her minor daughter is missing since 12.05.2016 and she has reason to believe that she has been kidnapped by Barqat Ali son of Jumman and his daughter- in-law wife of Ravi and has been sold somewhere; that the above application was treated as complaint and after recording the statements under sections 200 and 202 Cr.P.C., the learned Additional Sessions Judge passed impugned order of summoning dated 10.05.2017 against Barqat Ali and applicant Ravi son of Barqat Ali; that the Ravi is nick name of applicant Aftab Alam son of Barkat Ali; that at the time of alleged incident the applicant was out side India at Jedda, as he has left for Jedda Saudi Arab Air lines on 21.04.2015 and returned only on 29.04.2017, the copies of his ticket as well as passport have been filed at Annexure -6; that despite there being no whisper against the applicant in the complaint in statement of complainant recorded under section 200 Cr.P.C. she has also named applicant as one of the culprit and has been summoned for the offences under sections 363, 366 I.P.C. and section 7/8 POCSO Act; that since the applicant is not named to be a culprit in the complaint itself, on the basis of statement under section 200 or 202 Cr.P.C. he may not be summoned; that the learned Additional Sessions Judge has not applied his mind to the facts of complaint case and passed the impugned order in mechanical manner summoning the applicant, without their any prima facie case against him.
Per contra, the learned A.G.A supported the impugned order and contended that the application under section 482 Cr.P.C has been filed with absolutely false and incorrect allegations.
Upon hearing the learned counsel for parties and perusal of the record, I find that it is proved from Annexure No. 6 that applicant was out side India at Jedda when the incident in question occurred and in the application under section 156 (3) Cr.P.C. which was treated as complaint there is no whisper against the applicant. After recording the statements under sections 200 and 202 Cr.P.C., applicant has been summoned along with his father merely on the basis of statement under section 200 Cr.P.C. The learned Additional Sessions Judge has acted wrongly and illegally and without due application of his mind in taking cognizance of offence on the application under section 156(3) Cr.P.C. as against the applicant and impugned order is liable to be quashed.
In view of discussions made above, I find that the learned Additional Sessions Judge has acted wrongly without due application of mind in passing the impugned order of summoning, N.B.W. as well as process under section 82 Cr.P.C.
The impugned orders of summoning dated 10.05.2017 and order dated 26.05.2018 issuing N.B.W. and process under section 82 Cr.P.C. passed by Additional Sessions Judge-2, Kushi Nagar are liable to be quashed to prevent the abuse of process of Court and to secure the ends of justice.
The application is, accordingly, allowed and impugned summoning order dated 10.05.2017 and order dated 26.05.2018 issuing N.B.W. and process under section 82 Cr.P.C. as well as proceedings of Complaint Case No. 20 of 2016 (Amirunnisha vs. Barqat Ali and others), under sections 363, 366 I.P.C and section 7/8 POCSO Act, Police Station Kashya, District Kushi Nagar, pending in the Court of Additional Sessions Judge-2, Kushi Nagar are quashed only in respect of appellant Aftab Alam @ Ravi.
Order Date :- 24.9.2018 Bhanu