Court No. - 65
Case :- APPLICATION U/S 482 No. - 31800 of 2019
Applicant :- Aley Nabi And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vivek Dhaka
Counsel for Opposite Party :- G.A.,Syed Mohammad Abbas Abdy
Hon'ble Dinesh Kumar Singh-I,J.
Heard learned counsel for the applicant Shri Vivek Dhaka and in opposition, learned counsel for opposite party no. 2 Shri Syed Mohammad Abbas Abdy and learned A.G.A. for the State Shri G.P. Singh and perused the record.
This application under Section 482 of Cr.P.C. has been moved on behalf of the applicants with a prayer to quash the charge sheet no. 17 of 2019 dated 31.05.2019 as well as the entire proceedings in Criminal Case No. 455 of 2019 (State v. Rihana and others), arising out of Case Crime No. 64 of 2019, under Sections 376D, 328, 120B, 420, 506 of I.P.C., Police Station - Simbhaoli, District - Hapur, pending in the court of Judicial Magistrate (Ist Class), Garhmukhteshwar, Hapur.
It is argued by learned counsel for the applicant that the accused-applicant no. 1 is husband of the victim, who is daughter of opposite party no. 2. Attention of the Court is drawn towards the 'nikahnama' which is annexed at page no. 79 of the paper book. The victim is 22 years of age. As per her high school certificate, her date of birth is recorded as 28.07.1997. It is further argued that in her statement under Sections 161 and 164 of Cr.P.C., she has supported the prosecution version only because of being in utter influence of her parents. A civil case being Suit No. 761 of 2019 had been filed by the victim against the accused-applicant no. 1 for getting the 'nikahnama' cancelled. From the side of the accused- applicants, a case has been filed for restitution of conjugal rights. It is argued that the accused-applicant nos. 2 - 4 are the witnesses of the said 'nikahnama' and have been falsely implicated.
On the other hand, learned counsel for opposite party no. 2 has vehemently opposed the prayer for quashing the proceedings and stated that there is no registration of the marriage and the document which is alleged to be 'nikahnama' is only an agreement between the parties and nothing beyond that. It is further argued that in her statement under Sections 161 and 164 of Cr.P.C., the victim has supported the prosecution version. It is further argued the against accused-applicant nos. 1, 3 and 4, the police has submitted charge-sheet under Sections 328, 376- D, 506, 420 of I.P.C., while against accused-applicant no. 2, charge-sheet has been submitted under Sections 328, 120B and 420 of I.P.C. only.
Learned A.G.A. has also opposed the prayer.
Perused the impugned F.I.R., wherein it is mentioned that on 12.03.2019 at about 09.00 A.M., the accused-applicant no. 2 came to the house of the informant/opposite party no. 2, requesting that the victim should be sent to Mawana. After the victim was taken to Mawana, some blank papers were got signed by her and thereafter, the victim was sent back to her home. On 13.03.2019 at about 08.00 A.M., the accused- applicant no. 2 came to the house of informant/opposite party no. 2 and called the victim for the purpose of preparing breakfast, as some guests had come. Thereafter, the accused- applicant nos. 1, 3 and 4 had given some narcotic substance to the victim. She fainted and was closed in a room, whereafter all the three accused-applicants committed rape upon her. The police has submitted charge-sheet against as many as sixteen witnesses.
At this stage, it cannot be denied that cognizable offence is not made out against the accused-applicants. The veracity of the submissions cannot be tested in proceedings under Section 482 of Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of R.P. Kapur v. The State of Punjab, AIR 1960 SC 866, State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. v. P.P. Sharma, AIR 1991 SC 1260 and lastly Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
In view of above, the prayer for quashing the charge-sheet as well as the entire proceedings in the aforesaid case is refused.
However, the applicants may approach the trial court to seek discharge, if so advised and before the said forum, they may raise all the pleas which have been taken by them here. If such application is made, the same shall be decided by the trial court in accordance with law.
The applicants may appear before Committal Court within 30 days to get their case committed to the Court of Sessions so that the accused may move discharge application before it.
For a period of 30 days from the date of order, no coercive action shall be taken against the applicants, but if the accused do not appear before the Committal Court, the said court shall take coercive steps to procure their attendance.
With the aforesaid observations/directions, the instant application stands disposed of.
Order Date :- 26.8.2019
I. Batabyal