Court No. - 65
Case :- APPLICATION U/S 482 No. - 28902 of 2019 Applicant :- Arvind Saroj Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Manish Kumar Tripathi, learned counsel for the applicant, 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 impugned charge-sheet no. 113 of 2016 dated 15.12.2016 in S.T. No. 112 of 2016 (State vs. Arvind Saroj) arising out of Case Crime No. 406 of 2016 under section 363, 366, 376 IPC and 3/4 POCSO Act as well as NBW dated 12.01.2018 pending int he court of Additional District Judge, 1st, Jaunpur and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that the victim of this case, who is daughter of the opposite party no.2 is major as per medical examination report by which she is found to be 19 years of age, which is at page 37. In her statement under section 164 Cr.P.C. she has stated that she had gone with the accused-applicant of her own free will because she loved him. Her parents had beaten and had thrown her out of house. Her age is 20 years and and she knows that she could marry only after attaining the age of majority. She has married applicant in temple. Based on this evidence, it is argued that the offence under section 376 IPC and 3/4 POCSO Act would not constitute and the charge-sheet has been submitted by the Investigating Officer in a routine matter without application of mind, which needs to be quashed same being malicious prosecution. It is further argued that discharge application is also pending before trial court since 7.4.2017 and the same has not been disposed of till date. The NBW issued against the accused also needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet as well as NWB. he has pointed out that charge-sheet has been submitted under the aforementioned sections only because as per school certificate, the age of the victim was found to be less than 18 years and hence she was a minor because of which POCSO Act and offence under section 376 IPC were imposed against the accused-applicant in this case. Cognizance was taken in this matter on 24.12.2016.
I have gone through the order sheet which indicates that it is only of one date i.e. 12.01.2018, in which it is written that the accused is avoiding the disposal of this case in the garb of the discharge application being pending and was not appearing, hence NBW has been issued.
Learned counsel for the applicant could not show any justifiable reason as to why the applicant was not appearing before the court for getting his discharge application disposed of because the court has recorded in its order dated 12.1.2018 that the accused wants to keep the proceedings pending in the garb of the discharge application being pending and has issued NWB against the accused-applicant.
I do no find any ground to quash the NBW because the same has been issued by the trial court in order to procure the attendance of the applicant. Hence I do not see any infirmity in issuance of the NBW.
The prayer for quashing the NBW is refused.
I have gone through the FIR. As per FIR on 2.8.2016 in the night at about 8.00 p.m. when the victim had gone for nature's case and did not return, opposite party no. 2 had lodged FIR at the concerned police station against the applicant who enticed her away and subsequently after investigation, the police has submitted charge-sheet in the above-mentioned sections. It cannot be said at this stage that cognizable offence is not made out against the accused applicant because age of the victim cannot be determined at this stage by this Court because the same would be required to be decided in accordance with the provision given u/s 94 of the Juvenile Justice Act, 2015.
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, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for cancellation of NBW, the same shall be decided in accordance with law within the same period. If it rejected and applicant applies for bail, then his bail application shall be considered and decided in accordance with law. For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With aforesaid direction, this application is finally disposed of.
Order Date :- 26.7.2019 AU