Court No. - 49
Case :- APPLICATION U/S 482 No. - 24619 of 2018 Applicant :- Asif @ Nanda And 2 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Sushil Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Shri Pankaj Sharma has filed his appearance slip on behalf of the opposite party no. 2 today, which is taken on record.
Heard learned counsel for the applicants, learned A.G.A. for the State and learned counsel for the opposite party no. 2.
The present application u/s 482 Cr.P.C. has been filed to quash the impugned order dated 9.5.2018 passed by Additional Sessions Judge, Court no. 1, Mathura in Criminal Misc. Case No. 157 of 2018 (State of U.P. Vs. Asif and other), arising out of Case Crime No. 99 of 2018, under section 354, 376D, 506 I.P.C., and Section 3/4 of POCSO Act, 2012, Police Station Shergarh, District Mathura.
Learned counsel for the applicants submits that in the first place, cognizance order has been wrongly passed inasmuch as the victim had not supported the prosecution allegation in her statement recorded by the police. It is further submitted that there is no corroborative evidence. Alternatively, it has been submitted in any case, the learned Magistrate could not have issued non-bailable warrants on the first date itself at the time of taking cognizance.
Shri Pankaj Sharma, learned counsel for the opposite party no. 2 submits that the victim had clearly supported the prosecution case and made specific allegation of gang rape in her statement recorded under Section 164 Cr.P.C. He has also referred to the medical report to submit that at present, it cannot be said that no offence is made out.
Having considered the arguments advanced by the learned counsel for the parties, in the first place, it is seen that in view of the statement recorded under section 164 Cr.P.C., the submission advanced by the learned counsel for the applicant on the basis of some statement claimed to have recorded under Section 161 Cr.P.C., cannot be accepted. Learned Magistrate has not made a mistake in taking cognizance of the offence.
Insofar as the non-bailable warrants have been issued on the first date itself, the order does require interference in view of the decision of the Supreme Court in the case of Inder Mohan Goswami & Another Vs. State of Uttaranchal, in Criminal Appeal No. 1392 of 2007, decided on 9.10.2007.
However, looking at the nature of offence alleged and attending facts and circumstances of the case, as have been brought on record, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days, from today, the non-bailable warrants issued against the applicants shall be kept in abeyance.
The present application stands disposed of. Order Date :- 26.7.2018 Prakhar