Court No. - 65
Case :- APPLICATION U/S 482 No. - 32291 of 2019
Applicant :- Deena Nath
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sushil Kumar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Sri Sushil Kumar, learned counsel for the applicant and Sri Ankil Srivastava, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the entire proceeding of S.S.T. No. 26 of 2019, arising out of Case Crime No. 305 of 2018, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Gunnaur, District Sambhal as well as charge sheet no. 333 of 2018 dated 8.8.2018 and cognizance order dated 25.01.2019 and its consequential order.
It has been argued by the learned counsel for the applicant that opposite party no. 2, mother of the victim, has falsely implicated the accused-applicant no. 1. In statement under Section 161 Cr.P.C., which is annexed at page 36 of the paper book, victim has clearly stated that she has married the accused-applicant of her own free will; accused-applicant had not abducted her and that she wants to stay with her husband; she is also pregnant of two months. The marriage certificate issued by Arya Samaj Mandir, Nagla has also been annexed at page 32 of the paper book. He has also drawn attention to the order dated 27.3.2019 of this Court passed in Writ Petition No. 958 of 2019 in which victim was directed to be released in favour of the accused-applicant and victim was set free to live with the accused-applicant married life, therefore, it is argued that the present prosecution of the applicant is nothing but a malicious prosecution which needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer of quashing and has argued that C.J.M., Sambhal in order dated 3.8.2018, which is annexed at page 40, has mentioned that according to the school leaving certificate, victim is minor as her age is recorded in the school leaving certificate as 28.8.2002 which is correct, and even in the medical examination report her age is found to be of 17 years. The said school leaving certificate has not been annexed by the learned counsel for the applicant but I.O. has believed the said school leaving certificate and accordingly found the case made out u/s 3/4 POCSO Act against the accused- applicant.
I have gone through the F.I.R. In it, opposite party no. 2 has written that her daughter, who was 14 years of age, had gone to attend nature's call on 24.4.2018 at about 7:00 pm and she was enticed away by the accused-applicant. The accused had an evil eye on her and she had apprehension that she could be sexually exploited, sold and could also be killed. After investigation in this case the police has submitted charge sheet against the accused-applicant under the above mentioned sections. After having recorded as many as five witnesses, which included statement of the victim, it has come on record that the age of the victim was less than 18 years, hence the statement of the witnesses, which have been recorded, cannot be dis-believed at this stage in proceedings u/s 482 Cr.P.C.. It cannot be denied that cognizable offence is made out against the accused-applicant.
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, 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 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 30 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 45 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 45 days from the date of order, no coercive action shall be taken. But if the accused do not appear before the Committal Court, the said Court shall take coercive steps to procure his attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 22.8.2019
A.P. Pandey