Court No. - 52
Case :- APPLICATION U/S 482 No. - 7202 of 2019 Applicant :- Dharmendra Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bhupendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Bhupendra Singh, learned counsel for the applicant, Sri Sanjay Mishra, learned counsel for the opposite party no.2 and the learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 9.10.2018 passed by Special Judge (POCSO Act)/Additional Session Judge, VIII, Etawah in Special Case No. 52 of 2015 (State Vs.Sanjeev alias Sanju and others) under Sections 363, 366, 376(Gha) I.P.C. and 4 of POCSO Act, P.S.Chaubiya, District-Etawah.
Learned counsel for the applicant has submitted that the order passed by the trial court, summoning the accused under Section 319 Cr.P.C. is out and out illegal and against weight of evidence on record. It is argued that the applicant was falsely implicated in the present case and after thorough investigation, the police found participation of the applicant in the alleged case of gang-rape false and he was not charge-sheeted. Besides it, the prosecution version of gang-rape by the applicant and other accused is not supported by medical evidence. The trial court has not applied its judicial mind in exercising its power under Section 319 Cr.P.C. Therefore, the impugned order passed by the trial court may be quashed.
Per contra, learned counsel for the opposite party no.2 and learned A.G.A. appearing for the State have submitted that the applicant is named in the F.I.R. During investigation, the prosecutrix has corroborated the prosecution version of gang-rape against the applicant and others, yet the police in collusion with applicant did not charge-sheet him. They have further drawn the attention of the Court to the statement of the victim examined as PW 1 during trial in which she has specifically levelled allegation of gang-rape against the applicant and at this stage it cannot be said that prima facie, no offence against the applicant is made out.
In view of the aforesaid, I do not find any ground for quashing the summoning order passed by the trial court. No interference is called for in the instant application under Section 482 Cr.P.C.
Accordingly, the instant application is dismissed.
However, considering the fact that other charge-sheeted accused had already been enlarged on bail, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his 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 Apex 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, 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.
Order Date :- 25.2.2019 MN/-