Court No. - 46
Case :- APPLICATION U/S 482 No. - 38097 of 2018 Applicant :- Smt. Geeta Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pankaj Satsangi Counsel for Opposite Party :- G.A.
Hon'ble Naheed Ara Moonis,J.
Heard learned counsel for the applicant and the learned AGA for the State and also perused the record.
By means of the present application under Section 482 Cr.P.C. the applicant has invoked inherent jurisdiction of this Court with a prayer to set the aside the order dated 7.9.2018 passed by the learned VIIIth Additional Sessions Judge/Special Judge (P.O.C.S.O. Act) Budaun in Case Crime NO.231 of 2018, under Sections 363,366,376,506 IPC and Section 3/4 P.O.C.SO. Act, P.S. Kadar Chowk, District Budaun. Further made a prayer to directed the court concerned to decide the application dated 24.8.2018 afresh moved by the applicant on behalf of the victim (minor daughter).
It is submitted by the learned counsel for the applicant that the minor daughter of the applicant was taken away forcibly by the opposite party no.2 Aman Gupta. She was aged about 11 year and 6 months at the time of incident. The report was lodged in respect of abduction under Sections 364, 506 IPC. The case was, however, converted by the investigating officer on 31.7.2018, under Sections 363,366 IPC. Thereafter the victim was recovered on 20.8.2018 from the custody of the accused Aman Gupta. The daughter of the applicant was not sent for medical examination. Hence an application was moved by the applicant on behalf of the victim on 24.8.2018 to direct the investigating officer to get her medically examined who is minor and also to record her statement under Section 164 Cr.P.C. Another application was moved on 28.8.2018, but the court below has proceeded to pass the order rejecting the same on the ground that the victim has herself refused to get herself medically examined and there is inconsistency in her statement recorded under Section 164 Cr.P.C. with the statement under Section 161 Cr.P.C. recorded by the investigating officer.
It is further submitted that the victim had refused to get herself medically examined due to the pressure of the opposite party no.2. Her consent is immaterial who was taken forcibly by the opposite party no.2, as such her medical examination is necessary. The opposite party no.2 is constantly threatening to the applicant and in the absence of medical examination of the victim serious prejudice will be caused.
Per contra learned A.G.A. has contended that in respect of ascertaining age of the victim the ossification test of the daughter of the applicant was conducted, but she had refused to get herself medically examined. As such the order impugned has rightly been passed rejecting the application moved by the applicant.
I have considered the submissions of the learned counsel for the parties and gone through the material placed on record.
The charge sheet has been submitted against the opposite party no.2 under Sections 363,366,376,506 IPC and Section 3/4 P.O.C.S.O. Ac in the absence of the medical examination of the minor daughter of the applicant.
In this view of the matter, in the interest of justice in order to avoid any prejudice to be caused to the prosecution case, it is directed that the court below shall decide the application dated 24.8.2018 afresh moved by the applicant on behalf of the victim (minor daughter) directing the investigating officer to get her medically examined.
The order impugned is hereby set aside.
With the above direction, the application is disposed of.
Order Date :- 27.10.2018 M. Tariq