Court No. - 40
Case :- CRIMINAL MISC. WRIT PETITION No. - 32025 of 2018 Petitioner :- Kamesh And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Praveen Singh,Abhishek Pandey Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the parties.
In compliance of the order passed by this Court on 22.11.2018, Sri A. K. Sand, learned A.G.A.-I produced the statement of the prosecutrix Shivani recorded u/s 164 Cr.P.C.
After perusing the same, we have found that the allegations of rape has been made by the prosecutrix Shivani against co-accused Sachin alone. As regards, the petitioner nos. 1 and 2, Smt. Kamesh and Akash respectively, who are mother and son, the allegation made by her in her statement u/s 164 Cr.P.C. is that she had tendered false information to her that her father had fallen ill and was admitted in a hospital on which she rushed to the hospital. On the aforesaid information, she went to the hospital with the wife of the co-accused Sachin. On the basis of aforesaid allegations, offences u/s 363, 366 I.P.C. and Section 7/8 POCSO Act, are not made out against the petitioners. Moreover, apart from the bald allegations made in the impugned F.I.R., no credible evidence whatsoever is forthcoming even prima facie indicating at the complicity of the petitioners in the commission of the alleged crime and the impugned F.I.R., which is a bundle of lies and product of malice, is liable to be quashed.
From the perusal of the F.I.R., it appears that on the basis of the allegations made therein, prima facie cognizable offence is made out. There is no ground for interference with the F.I.R. Therefore, the prayer for quashing the impugned F.I.R. is refused.
However, considering the nature of the allegations made in the F.I.R., the provisions of Section 157 Cr.P.C. and the view taken by the Apex Court in the case of Joginder Kumar Versus State of U.P.; 1994 Cr.L.J 1981, it is directed that the petitioners shall not be arrested in the abovementioned case, till the credible evidence is not collected by the Investigating Officer during investigation.
With the above directions, this petition is disposed of finally.
Order Date :- 26.11.2018 KS