Court No. - 24
Case :- APPLICATION U/S 482 No. - 2621 of 2019 Applicant :- Misiryar Khan Opposite Party :- State Of Up And Another Counsel for Applicant :- Amar Bahadur Maurya Counsel for Opposite Party :- G.A.
Hon'ble Chandra Dhari Singh,J.
This application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of Special Criminal Case No. 130 of 2018 (State vs Shoiab and others) arising out of Case Crime No. 748 of 2018, under Sections 363, 366, 376-D IPC and 5g/6 of POCSO Act, police station Shahbad, district Rampur as well as summoning order dated 1.11.2018 passed by learned Special Judge (POCSO Act)/Additional Sessions Judge- Ist, Rampur in the case.
Brief facts of the case are that the FIR of the present case was lodged by father of the victim mentioning therein that on 8.11.2017 when he had gone for his labour work outside the house and his wife had also gone to the market for purchasing the fodder to animals and his daughter was alone in the house, the accused-applicants, who are four in number, taking advantage of the same came to his house and on some pretext took away the girl.
Learned counsel for the applicant submitted that the applicant and the daughter of opposite party No. 2 are major and they have also solemnized marriage on their free will. Learned counsel for the applicant further submitted that the applicant and victim have also filed a Criminal Misc. Writ Petition No. 28123 of 2017 before this Court and in the said petition the victim has given the statement that she is major and performed marriage with the applicant-petitioner No. 2 without any pressure, threat or coercion and they are living happily as husband and wife Thereafter, this Court vide order dated 1.5.2018 has disposed of the writ petition with a direction that the petitioners shall not be arrested in that case till submission of police report on the basis of statement of counsel for opposite party that the girl has come back to her parents house and at present she is residing with him. The investigating officer has recorded the statement of the victim under Section 161 Cr.P.C. in which she has levelled the allegation of rape against the applicant. According to the statement of the victim recorded under Section 164 Cr.P.C. before the Magistrate, she has also made the allegation of rape against the applicant.
The contention of learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention. The investigating officer has wrongly submitted the charge sheet against the applicant in the aforesaid sections and learned Magistrate without application of judicial mind in a mechanical way passed the summoning order, which is nothing but an abuse of the process of the court of law. The victim is a consenting party and solemnized marriage on her free will with the applicant and has given the statements under Section 161 and 164 Cr.P.C. on tutoring of her parents.
Per contra, learned Additional Government Advocate appearing for the State has opposed the above mentioned submissions made by the learned counsel for the applicant and submitted that after considering the evidence and materials the court below has passed the summoning order.
The prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. has fully supported the prosecution version. In this case a heinous crime has been committed and the accused must suffer for its consequences. A rapists not only violates the victim personal integrity, but leaves indelible marks on the very soul of the helpless girl. As a matter of fact the crime is not only against the victim, it is against the whole society as well. The rape with a girl creates an atmosphere of fear, which is universally abhorred by the society. It demands just punishment from the Court and to such a demand, the Courts of law are bound to respond within the legal parameters. It is a demand of justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in Court.
In view of what has been indicated herein above, I find no good ground to quash the entire proceedings or summoning order passed by learned Special Judge (POCSO Act)/Additional Sessions Judge-Ist, Rampur.
Accordingly, the application is rejected.
Order Date :- 22.1.2019 Sumaira