Court No. - 11
Case :- APPLICATION U/S 482 No. - 42755 of 2018 Applicant :- Mustafa Kamal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akash Mishra,Rahul Singh Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Present application under Section 482 Cr.P.C. has been filed for quashing charge sheet dated 23.3.2018 as well as cognizance order dated 5.5.2018 passed by the Additional District & Sessions Judge, Court No. 10, Moradabad in S.T. No. 337 of 2018 (State Vs. Mustafa and others) relating to case crime no. 349 of 2017, under Sections 363, 366, 376 IPC and Sections 3/4/16/17 of the POCSO Act, Police Station Dilari, district Moradabad. Further prayer has been made for staying the proceedings of the aforesaid case.
Heard learned counsel for the applicant and learned A.G.A.
Applicant has earlier approached this Court invoking jurisdiction under Section 482 Cr.P.C. and this Court in the Application U/S 482 No. 19041 of 2018 passed the following order :
"Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 23.03.2018 as well as cognizance order dated 05.05.2018 passed by Additional District and Sessions Judge, Court No. 10, Moradabad in S.T. No. 337 of 2018 (State Vs. Mustafa and others) relating to Case Crime No. 349 of 2017, under Sections 363, 366, 376 I.P.C. and 3/4/16/17 of the POCSO Act, P.S. Dilari, District Moradabad.
Learned counsel for the applicants submits that this is a case of consensual relationship between the parties and that the FIR has been lodged only because opposite party no. 2, who happens to be the father of the girl, is opposed to the marriage between applicant no. 1 and his daughter. Applicant no. 2 is said to be the friend of applicant no. 1 and he has been falsely implicated in the present case. At present, while it may appear that there was some relationship between applicant no. 1 and daughter of opposite party no. 2, however in the entirety of the fact sand circumstances of the case and law as it stands, it is difficult to quash the prosecution since it is doubtful whether the daughter of opposite party no. 2 had attained age of majority. While the applicants relied on the radiological report, Sri Atul Singh, who has filed his appearance on behalf of the opposite party relied on the High School Certificate. It is also on record that the habeas corpus petition filed by the applicant had been dismissed by this Court on the issue of age of daughter of opposite party no. 2.
Considering the above, the prayer to that extent on behalf of applicant no.1, namely, Mustafa Kamal is hereby refused.
However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicant appears and surrenders before the court below within 45 days and no more, 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.
So far as applicant no.2 is concerned, matter requires consideration.
Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.
Issue notice to opposite party no.2 returnable at an early date.
Opposite parties may file their counter affidavits within six weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List thereafter.
Till then, no coercive measure shall be taken against the applicant in the aforesaid case"
Applicant has not complied with the directions given in the order dated 6.6.2018 and again approached this Court for quashing the charge sheet dated 23.3.2018 and cognizance order dated 5.5.2018.
Keeping in view the order passed by this Court on 6.6.2018 relief claimed in this application could not be allowed.
In view of the aforesaid, the application is dismissed.
Order Date :- 29.11.2018 Sachdeva