Court No. - 75
Case :- APPLICATION U/S 482 No. - 34700 of 2018 Applicant :- Pesh Mohammad And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Srivastava,Ramesh Kumar Mishra Counsel for Opposite Party :- G.A.,Manoj Kumar Gupta
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicants with the prayer to quash the Charge-sheet dated 14.04.2018, Cognizance order dated 19.07.2018 as well as the entire proceedings of Special Case No.131 of 2018 (State Vs. Javed & Others) arising out of Case Crime No.2000 of 2017, under Sections 363, 504, 506, 366, 368, 376D, 328 IPC and Section 5(g)/6 of the Proctection of Children from Sexual Offences Act, 2012, Police Station Khutar, District Shahjahanpur, pending in the Court of Additional District & Sessions Judge, Court No.8, Shahjahanpur.
As per the allegations made in the FIR, it is alleged that on 27.09.2017 at about 4:00 P.M., the victim had gone to answer the call of nature where the applicants had forcibly kidnapped her in a vehicle. In the statement of the victim recorded under Section 164 CrPC, specific allegations of commission of rape has also been alleged and the applicants are said to have threatened her for life.
Learned counsel for the applicants has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, charge-sheet, cognizance order as well as the entire proceedings cannot be quashed.
Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the charge-sheet, cognizance order as well as the entire proceedings is therefore refused.
However, it is directed that if the applicants appear and surrender before the court below and apply for bail, their prayer for bail shall be considered and decided as expeditiously as possible after giving opportunity of hearing to both the parties.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of.
Order Date :- 28.11.2019 Zafar