Court No. - 55 Case :- MATTERS UNDER ARTICLE 227 No. - 8113 of 2018 Petitioner :- Rakesh Pandey Respondent :- State Of U.P. And Another Counsel for Petitioner :- Arvind Yadav,Bishram Tiwari Counsel for Respondent :- G.A.,H N Singh Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the petitioner, Sri H.N. Singh for respondent no. 2 as well as learned A.G.A. for the State and perused the record.
Present petition has been filed to set aside the order dated 22.1.2018 passed by the learned Additional Chief Judicial Magistrate-I, Gorakhpur in complaint case no. 2049 of 2016 (Guriya Devi Vs. Rakesh Pandey) as well as order dated 28.9.2018 passed by the Additional Sessions Judge/Fast Track Court-I, Gorakhpur in criminal revision no. 47 of 2018 (Rakesh Pandey Vs. State of U.P.) under Sections 376, 294 IPC, P.S. Chilua Tal, District Gorakhpur with a further prayer to stay the proceedings of the aforesaid case.
Learned counsel for the petitioner submits that on 25.4.2015 FIR has been lodged by the petitioner against the family members of the respondent no. 2 as case crime no. 167 of 2015 under Sections 323, 504, 506 and 325 IPC at police station Chilua Tal, district Gorakhpur and in the said case accused persons have been chargesheeted and cognizance has been taken by the learned Magistrate on 17.2.2016 Learned counsel submits that as a counterblast to the said FIR, an application under Section 156(3) Cr.P.C. has been filed by the respondent no. 2 alleging therein false and frivolous allegations that she has been committed to rape by the petitioner and FIR has been registered at police station Chilua Tal, district Gorakhpur as case crime no. 597 of 2016 under Sections 376 and 294 IPC wherein final report has been submitted by the police in favour of the petitioner. Thereafter, against the said final report, protest petition has been filed and learned Magistrate after rejecting the final report dated 17.7.2017 treated the matter as complaint case for recording the statements of victim under Section 200 Cr.P.C. Learned counsel submits that learned Magistrate has summoned the petitioner only on the basis of statement made by respondent no. 2. Aggrieved petitioner filed revision against the said summoning order and revisional court has also dismissed the said revision and affirmed the order dated 22.1.2018 passed by the learned Magistrate.
Learned counsel submits that there are ongoing dispute in between the parties and due to that enmity respondent no. 2 has falsely implicated the petitioner in the present case. Learned counsel submits that respondent no. 2 has alleged that she has been committed to rape by the petitioner in the night of 7/8.8.2016 but she has been medically examined after two months of the said incident and to the contrary there is nothing in medical report to establish the said allegation. Learned counsel submits that both the courts below have erred in law as both the orders have been passed without considering the facts of the case and without applying judicious mind, as such, this Court should come to rescue the petitioner.
Learned AGA has vehemently opposed the submissions advanced by learned counsel for the petitioner by contending that victim in her statement recorded under Section 164 Cr.P.C. clearly stated that she has been raped by the petitioner. Learned AGA further submits that it is settled law that if the Magistrate satisfied that prima facie case is made out he can summon the accused for the offence, as alleged, to face the trial and in the present case after considering the evidence on record and statement of victim learned Magistrate has found that prima facie case is made out against the petitioner and revisional court also found that there is no illegality in the said order, in view of this, present petition is liable to be dismissed by this Court.
In the present case, it is admitted fact that there is ongoing dispute between the parties and they are levelling allegations against each other. Learned Magistrate after considering the facts and circumstances of the case and after taking into consideration the statement of victim recorded under Section 164 Cr.P.C. summoned the petitioner. The said order has been challenged before the revisional court and revisional court has also after appreciating the facts and evidences on record, affirmed the order of learned Magistrate.
In view of the above, after hearing the learned counsel for the parties, learned A.G.A. and after perusing the orders impugned as well averments made in the present petition, this Court is of the opinion, that learned counsel for the petitioner could not point out any legal infirmity in the orders impugned or any ground, which may warrant any interference by this Court.
Writ petition is devoid of merit and same is dismissed, accordingly.
Order Date :- 27.11.2018
Shekhar