Court No. - 66
Case :- APPLICATION U/S 482 No. - 42718 of 2019 Applicant :- Rohit And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Sunil Kumar Tiwari, learned counsel for the applicants, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet dated 23.10.2017 and cognizance order dated 29.11.2017 as well as entire criminal proceedings of S.T. No. 118 of 2019 arising out of Case Crime No. 921 of 2017, under section 376-D, 506, 363, 34 IPC and 5/6 POCSO Act, P.S. Kairana, District Shamli pending in the court of Additional District Judge(F.T.C.), Shamli and also a prayer is made to stay the proceedings in this case till the disposal of this application.
I have gone through the FIR. It is mentioned in it that on 17.8.2017 at 11.00 p.m. the opposite party no. 2 had gone out of home and his wife and daughter were sleeping. The accused Sunil Kumar, Nitin Kumar and Rohit came to his house and at the pistol point narcotic drug was given to the wife of the opposite party no. 2 and thereafter the victim/daughter of opposite party no. 2 was lifted away to the house of co-accused Sunil Kumar where gang rape was committed and in unconscious condition she was thrown out of the house of opposite party no.2 at about 3.00 A.M. The victim was also threatened that her dirty video clipping had been made which would be placed on the net in case she would reveal anything about this occurrence. The Investigating Officer after having investigated the case, has submitted charge-sheet after recording statement of as many as nine witnesses. The veracity of the said witnesses cannot be tested in proceedings u/s 482 Cr.P.C.
It is argued by the learned counsel for the applicants that the accused applicants have been falsely implicated by the opposite party no. 2. There are various discrepancies in the statement of the victim, her father/ opposite party no. 2 and the F.I.R. version.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicants. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R.
P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicants may approach the trial court to seek discharge, if so advised, and before the said forum, they may raise all the pleas which have been taken by them here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 30 days subject to compliance of provision of section 209 Cr.P.C. to facilitate the trial court to hear and dispose of discharge application.
The applicants may appear before committal court within 30 days to get their case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused do not appear before the Committal court, the said court shall take coercive steps to procure their attendance.
I find that an application u/s 482 No. 32435 of 2019 moved by co-accused Nitin Kumar has been disposed of by another Bench of this Court vide order dated 26.8.2019.
With aforesaid direction, this application is finally disposed of.
Order Date :- 26.11.2019 Dhirendra/