Court No. - 65
Case :- APPLICATION U/S 482 No. - 28690 of 2019 Applicant :- Rohit Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Usha Srivastava,Jalaj Kumar Tripathi,Saurabh Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Saurabh Tripathi, learned counsel for the applicant, Sri G.P Singh, 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 21.12.2018 as well as cognizance order dated 16.02.2019 and stay the entire proceedings of Case No.663 of 2019 (State vs. Akhlak and others) Case Crime No. 234 of 2018 under sections 452, 376-D IPC, Police Station Amariya, District Pilibhit pending before the court of Judicial Magistrate, Pilibhit.
It is argued by learned counsel for the applicant that in the FIR, there was no allegation of rape made by opposite party no.2 but in her statement u/s. 164 Cr.P.C., she has levelled allegation of gang rape against the applicant along with two other persons. The applicant has been falsely implicated in the present case only because one of the relatives of the accused/applicant namely, Shagir Ahmad lodged an FIR against the son of opposite party no.2 Mohd. Faizan u/s. 452, 376 IPC in which chargesheet has been submitted and when the bail application of the said accused was rejected in that case by the trial court then this false case has been initiated. Therefore, the present case is nothing but malicious prosecution against the applicant and hence, the charge-sheet deserves to be quashed.
On the other hand, learned A.G.A. has opposed the prayer stating that after investigation, police has submitted the charge- sheet and at this stage the scrutiny of the evidence of the witnesses recorded by the Investigating Officer cannot be made.
I have gone through the impugned FIR.
As per the FIR on 27.09.2018, at about 10:30 P.M. when the husband of opposite party No. 2 had gone out between 9 to 10 P.M., and opposite party No. 2 was sleeping in her room alongwith her children, all the three accused namely Akhlaq, Riyaz Ahmad and Rohit (the applicant) entered her room and tried to outrage her modesty. After the investigation of the case which includes recording of statement of victim under Section 164 Cr.P.C. in which she has clearly stated that all the three accused persons have committed rape upon her, charge-sheet has been submitted. The statements of the witnesses could not be scrutinized in proceedings under Section 482 Cr.P.C. and it cannot be denied that cognizable offence is made out on the basis of evidence gathered by the Investigating Officer.
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 applicant. 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 applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him 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 15 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 applicant may appear before Committal Court within 15 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 15 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal Court, the said Court shall take coercive steps to procure his attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 25.7.2019 Madhurima