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Atiq Khan vs State Of Up And 2 Ors on 29 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 81

Case :- APPLICATION U/S 482 No. – 43617 of 2019

Applicant :- Atiq Khan

Opposite Party :- State Of Up And 2 Ors

Counsel for Applicant :- Vineet Kumar Singh,Mr. H.N. Singh,Senior Advocate

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri H.N. Singh, learned Sr. Advocate assisted by Sri Vineet Kumar Singh, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.

The present application has been filed with a prayer to quash the impugned summoning order dated 7.8.2019 passed by Additional Session Judge, Court No. 1, Jalaun in Criminal Case No. 62 of 2019, under Sections 452, Section376, Section506 IPC and Section 3/4 POCSO Act and 3(2)(V) S.C./SectionS.T. Act, arising out of Case Crime No. 11 of 2019, under Sections 452, Section354 IPC and Section 7/8 POCSO Act and Section 3(2)(Va) SC/SectionST Act, P.S. Jalaun, District Jalaun.

It has been argued by the learned counsel for the applicant that summoning order dated 7.8.2019 should be quashed because by the said order the trial court has summoned the accused-applicant under Section 376 IPC also. The allegation against him was of offence under Section 354 IPC. He has drawn attention of this Court to the statement of victim given under Section 161 Cr.P.C., in which she has supported the prosecution version as mentioned in the F.I.R. in which there was no allegation of rape and the allegation was confined to only molestation. Subsequently she made improvement on her statement while she gave statement u/s 164 SectionCr.P.C. before Magistate in which she has levelled allegation of rape against the applicant. It is further argued that accused-applicant was already on bail for offences under Section 354 IPC and other sections except Section 376 IPC as well as 3/4 of POCSO Act.

Learned A.G.A. has opposed the prayer of quashing the summoning order.

I have gone through the F.I.R.. It is recorded in it by the opposite party no. 3, who is father of the victim, that on 13.1.2019, when he had gone out to work in the field, at about 1:00 pm in the afternoon accused entered his house on the pretext of getting the victim admitted in High-school and seeing her alone started touching her tender parts of the body and when she resisted and cried loudly, in the meantime the informant had also returned home and then the victim had revealed all the facts to the informant.

Investigation was conducted by Investigating Officer, who recorded statements of the victim under Section 161 Cr.P.C. in which she has stated the same version as mentioned in F.I.R. but in her statement recorded under Section 164 Cr.P.C., she has stated that she was raped by the accused-applicant (Galat Kam Kiya). Since the investigating officer has found victim to be minor, hence offence under Section 3/4 POCSO Act has also found to have been made out. As regards the modification in statement of the victim under Section 164 Cr.P.C., the same is subject matter of evidence, which cannot be taken into consideration in proceedings under Section 482 Cr.P/C.. It cannot be denied that cognizable offence is not made out on the basis of evidence on record.

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 SectionCr.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 SectionR. 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, 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 summoning order dated 7.8.2019 is refused.

However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.

The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.

With the above direction, application u/s 482 Cr.P.C. is disposed of.

Order Date :- 29.11.2019

A.P. Pandey

 

 

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