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Md. Akram @ Akram Zahir vs The State Of Bihar on 25 April, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.24064 of 2019
Arising Out of PS. Case No.-77 Year-2016 Thana- MAHILA PS District- East Champaran

Md. Akram @ Akram Zahir Son of Zaheer Akhtar @ Md. Zahir Akhtar @
Sheikh Zaheer, Resident of Village – Banjaraha, P.S.-Kundwa Chainpur,
Distt.- East Champaran.

… … Petitioner.

Versus

1. The State of Bihar.

2. Nusrat Khatoon D/o Sheikh Mikaullah, W/o Md. Faishal Resident of Village

– Banjaraha, P.s.- Kundwa Chainpur, Distt.- East Champaran.

… … Opposite Parties.

Appearance :

For the Petitioner/s : Mr. Md. Anis Akhtar
For the Opposite Party/s : Mr. Pawan Kumar Chaurasia

CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT

Date : 25-04-2019

Heard learned counsel for the petitioner and

learned APP for the State on this application.

This application under Section 482 of the Code of

Criminal Procedure has been filed for quashing the cognizance

order dated 18.12.2017 passed by the 1st Additional Sessions

Judge-cum-Special Judge POCSO Act, East Champaran at

Motihari in Mahila P.S. Case No.77 of 2016, whereby the

learned Judge differing with the final form submitted by the

police took cognizance of the offence under Section 376 of the

Indian Penal Code and under Section 4 of the POCSO Act
Patna High Court CR. MISC. No.24064 of 2019 dt.25-04-2019
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against the petitioner.

The factual matrix of the case is that Mahila P.S.

Case No.77 of 2016 was instituted under Sections 341, Section342,

Section354-B, Section506 and Section376 of the IPC and Section3, 4 6 of the

POCSO Act against Md. Akram (petitioner) Sheikh Zahir

(father of the petitioner), Anjum Ara (mother of the petitioner)

and Sheikh Izhar, on the basis of written report of Nusrat

Khatoon with the allegation in succinct that on 27.11.2016 at 9

PM in course of defication in the field located in front of her

house, abtuptly Md. Akram arrived there and gagging her mouth

shoved her on the ground disrobed her and committed rape

against her. On the hulla made by her Sk. Serajul Haque, Aenul

Haque, Sk. Tufique, Nausad and others rushed there then the

accused left the scene. When her father and villagers

approached the father of Md. Akram and made complaint rest

accused persons extended threatening and made them to leave

their house. But on putting pressure by the villagers he took two

days time for performing marriage of his son with the

informant. After passing of the two days, when her father and

villagers insisted the father of the petitioner for marriage firstly

he avoided them and finally did not perform the marriage of

Md. Akram with the informant.

Patna High Court CR. MISC. No.24064 of 2019 dt.25-04-2019
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The aforesaid case was investigated by the police

and after investigation of the case the police submitted final

form finding the case untrue. But the learned lower Court,

perusing the case diary and material available on record,

differing with the police took cognizance of the offence against

the petitioner Md. Akram under Section 376 of the Indian Penal

Code and under Section 4 of the POCSO Act.

It is submitted by learned counsel for the petitioner

that no such occurrence as alleged ever took place. The

petitioner has been falsely implicated in the case by the

informant only to mount pressure upon him to perform marriage

with her and after investigation of the case and finding the case

untrue, police submitted final form against the accused persons.

It is further submitted that the doctor has reported the age of the

victim between 17-18 years and the headmaster of the school

has also reported the date of birth of the informant as

15.06.1997 as mentioned in the admission register and as per the

aforesaid date of birth the informant was major at the time of

occurrence. From perusal of the statement of the informant

recorded under Section 164 Cr.P.C., it appears that the informant

has lodged the case only to mount pressure upon the petitioner

to perform marriage with her. Now both the petitioner and the
Patna High Court CR. MISC. No.24064 of 2019 dt.25-04-2019
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informant have got married at some different places and living

peacefully and the matter has been compromised between the

parties. Hence, the aforesaid order of taking cognizance against

the petitioner is liable to be set aside.

On the other hand, learned APP for the State

vehemently opposing the application submitted that there is

allegation of outraging the modesty of the informant, who is a

minor girl, against the petitioner. The victim in her statement

recorded under Section 164 Cr.P.C. has also stated that the rape

has been committed against her by the petitioner and

considering the relevant paras of the case diary adumbrating the

place of occurrence, statement of the witnesses, medical report

of the victim and her statement under Section 164 Cr.P.C., the

learned Court below finding making out prima facie case

against the petitioner has taken cognizance of the offence

against the petitioner differing the final form submitted by the

police. The documents filed by the petitioner regarding age of

the informant (victim) is not to be considered at the stage of

taking cognizance. Hence, the aforesaid order passed by the

learned Court below is legal and valid and this application is

liable to be dismissed.

From perusal of the record, it appears that there is
Patna High Court CR. MISC. No.24064 of 2019 dt.25-04-2019
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specific allegation of committing rape against the informant by

the petitioner. As per the F.I.R., informant was minor at the time

of occurrence. Though after investigation of the case the police

has submitted final form against the accused persons but after

perusal of the relevant papers of case diary adumbrating

statement of witnesses, P.O., medical examination report of the

victim and her statement recorded under Section 164 Cr.P.C.

finding sufficient materials for taking cognizance against the

petitioners, the learned lower Court has taken cognizance of the

offence under Section 376 IPC and Section 4 of the POCSO Act

against the petitioner differing with the final form submitted by

the police. From perusal of the statement of the informant

recorded under Section 164 Cr.P.C., it appears that the informant

has candidly stated that the petitioner has committed rape

against her at the time of occurrence. Though the learned

counsel for the petitioner tried to persuade the Court that at the

time of occurrence the informant was major by filing medical

report of the informant as well as the letter of the headmaster of

the school but at the time of taking cognizance the aforesaid

defence evidence is not required to be considered.

Having regard to the facts and circumstances of the

case, I do not find any illegality in the impugned order. This
Patna High Court CR. MISC. No.24064 of 2019 dt.25-04-2019
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application is shorn of merit and is accordingly dismissed.

(Prakash Chandra Jaiswal, J.)

Trivedi/-

AFR/NAFR AFR
CAV DATE NA
Uploading Date 30.04.2019
Transmission Date 30.04.2019

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