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
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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.
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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
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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
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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
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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