Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Manju Rani Chauhan, J.
Asif Ahmad Siddiqui – Applicant
versus
State of U.P. and Anr. – Opp. Parties
Application U/S 482 No.5500 of 2023
Decided on 26.4.2023

Advocates:
Counsel for the Parties:
For the Applicant:Dr. C.P. Upadhyay, Advocate
For the Opp. Party: Harbansh Prasad Pandey, G.A.

IMPORTANT POINTS
(1) If a prima facie case is made out disclosing ingredients of offence alleged against accused, Court cannot quash a criminal proceeding.
(2) Cognizance of offence – Magistrate can ignore conclusion arrived at by investigating officer and independently apply his mind to the facts emerging from investigation and take cognizance of case.

Headnote:
(A) Protection of Children from Sexual Offences Act, 2012 – Section 5/6 – Indian Penal Code, 1860 – Sections 323, 363, 328, 376Gha(Ka), 377, 504 and 506 – Criminal Procedure Code, 1973 – Section 482 – Kidnapping, rape and criminal intimidation – Summoning order – Exercise of power under Section 482 Cr.P.C. to quash a criminal proceeding is only when allegation made in FIR or charge-sheet constitutes ingredients of offence(s) alleged – Evidence produced by accused in his defence cannot be looked into by Court, except in very exceptional circumstances, at initial stage of criminal proceedings – If a prima facie case is made out disclosing ingredients of offence alleged against accused, Court cannot quash a criminal proceeding – Power of quashing criminal proceedings should be exercised with circumspection and that too, in rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to reliability or genuineness or otherwise of allegations made in Final report or complaint – Finding on veracity of a material relied on by prosecution in a case where allegations levelled by prosecution disclose a cognizable offence, is not a consideration for High Court while exercising its power under Section 482, Cr.P.C. – Quashing application dismissed. (Paras 23, 26, 32 and 33)
(B) Criminal Procedure Code, 1973 – Section 190 – Cognizance of offence – Magistrate can take into account statements of witnesses examined by police during investigation and take cognizance of offence complained of and order issuance of process to accused – Section 190(1)(b) does not lay down that Magistrate can take cognizance of offence only if investigating officer gives opinion that investigation has made out a case against accused – Magistrate can ignore conclusion arrived at by investigating officer and independently apply his mind to the facts emerging from investigation and take cognizance of case – Once a final report is submitted against some body and simultaneously a charge-sheet is submitted against others, if Magistrate takes cognizance on the basis of charge-sheet and accepts final report, a protest petition will lie and if such protest petition has all ingredients mentioned in Section 2(d) of Cr.P.C., it can be treated as a complaint and proceedings of complaint case may go on involving Sections 200 and 202 Cr.P.C. – Magistrate can then pass order according to law. (Paras 21 and 22)
Result: Application dismissed.

JUDGMENT

Manju Rani Chauhan, J.—Heard Mr. Dr. C.P. Upadhyay, learned counsel for the applicant, Mr. Pradeep Kumar Mishra, Advocate holding brief of Mr. Harbansh Prasad Pandey, learned counsel for the informant and Mr. Amit Singh Chauhan, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the order dated 30.01.2023 passed by Additional District and Sessions Judge/Special Judge, POCSO Act, Allahabad in Special Sessions Trial No.2/2023 arising out of Case Crime No.173 of 2022, under Sections 323, 363, 328, 376Gha(Ka), 377, 504, 506 IPC and Section 5/6 POCSO Act, Police Station - Shankargarh, District - Prayagraj.

3. The brief facts as enumerated in the writ petition are as follows:—

(i) an FIR was lodged on 26.06.2022 at about 19:23 hrs. by Akbar Ali under Sections 366, 504 IPC, which was registered as Case Crime No.0173 of 2022 against three persons, namely, Nazim, Hashim and Khurshid with the allegations that the informant’s minor daughter, 15 years old, was enticed away by Nazim son of Samsuddin, resident of Nari Bari, Mobile No.9198997737 on 21.06.2022. Since the aforesaid date, Nazim was not available at his residence and his mobile number was also switched off. When the informant went to Nazim’s house, his brother; Hashim and brother-in-law; Khurshid, used abusive words and also spoke ill about the informant’s daughter. After making efforts for tracing her daughter, an application was given on which the present FIR has been lodged.

(ii) during investigation, the statement of the victim u/s 161 Cr.P.C. was recorded on 25.08.2022, which finds place at C.D. Parcha No.6 (after more than two months of the FIR), wherein she herself has stated that her father’s name is Akbar Ali and she is resident of Surval Chandel, Nari Bari, P.S.Shankargarh, Prayagraj. She is aged about 19 years old and for fighting with her brother and sister, she was scolded by her mother and being annoyed, she left her house on 22.06.2022 at about 01:00 o’clock and went to Ajmer Sharif. Thereafter, she talked to her sister on telephone and got to know that FIR has been lodged by her father, hence she returned back, by herself, to Prayagraj.

(iii) Subsequently, the victim Nazia was medically examined on 27.08.2022 and during course of medical examination, she has stated before the doctor that the co-accused Nazim came to her house on 22.06.2022, when she was sleeping, she was made to smell some intoxicating substance due to which she fainted and after regaining her conscious, she found herself at Allahabad where a person named Asif was also present. She also stated that both the persons, i.e. Nazim and Asif, who have forcefully committed rape upon her for two days, later on, she was taken to Jammu where she was kept for two months and forcefully, physical relationship was established with her by them. The victim was dropped to Allahabad on 25.08.2022 by Nazim and three unknown persons and she was left near police station.

(iv) Thereafter, the statement of the victim under Section 164 Cr.P.C. was recorded on 30.08.2022, which finds place in CD Parcha No.7, wherein she has stated that she is 15 years old. While she was sleeping at her house on 22.06.2022 in the night at about 02:00 a.m., Asif Siddiqui, resident of Nari Bari and Khurshid came there and made her smell some intoxicating substances due to which she became unconscious and after regaining conscious, she found herself at Allahabad where she was locked in a room and the aforesaid persons forcefully established physical relationship with her. Thereafter, Asif and Nazim fully aware and conscious did wrongful act with her. They, also beat and forcibly establish natural and unnatural physical relationship with the victim. She was kept for two days at Allahabad, thereafter, Nazim threatening the victim, took her to Jammu, where he committed rape upon her for two months relentlessly. She was also threatened by Nazim for her life and her father’s life in case