The Allahabad High Court has dismissed an application filed seeking quashing of the FIR lodged against the accused of raping a minor.
A Single Bench of Justice Manju Rani Chauhan passed this order while hearing an application under section 482 filed by Asif Ahmad Siddiqui.
The 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 arising out of Case under Sections 323, 363, 328, 376Gha(Ka), 377, 504, 506 IPC and Section 5/6 POCSO Act, Police Station – Shankargarh, District – Prayagraj.
The 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 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 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 FIR has been lodged.
ii) during investigation, the statement of the victim u/s 161 Cr.P.C was recorded on 25.08.2022, 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 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 the police station.
iv) Thereafter, the statement of the victim under Section 164 Cr.P.C was recorded on 30.08.2022, 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 acts with her. They also beat and forcibly establish natural and unnatural physical relationships 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 of denying to fulfill his wish. As she fell ill due to repeated forceful sexual assault, the accusedNazim left her at Allahabad, whereafter she was taken by Niyaz Khurshid to Sankargarh police station, who left her there. After recording the statement under Section 164 Cr.P.C., the victim was handed over to her father.
v) Subsequently, the statement of mother of victim (wife of the informant) recorded on 06.09.2022, wherein she has stated that her 15 years old daughter was enticed away by Asif Siddiqui son of Kamal, resident of Nai Bazar, Karma, P.S-Ghoorpur, District-Prayagraj and Khurshid son of Abdul Razzak, resident of Badokhar, P.S-Koraon, District-Prayagraj on 22.06.2022 at about 02:00 in the night. The victim was made to smell some intoxicating substance due to which she became unconscious and, thereafter, she was taken to Naribari market, where she was offered tea in which some intoxicating substance was mixed, after consuming which, she became unconscious. She was then taken to Allahabad where she was locked in a room and forceful physical relationship was established by Asif Siddique and Nazim, son of Samsuddin, resident of Nari Bari, P.S. Sankargarh, Prayagraj. They beat her and forcibly established a natural and unnatural physical relationship with the victim. She was kept for two days in Allahabad and, thereafter, she was taken by Nazim to Jammu, where Nazim did wrongful acts with her for two months, after threatening to kill her and her father, in case she did not permit him to do the wrongful act. After repeatedly being sexually exploited by Nazim,when she became ill, she was dropped by Nazim to Allahabad, from where Khurshid took her to Police Station-Sankargarh and left there. It has also been stated that all the aforesaid facts about the incident was narrated by the victim to her mother.
vi) After investigation, the first charge sheet has been submitted as Charge Sheet by the police against Khurshid only, whereas investigation continued for the other accused persons. Thereafter, the co-accused Nazim was arrested by the Police. In the meantime, the informant has approached before this Court by means of filing a criminal writ petition for fair and partial investigation wherein the coordinate bench of this court vide order dated 20.12.2022 was pleased to direct the respondents therein for expeditiously fair and partial investigation.
vii) An application was moved by the applicant before the Investigating Officer mentioning therein that the contradictions in the statement of the victim under Section 164 Cr.P.C, the mother of the victim and all the facts about the CDR as detailed in parcha no VI dated 16.12.2022. On the aforesaid application of the applicant, second statement of the mother of the victim was recorded on 17.12.2022, which finds place in S.C.D Parcha no VII, wherein the specific question was raised by the Investigating Officer regarding statement of the victim under Section 164 Cr.P.C, in which the victim has stated about Asif Siddiqui, Nari Bari, whereas the victim’s mother in her statement stated that Asif Siddique son of Kamal, resident of Nari Bazar, Karma, Police Station-Ghoorpur, Prayagraj. The question, as to how the victim’s mother recognized Asif and on what basis, she has stated the address as Karma, in place of Nari Bari, she has stated that she does not know Asif and she has narrated everything as has been told by her husband about Asif. She has also specifically stated that Asif is not related to her, she has given the address of Asif as told by her husband. Her husband’s nephew Mohd Akhtar resides at Nai Bazar, Karma.
viii) Subsequently, the Second charge sheet being a charge sheet dated 27.12.2022 has been submitted against Nazim and Hasim. Hence all the three accused named in the FIR have been chargesheeted. The applicant was not charged in the case as there was no evidence against him for his involvement in the aforesaid offence.
ix) After submission of the aforesaid charge sheet against all the accused named in the FIR, an application was moved by the informant before the Additional District and Sessions Judge, Prayagraj under Section 190(1)(B) CrPC for summoning the accused-applicant stating therein that on the basis of statement of the victim under Section 164 CrPC, the involvement of the applicant is clear and prima facie case is established against the applicant. The concerned Magistrate without applying his judicial mind and solely relying upon the statement of the victim under Section 164 Cr.P.C has summoned the applicant passing a non-speaking and unreasonable order dated 30.01.2023. Hence the case has been filed.
In view of the aforesaid, the Court found that the submissions made by the counsel for the applicant call for adjudication on pure disputed questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. The prayer for quashing the entire proceedings is refused as I do not see any abuse of the Court’s process either.
“In the case, the name of the accused-applicant has come into light from the statement of the victim recorded under Section 164 Cr.P.C While summoning the applicant, on the basis of the statement under Section 164 Cr.P.C, the Magistrate acted on the basis of an independent application filed by the de facto complainant and found that there was sufficient material before him showing complicity of the applicant in the aforesaid case although his name did not find place in the charge-sheet. Thus, for summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police, some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. The statement made under Section 164 of the Code could also be considered for such purpose as has been held by the Apex Court in the case of Nahar Singh vs The State of U.P and Another reported in (2022) 5 SCC 295.
The Court, however, may clarify that whatever is said in this judgment is purely tentative and limited to the purpose of judging the worth of the prayer to quash proceedings as well as impugned orders. It is and ought not be regarded by the Trial Court as any kind of a comment or evaluation about evidence, which is yet to surface during trial. The truth of the prosecution case has to be established beyond doubt at the trial in accordance with law. However, the Court is of opinion that this is not a case, where the prosecution ought to be scuttled at the threshold in the exercise of powers under Section 482 of the Code”, the Court observed while dismissing the application.