GANESH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. Vineet Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.

(2.) The present 482 Cr.P.C . application has been filed to quash the impugned orders dated 19th September, 2019 and 23rd December, 2019 passed by the Additional Sessions Judge, Court no.1, Maharajganj in Special Sessions Trial No. 364 of 2019 ( State vs. Ganesh and Others ), under Sections 363 , 366 , 376 , 504 , 506 I.P.C. and Sections 16/17 and 3/4 POCSO Act, Police Station-Brijmanganj, District-Maharajganj, arising out of Complaint Case No. 46 of 2018 (Smt. Saroj Vs. Ganesh and Others), Police Station-Brijmanganj, District-Maharajganj upto the extent of summoning the applicants under Sections 363 , 366 , 504 , 506 I.P.C. and Sections 16/17 POCSO Act.

(3.) Learned counsel for the applicant submits that the present first information report lodged by opposite party no.2, namely, Smt. Saroj is nothing but a bundle of lie and the same has been lodged only for exploiting the applicant along with co-accused, namely, Kaushilya Devi, Radhey Shyam, Rinki and Kamlesh by indulging their names in a fake, false and frivolous case. The entire prosecution story as unfolded in the first information report is absolutely a self-made story projected by opposite party no.2. It is further submitted that opposite party no.2 has filed an application under Section 156 (3) Cr.P.C . against the applicant and co-accused namely, Kaushilya Devi, Radhey Shyam, Rinki and Kamlesh in the Court of Additional District and Sessions Judge-I, Maharajganj, under Section 323 , 504 , 506 , 363 , 366 , 376 I.P.C. and Sections 3/4 POCSO Act on 4th July, 2018 with the allegation that her minor daughter namely, Kiran was enticed away on 6/7th May, 2016 by the applicant with the help of the aforesaid co-accused, who are mother, father, sister and brother-in-law of the applicant and was raped by the applicant, thereafter the applicant left the victim at Gorakhpur on 1st December, 2017, after which, she came back to her house at Maharajganj on the same day and apprised about the alleged offence having been committed upon her to opposite party no.2. It has further been stated that in the statement recorded under Section 202 Cr.P.C. as P.W.-1, the victim, namely Kiran has stated that she went along with the applicant on his assurance to marry her and he also committed raped upon her. It is further submitted by the learned counsel for the applicants that for the alleged incident dated 6/7th May, 2016, the application under Section 156 (3) Cr.P.C . has been filed by opposite party no.2 after more than two years and two months from the date of alleged incident for which no plausible explanation has been given, which makes the entire prosecution case doubtful. There is no medical examination report of victim being available on record to demonstrate the factum of alleged sexual violence said to have been committed upon the victim. It is further submitted by the learned counsel for the applicants that the victim went along with the applicant on her own free will as she was in love of the applicant. There is no independent or public witness on the basis of which it can be said that the applicant is involved in the commission of the alleged offence. Since the victim was in love with the applicant he has been deliberately dragged into the impugned criminal proceedings at the instance of opposite party no.2 and the learned court below while passing the impugned summoning order has omitted to consider the material fact that the applicant has not committed any offence as alleged. Learned counsel for the applicants, therefore, submits that the present proceedings initiated against the applicant are not only malicious but also amount to an abuse of the process of the Court. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicant that the proceedings of the above mentioned complaint case are liable to be quashed by this Court.