ZUBAIR Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli ­cation has been filed by the applicant Zubair with a prayer to quash the charge -sheet dated 28.12.2008 in case, crime No. 150 of 2008 under sections 363, 366, 376 and 120 -B I.P.C. P.S. Haldaur District Bi -jnor pending in the Court of IInd Addi ­tional Chief Judicial Magistrate, Bijnor in criminal case No. 159 of 2009.

(2.) THE facts of the case in brief are that the F.I.R. of this case has been lodged by O.P. No. 2 Smt. Hafiza Khatoon on 22.3.2008 at 10.30 a.m. in respect of the in ­cident which had occurred on 12.3.2008 at about 7.00 p.m. in case crime No. 150 of 2008 under sections 363 and 366 I.P.C. P.S. Haldaur District Bijnor in which the appli ­cant and the co -accused Kari Intizar are named as accused, it is alleged that the husband of the first informant was serving in Saudi Arabia. The co -accused Kari Inti ­zar was a teacher in a Madarsa, who was tutoring the prosecutrix, the daughter of the first informant at her residence, she was enticed away by the applicant and co -accused Kari Intizar, during investigation the alleged kidnappee namely Km. Taran -num Jahan was recovered from the railway station from the company of the co -accused Kari Intizar, she disclosed in her statement recorded under section 161 Cr.P.C. that she was born in the year 1994. The co -accused Kari Intizar, who was serving in a Madarsa, was tutoring her for the last one year, she was enticed away by him, thereaf ­ter she was taken to Bijnor, Delhi and Banglore, he committed rape with her without her consent, he wanted to marry with her whereas he had already married and he was the father of six or seven children. The prosecutrix was medically examined, ac ­cording to medical examination report she was aged about 18 years and no definite opinion about rape could be given. The I.O. recorded the statement of other witnesses also, after completing the investigation the I.O. submitted the charge -sheet dated 28.12.2008 against the applicant under sec ­tions 363, 366, 376 and 120 -B I.P.C. on which the learned IIIrd A.C.J.M. Binjor has taken cognizance on 20.1.2009, being ag ­grieved from the charge -sheet and the cognizance order dated 20.1.2009, the ap ­plicant filed this application for quashing the same.

(3.) IT is contended by the learned Counsel for the applicant that the applicant is named in the F.I.R., the main allegation is against the co -accused Kari Intizar during investigation also the allegation of commit ­ting rape was made against the co -accused who wanted to marry with the prosecutrix, the prosecutrix is a major girl, she is about 18 years of age, according to the medical examination report, she was having love affairs with the co -accused Kari Intizar, she moved in his company from one to another place without any protest but she was ap ­prehended from the railway station when she was ready to go to some other place but during the pendency of the investigation and prior the recovery of the alleged prose ­cutrix, she had filed a complaint against O.P. No. 2 and others in the Court of learned Judicial Magistrate, Meerut under sections 452, 323, 504 and 506 I.P.C. alleg ­ing therein that O.P. No. 2 and others wanted to perform her marriage with too, old person, she was not ready then she was beaten by them and extended threat to her life, she was subjected to cruelty then she left the house of her parents on 11.3.2008, she has performed marriage with the co -accused Kari Intizar on 16.3.2008, such statement was given by her under section 200 Cr.P.C. in the Court of learned Magis ­trate concerned, considering the same, pro ­ceedings pending in the Court below have been stayed by another Bench of this Court on 1.8.2008 in Criminal Misc. Application No. 19444 of 2008 in respect of the co -accused Kari Intizar and Iftikhar, therefore, the proceeding pending against the appli ­cant may also be stayed thereafter the same may also be quashed after hearing both the parties.