HIFZUR RAHMAN Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Ms. Tanisha Jahagir Monir, learned counsel for the applicants, Sri Rajeev Kumar Saini, learned counsel for the informant and learned A.G.A. for the State.

(2.) The present application u/s 482 Cr.P.C . has been filed for quashing the non-bailable-warrant dated 15.11.2019 in Special Session Trial no. 08 of 2019 issued by Additional District and Sessions Judge, First, District Hapur in Criminal Case no. 1984 of 2018 arising out of Case Crime no. 256 of 2017, u/s 363, 366, 376, 420, 120-B IPC and Section 4 of POCSO Act, P.S. Kakore, District Bulandshahar ( State vs. Mohd. Rizwan and another ).

(3.) The brief background of the case is that the applicants had challenged the F.I.R. registered as Crime no. 256 of 2017 in Criminal Misc. Writ Petition no. 7290 of 2017 and it was submitted that co-accused Naushad was working as servant in medical store of the first informant and he had enticed away the daughter of the informant. During investigation, it was alleged that it was on account of conspiracy hatched by the applicants the victim was kidnapped, however, the victim was recovered along with co-accused Naushad. The Division Bench of this Court disposing of it with a direction that the applicants shall not be arrested till the submission of police report u/s 173(2) Cr.P.C . but shall cooperate with the investigation of the case. However, during investigation, statement of the victim was recorded u/s 164 Cr.P.C ., which reflects that she was a minor girl and there is allegation of gang rape against the applicants and other co-accused and consequently on the basis of evidence collected during investigation charge-sheet was submitted against the applicants in Case Crime no. 256 of 2017, u/s 363, 366, 376, 420, 120-B IPC and Section 4 of POCSO Act, P.S. Kakore, District Bulandshahar. The impugned charge-sheet and the proceedings arising thereof were challenged by the applicants in Application u/s 482 No. 16942 of 2018, however, the Court considering that prima facie on the basis of statement of the victim recorded u/s 164 Cr.P.C . and other evidence, commission of offence inter-alia u/s 376 IPC and Section 4 of POCSO Act is made out and thus the said application was dismissed vide order dated 28.5.2018. However, the Court while dismissing the application observed that it shall not preclude the applicants from filing an appropriate application, which shall be decided in terms of the decision rendered in Amrawati and another vs. State of U.P ., 2004 (57) ALR 290, Lal Kamlendra Pratap Singh vs. State of U.P ., 2009 (3) ADJ 322 ( SC) and Brahm Singh and others vs. State of U.P. and others , 2016 (7) ADJ 151.