Zakir @ Javed vs State of U.P. and Another

Vinod Prasad, J.—In the revised list none is present on behalf of respondent no. 2. Learned counsel for the applicant and learned AGA are present.

Zakir @ Javed has approached this Court invoking this Court''s inherent power under Section 482 Cr. P.C. with the prayer that proceedings of Case No. 6592 of 2005 (State Vs. Haji Kamal and another) relating to Crime No. 487 of 2005, under Section 366 I.P.C., Police StationCivil Lines, DistrictRampur pending in the court of Chief Judicial Magistrate, Rampur be quashed. Interim prayer is for stay of the aforesaid proceeding pendente lite this Criminal Misc. Application.

Shorn of unnecessary details and stated briefly, the facts of the present application are sketched below.

Mohd. Ayaz Khan @ Bullan Sahab lodged an F.I.R. on 14.07.2005 against the applicant Zakir @ Javed and Haji Kamal which was registered as Crime No. 487 of 2005, under Section 366 I.P.C. at Police StationCivil Lines, DistrictRampur vide annexure no. 1 to this application. Perusal of the said annexure no. 1 indicates that Hina Khan is the daughter of the informant. In respect of her elopement an application was filed on 10.05.2005 by the informant which did not yield any result. From the reliable sources, the informant / respondent no. 2 came to know that accused Haji Kamal has kidnapped his daughter and has illegally detained her at an unknown place and she was being physically assaulted as well. It was alleged that the said accused is a characterless person and some complaint is also under investigation against him before the Superintendent of Police, Rampur. It was further alleged that the aforesaid accused Haji Kamal was attempting to send Hina Khan to a foreign country for the purpose of being sexually assaulted. It was, therefore, averred that the passport, visa, etc., of Hina Khan be seized. It was also alleged that a case is pending against Hina Khan in district court at Nainital its title being Nisar Khan Vs. Hina Khan, and therefore also her leaving the country will not be conducive to the interest of justice. It was further alleged that Hina Khan left the house of the informant with cash and jewelery worth Rs. 5,00,000/ (Five Lacs) two months prior on the pretext that she was going to visit her younger sister Bubna. It was next alleged that from the reliable sources the informant had come to know that the aforesaid accused Haji Kamal in connivance with Zakir @ Javed (the present applicant) had detained Hina Khan in Bombay.

The offence was registered and investigated and the statement of the informant vide annexure no. 3 was recorded who supported the allegations leveled in his F.I.R. under Section 161 Cr. P.C. The statements of witnesses Fahim and Moonis were also recorded. Concluding the investigation a chargsheet, annexure no. 6, was filed against Haji Kamal and the present applicant Zakir @ Javed on 08.09.2005 by the Investigating Officer, Harikesh Singh. Hence this Criminal Misc. Application with the prayer to quash the proceedings initiated on the basis of the said chargesheet before the Chief Judicial Magistrate, Rampur as Criminal Case No. 6592 of 2005 (State Vs. Haji Kamal) under Section 366 I.P.C., Police StationCivil Lines, DistrictRampur relating to Crime No. 487 of 2005.

A perusal of the record indicates that Hina Khan, the victim, was directed to present herself before Chief Judicial Magistrate, Rampur, who was directed to get her medically examined for determination of her age and thereafter record her statement under Section 164 Cr. P.C. and then decide question of her custody.

Report of Additional Chief Judicial Magistrate, Court No.1, Rampur dated 16.04.2010 indicates that Hina Khan was medically examined by the Chief Medical Officer, Rampur and according to her test reports she was found to be 35 years of age. In statement under Section 164 Cr. P.C., Hina Khan mentioned her age to be 39 years. The report of Additional Chief Judicial Magistrate, Court No.1, Rampur further indicate that Hina Khan expressed her desire and go with her husband, Haji Kamal.

Learned counsel for the applicant contended that the present applicant is a cousin brother (Mausera Bhai) of Haji Kamal coaccused and in view of the statement under Section 164 Cr. P.C. his entire prosecution is totally malicious.

In the revised list, learned counsel for the respondent no. 2 is not present nor there is any counter affidavit on record. Learned AGA could not dispute the genuineness of the statement of Hina Khan and the report of Additional Chief Judicial Magistrate, Court No. 3, Rampur dated 16.04.2010.

Looking to the entire facts and circumstances of the case specifically the fact that Hina Khan is major and she has expressed her desire to live with her husband, no useful purpose will be served in allowing the above prosecution to go on as it will be only harassment of the parties and wastage of the time of the Court. Hina Khan is the victim, who is alleged to have been abducted. Hina Khan is major and she never made any statement that she was ever abducted or was being detained by anybody including the applicant against her free will and volition. There is scanty chance of prosecution to succeed on the above facts.

In such a view, I allow this Criminal Misc. Application and quash prosecution of Case No. 6592 of 2005, State Vs. Haji Kamal and another relating to Crime No. 487 of 2005, under Section 366 I.P.C., Police StationCivil Lines, DistrictRampur pending before the Chief Judicial Magistrate, Rampur.

Copy of this order is directed to be presented before the concerned court for its intimation.

This Criminal Misc. Application is allowed.