Zubair vs State of U.P. and Another

Ravindra Singh, J.—This application 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 120B, I.P.C. P. S. Haldaur District Bijnor pending in the Court of IInd Additional Chief Judicial Magistrate, Bijnor in Criminal Case No. 159 of 2009.

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 incident 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 Bijnaur in which the applicant 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 Intizar 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. Tarannum Jahan was recovered from the railway station from the company of the co-accused Kari Intizar, she disclosed in her statement recorded u/s 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, thereafter she was taken to Bijnor, Delhi and Bangalore, 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, according 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 Sections 363, 366, 376 and 120B, I.P.C. on which the learned IIIrd A.C.J.M., Bijnor has taken cognizance on 20.1.2009 being aggrieved from the charge-sheet and the cognizance order dated 20.1.2009, the applicant filed this application for quashing the same.

Heard Sri Gaurav Kakkar, learned Counsel for the applicant and the learned A.G.A., for the State of U. P.

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 committing 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 apprehended from the railway station when she was ready to go to some other place but during the pendency of the investigation and prior to the recovery of the alleged prosecutrix, 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. alleging 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 u/s 200, Cr. P.C., in the Court of learned Magistrate concerned, considering the same, proceedings 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 applicant may also be stayed thereafter the same may also be quashed after hearing both the parties.

In reply to the above contention it is submitted by the learned A.G.A. that it is a case in which a minor girl was enticed away by the applicant and the co-accused Kari Intizar subsequently, the allegation of rape has been made against the co-accused Kari Intizar, the I.O. has collected ample material showing the commission of the offence and there is sufficient material for proceeding further against the applicant and other co-accused persons, the complaint filed by the prosecutrix Tarannum, in which the statement u/s 202, Cr. P.C., was recorded was having no relevance because at that time she was in the custody of the applicant and other co-accused persons, though the complaint was filed under coercion of the accused and under the fear the alleged statement was given u/s 200, Cr. P.C. The complaint filed by the prosecutrix and her statement recorded u/s 200, Cr. P.C., are not part of the investigation the same shall not be read for the purpose of quashing the charge-sheet, taking the cognizance and framing of the charge etc., such plea of the same may be taken by the applicant at the time of trial his defence, the interim order dated 1.8.2008 has been passed by another Bench of this Court in Criminal Misc. Application No. 17444 of 2008 in case of Kari Intizar and Ifthikhar only on the basis of the complaint filed by the prosecutrix and her statement recorded u/s 200, Cr. P.C., when she was in the custody of the co-accused person, the interim order dated 1.8.2008 is not having binding effect upon this Court for passing the same order in respect of the applicant, the present application is devoid of merits and deserves to be dismissed.

Considering the submissions made by the learned Counsel for the applicant, learned A.G.A. and from the perusal of the record, it appears that in the present case allegation of kidnapping of the girl has been made against applicant subsequently, she was recovered from the railway station, she had made allegation of committing rape against the co-accused Kari Intizar. According to the statement of the prosecutrix she was born in the year 1994 on the day of the alleged incident, she was aged about 14 years, she was minor, she herself has stated that the co-accused Kari Intizar is the father of six or seven children, in such a situation, the plea taken by the applicant that she wanted to marry with Kari Intizar is not tenable even the alleged complaint filled by the prosecutrix in the Court of learned Magistrate concerned against O.P. No. 2 and others and her statement u/s 200, Cr. P.C., are not having any relevance because neither the complaint nor her statement recorded u/s 200, Cr. P.C., is a part of the investigation and the same cannot be read for the purpose of quashing the charge-sheet, taking cognizance, discharging the accused or framing the charge but considering the same the interim order dated 1.8.2008 has been passed by another Bench of this Court in Criminal Misc. Application No. 17444 of 2009 in respect of the co-accused Kari Intizar and Iftikhar but in which the statement of the prosecutrix u/s 161, Cr. P.C., was not considered who has made specific allegation of kidnapping and committing rape, therefore, the interim order dated 1.8.2008 passed in respect of the co-accused Kari Intizar and Iftikhar has not been passed after considering all the facts and material collected by the I.O. during investigation, it is settled law that the interim orders are not having binding effect therefore, I do not think it proper that on this ground the proceeding against the applicant may be stayed, there is sufficient material against the applicant constituting the offence and showing the participation in the commission of the offence. There is no illegality in filing of the charge-sheet and taking cognizance by the learned Magistrate concerned, therefore, the prayer for quashing the charge-sheet in the above mentioned case is refused.

Accordingly this application is dismissed.