Zaif Qadir And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 22689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:168789
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 22161 of 2023
 

 
Applicant :- Zaif Qadir And Another
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Gorakh Nath Mourya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants, learned AGA and perused the record.

2. The instant application under Section 482 CrPC has been filed for the following relief:

"It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present 482 application and to quash the entire proceeding of CNR no. 01 (State Vs. Saiful and others) pending in the Court of Juvenile Justice Board Moradabad arising out of case crime no. 314 of 2022, under section 377 I.P.C. and Section 5L/6 of POCSO Act and section 66E I.T. Act, Police Station - Mainather, District Moradabad as well as impugned cognizance/summoning order dated 8.5.2023 and Bailable warrant issued on 26.5.2023 passed by learned Juvenile Justice Board Moradabad, whereby the learned court below cognizance is taken against the accused namely Simran, Saiful, Saiwan, Ajmat, Bilal, Zaif Qadir and Asmil for offence u/s 377 I.P.C. and Section 5L/6 of POCSO Act and section 66E I.T. Act issued summon against Zaif Qadir and Asmil urgently to make appear board put up on 25.5.2023 for appearance of all accused, the court below passed said order in application u/s 204 Cr.P.C. and disposed off this application and further be pleased to stay the further proceedings of CNR no. 01 (State Vs. Saiful and others) pending in the Court of Juvenile Justice Board Moradabad arising out of case crime no. 314 of 2022, under section 377 I.P.C. and Section 5L/6 of POCSO Act and section 66E I.T. Act, Police Station - Mainather, District Moradabad as well as impugned cognizance/summoning order dated 8.5.2023 and Bailable warrant issued on 26.5.2023 passed by learned Juvenile Justice Board Moradabad, whereby the learned court below cognizance is taken against the accused namely Simran, Saiful, Saiwan, Ajmat, Bilal, Zaif Qadir and Asmil for offence u/s 377 I.P.C. and Section 5L/6 of POCSO Act and section 66E I.T. Act issued summon against Zaif Qadir and Asmil urgently to make appear board put up on 25.5.2023 for appearance of all accused, the court below passed said order in application u/s 204 Cr.P.C. and disposed off this application, during the pending decision of present Criminal Misc. application under section 482 of Cr.P.C., so that justice may be done."

3. Facts culled out form the averment made in the instant application are that opposite party No. 2 (first informant) has lodged an FIR, being Case Crime No. 314 of 2022, levelling allegation against several accused for subjecting the minor son of the first informant to sodomy. After due investigation, the Investigating Officer has submitted charge sheet against some of the accused, however, three accused namely Zaif Qadir (applicant No. 1), Asmil (applicant No. 2) and Sharique were not arraigned in the charge sheet. Having been aggrieved, the first informant moved an application under Section 204 CrPC to summon the aforesaid remaining accused for the commission of cognizable offence with allegation that they have also sodomized his son. Learned Juvenile Justice Board has allowed the aforesaid application, vide order dated 8.5.2023, and summoned Zaif Qadir (applicant No. 1), Asmil (applicant No. 2) for facing trial along with other accused. Having been aggrieved, the applicants namely Zaif Qadir (applicant No. 1), Asmil (applicant No. 2) have preferred the instant application assailing the order of Juvenile Justice Board dated 8.5.2023.

4. It is submitted by the the learned counsel for the applicants that after due investigation, the Investigating Officer has rightly not arraigned the present applicants in the charge sheet inasmuch as no incriminating material has been found against them qua cognizable offence. It is further submitted that except the statement made by the victim, there is no other evidence on record to prove the involvement of the present applicants in the commission of crime. It is further submitted that the first informant is neither an eye witness of the incident nor he has seen the video on which basis the instant criminal proceeding has been initiated. Furthermore, it is submitted that the accusation against the present applicants rests solely on hearsay. It is further submitted that the present applicants are the students and on the date of the said incident, they were studying in their school. It is further submitted that at later stage the first informant has moved an application denying the incident in question wherein the present applicants have been summoned.

5. Per contra, learned AGA has opposed the submissions as raised by the learned counsel for the applicants and contended that from the face of record coupled with the statement of the victim recorded under Section 164 CrPC, the complicity of present applicants in the commission of crime cannot be ruled out. It is further contended that the statement of the victim recorded under Section 164 CrPC before the learned Magistrate is more than sufficient to make a prima facie case to summon the applicants for the commission of cognizable offence. It is further contended that the defence of the present applicants as is being tried to be put up before this Court in proceeding under Section 482 CrPC is not required to be examined by this Court. Trial court is the court competent to examine all the defence adduced by the present applicants. The innocence of the present applicants cannot be inferred at this stage. No legal ground is made out so as to warrant the indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC, therefore, instant application may be dismissed being devoid of merits and misconceived.

6. Having considered the rival submissions advanced by the learned counsel for the applicants as well as learned AGA and perusal of the record, it is manifested that the names of the present applicants were also inculpated along with other accused by the father of the victim in the FIR lodged on his behalf. In the statement recorded under Section 164 CrPC, the victim has made categorical statement with respect to the presence of the present applicants on the date and place of the incident. The Investigating Officer while submitting the charge sheet has miserably failed to consider the statement of the victim recorded under Section 164 CrPC and submitted charge sheet without arraigning the present applicants. The Juvenile Justice Board has rightly entertained the application under Section 204 CrPC and issued summons against the present applicants considering the gravity of the statement made by the victim under Section 164 CrPC. The disputed defence of the applicants herein as is being tried to be set up by the learned counsel for the applicants, is not liable to be examined at this stage inasmuch as High Court in exercise of the inherent jurisdiction is not conducing the mini trial qua commission of the cognizable offence, whereas same is the subject matter of full-fledged trial which has to be conducted by the trial court after appraisal of evidence on record to be adduced by the parties. For the purposes of issuing the summons making out a prima facie case on the face of record is more than sufficient and the learned Juvenile Justice Board is not required to examine the defence of the accused.

7. In this conspectus, as above, I do not find any justifiable ground to interfere in the order impugned passed by the Juvenile Justice Board, in exercise of inherent jurisdiction under Section 482 CrPC. Neither there is any case of the misuse of the process of Court nor any circumstance has been met out wherein any order is required to be passed to secure the ends of justice. The present applicants are still at liberty to defend their case before the court concerned.

8. Before parting, learned counsel for the applicants submits that the bail application if filed by the present applicants may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorizing the offences.

9. Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicant appears/surrenders before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible.

10. With the aforesaid observation, this application is disposed of.

Order Date :- 22.8.2023

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