Allahabad High Court
Abhishek And Another vs State Of U.P. And 3 Others on 22 March, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- APPLICATION U/S 482 No. - 9458 of 2023
Applicant :- Abhishek And Another
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Kapil Tyagi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Syed Mumtaz Ali, Advocate holding brief of Mr. Kapil Tyagi, the learned counsel for applicants and the learned A.G.A. for State.
Challenge in this application under Section 482 Cr.P.C. is to the Cognizance Taking Order dated 7.2.2023 passed by Additional District and Sessions Judge/Special Judge, POCSO Act, Hapur, in Sessions Case No. 144 of 2023 (State Vs. Deepak and others), arising out of case crime no. 991 of 2022 under Sections 363, 354, 354D, 506, 376D I.P.C. and 5G/6 POCSO Act, Police Station Hapur Nagar, District Hapur, whereby court below has taken cognizance under Section 190(1)(b) Cr.P.C. on the basis the of Police report dated 12.1.2023 (charge-sheet) submitted under Section 173(2) Cr.P.C. and simultaneously summoned the present applicants who were exculpated by the Investigating Officer.
Referring to the judgment of Supreme Court in Devendra Nath Singh Vs State of Bihar and others, (2023) 1 SCC 48 (paragraphs 8 and 31), the learned counsel for applicants submits that order impugned in so far as it relates to the applicants is manifestly illegal. The statement of the prosecutrix as recorded under Section 164 Cr.P.C. has been taken ipso-facto to be as correct.
The court concerned while exercising its jurisdiction under Section 190(1)(b) Cr.P.C. has failed to weigh the material on record particularly the statement of the first informant/mother of the prosecutrix which is at page 49 of the paper book, the statement of the Principal of the institution which is at page 55 of the paper book as well as of the doctor, who medically examined the prosecutrix, which is at page 76 of the paper book.
In the submission of the learned counsel for applicants the aforesaid material accompanying the Police-report clearly belies the statement of the prosecutrix as recorded under Section 164 Cr.P.C.
On the above premise, it is then urged said that court below has not exercised its jurisdiction diligently but in a casual and cavalier manner. Resultantly, the order impugned in the present application cannot be sustained and is, therefore, liable to be quashed by this Court.
Per contra, the learned A.G.A. has opposed the present application. He submits that the Magistrate/Special Judge while exercising jurisdiction under Section 190(1)(b) Cr.P.C. is not bound by the opinion expressed by the Investigating Officer. It is open to the court concerned to look into the papers accompanying the Police-report and in case, it is found that the complicity of the non-charge sheeted accused is prima facie established in the crime in question, the Court can take cognizance and summon them also. To buttress their submission, reliance is placed upon the judgment of the Supreme Court in Vishnu Kumar Tiwari Vs. State of Uttar Pradesh (2019) 8 SCC 27. He therefore, submits that in view of above no jurisdictional error has been committed by court below. As such no indulgence be granted by this Court in favour of applicants
Learned A.G.A. then submits that it is by now well settled that the prosecution of an accused can be maintained for an offence of rape and sexual assault on the basis of the sole testimony of the prosecutrix and also in the absence of medical evidence provided the statements of the prosecutrix are of impeccable character. In this regard, reliance is placed upon the judgment of the Supreme Court in Phool Singh Vs. M.P., (2022) 2 SCC 74. He, therefore, submits that in view of above no error has been committed by court below in passing the order impugned in the present application.
When confronted, the learned counsel for applicants could not overcome the same. As a result, present application fails and is liable to be dismissed.
Accordingly, present application is dismissed.
However dismissal of this application shall not affect the right of the applicants to seek discharge before court below in terms of Section 227 Cr.P.C.
Order Date :- 22.3.2023
Aiman
