Allahabad High Court
Shahid And 3 Others vs State Of U.P. And Another on 5 February, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:16374
Court No. - 71
Case :- APPLICATION U/S 482 No. - 37382 of 2024
Applicant :- Shahid And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jayant Srivastava,Yogesh Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Jayant Srivastava, the learned counsel for applicants and the learned A.G.A. for State.
2. Perused the record.
3. Applicants-Shahid And 3 Others, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the instant Criminal Misc. Application under Section 482 Cr.P.C. and quash the impugned order dated 25.06.2024 passed by learned Chief Judicial Magistrate Kaushambi in Case No. 2758 of 2021 (State Vs Aslam and others) arising out of Case Crime No. 141 of 2019, under Section 376D, 323, 506 I.P.C., Police Station- Manjhanpur, District-Kaushambi as well as entire proceeding of Case No. 2758 of 2021 (State Vs Asiam and others) arising out of Case Crime No. 141 of 2019, under Section 376D, 323, 506 I.P.C., Police Station-Manjhanpur, District- Kaushambi pending in the Court of Learned Chief Judicial Magistrate Kaushambi.
It is further prayed that during the pendency of this Criminal Misc. Application under Section 482 Cr.P.C. the further proceeding of Case No. 2758 of 2021 (State Vs Aslam and others) arising out of Case Crime No. 141 of 2019, under Section 376D, 323, 506 I.P.C., Police Station- Manjhanpur, District- Kaushambi as well as entire proceeding of Case No. 2758 of 2021 (State Vs Aslam and others) arising out of Case Crime No. 141 of 2019, under Section 376D, 323, 506 I.P.C., Police Station- Manjhanpur, District- Kaushambi pending in the Court of Learned Chief Judicial Magistrate Kaushambi may be stayed, or may pass any other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case otherwise applicants shall suffer irreparable loss and injury."
4. Record shows that in respect of an incident, which is alleged to have occurred on 04.01.2019, a delayed FIR dated 30.01.2019 was lodged by prosecutrix/first informant/opposite party-2-Smt. Rihana and was registered as 141 of 2019, under Section 376D, 323, 506 I.P.C., Police Station- Manjhanpur, District-Kaushambi. In the aforesaid FIR, five persons namely (1) Aslam (2) Noor Alam (3) Shahid (4) Siddique Qureshi and (5) Mohd, Azam Alias Haryale have been nominated as named accused.
5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation. Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. This was followed by the statements of the first informant/prosecutrix under Sections 161/164 Cr.P.C. On the basis of above and other material collected by him, during course of investigation, the Investigating Officer came to the conclusion that offence complained of is not been prima facie established. Accordingly, Investigating Officer opined to submit the final report. Resultantly, Investigating Officer submitted the final/police report dated 17.07.2019 in terms of Section 173 (2) Cr.P.C.
6. Feeling aggrieved by the aforementioned final report/police report dated 17.07.2019 first informant/prosecutrix filed a protest petition against the same. It is apposite to mention here that under the Code i.e. Cr.P.C. there is no provision which enables the first informant opposite party-2 to file a protest petition against the police report. However, the said right is now available to the first informant by reason of the judgment of Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537,
7. The jurisdictional magistrate proceeded to consider the protest petition filed by first informant/prosecutrix in the light of the material accompanying the police report. Having undertaken the aforesaid exercise the jurisdictional magistrate placed reliance upon the judgment of Supreme Court in Bhagwant Singh (Supra), and opined that either of the three options as noted in aforementioned judgment can be exercise by the jurisdictional magistrate while considering the protest petition. Being satisfied upon the material accompanying the police report, the jurisdictional magistrate came to the conclusion that prima facie offence complained of is made out. He therefore, took cognizance in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. by means of order dated 19.02.2021 and summoned the applicant.
8. Subsequently, applicant filed a discharge application in terms of Section 227 Cr.P.C. seeking their discharge in aforementioned Sessions Trial. Court below by means of impugned order dated 25.06.2024 has rejected the discharge application.
9. At the very outset, the learned A.G.A. submits that copies of statements of the prosecutrix as recorded under Sections 161/164 Cr.P.C. have not yet been brought on record. In the absence of above, the veracity of the order impugned cannot be examined. As such, present application is liable to be dismissed.
10. When confronted with above, the learned counsel for applicants could not over come the same.
11. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that the preliminary objection raised by the learned A.G.A. in opposition to this application is not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicants. In view of above, no good ground exists to entertain the present application.
12. As a result, the present application fails and is liable to be dismissed.
13. It is, accordingly, dismissed.
Order Date :- 5.2.2025
Imtiyaz
