SHAMIM AHMED,J. - (1.) This application under Section 482 CrPC has been filed by the applicant for quashing the order dated 3.6.2020 passed by Special Judge POCSO Act/Additional Sessions Judge, Etah in Bail Application No.545 of 2020 (CNR No. UPET01-002463-2020) Chhotu vs. State of U.P., in relation to Case Crime No.26 of 2020, under Sections 363, 366, 342, 328, 376, 506 IPC and Section 4 POCSO Act, Police Station Nidhauli Kalan District Etah. Further, prayer has been made to release the accused applicant on default bail in Case Crime No.26 of 2020, under Sections 363, 366, 342, 328, 376, 506 IPC and Section 4 POCSO Act, Police Station Nidhauli Kalan District Etah exercising power under Section 167(2) CrPC so that justice be done.
(2.) Heard Sri Amit Daga, learned counsel for the applicant as well as learned AGA for the State and perused the record.
(3.) The facts of the case as argued by the learned counsel for the applicant are as under: (i) In regard to an incident which is said to have taken place on 8.12.2019 at some unknown time one First Information Report was registered at Police Station Nidhauli Kalan, District Etah on 29.1.2020 at about 16.00 hrs under the orders/direction of SSP, Etah passed on the application of Km. Preeti with the allegations that the informant is minor girl aged about 16 years and she is the student of Intermediate class. It is further alleged that on 8.12.2019 the informant (prosecutrix) had gone to her relative's home located in Mohalla Kila, Nidhauli Kalan, District Etah where resident of her village namely Chhotu (applicant) and Shyamveer reached and on call of Chhotu she came out from home and on the pretext of accident of her brother, aforesaid persons took her into Max vehicle and on reaching Sikandrabad, Shyamveer left their company and therefore Chhotu (applicant) took her to Delhi at some unknown place and committed rape with her till 14.12.2019 after administering some drugs to her. It is further alleged that somehow the informant (prosecutrix) informed her family members about the incident and despite various efforts the police of concerned police station neither reported the incident nor sent the informant (prosecutrix) for medical examination. On the basis of the aforesaid FIR, one criminal case as Case Crime No. 26 of 2020 for the offence punishable under Sections 363, 366, 342, 328, 376, 506 IPC and Section 4 POCSO Act was registered against the applicant and co-accused Shyamveer at Police Station Nidhauli Kalan District Etah. (ii) After registration of the aforesaid FIR, the police started investigation. During the course of the investigation, the investigating officer recorded the statement of the informant (prosecutrix) under Section 161 CrPC in which she has allegedly reiterated the allegations of the FIR in refined manner and further alleged that she was forcibly taken to Delhi and subjected to rape till 14.12.2019 and she came out from the clutches of the accused then she made efforts to lodge the FIR. It is further alleged that she is minor and her date of birth is 15.10.2004. (iii) It is alleged by the prosecution that prior to recording the aforesaid statement, the informant (prosecutrix) was put up for medical examination at District Women Hospital, Etah on 30.1.2020 and on the same day she was allegedly medically examined at aforesaid hospital. As per the medical examination report of the informant (prosecutrix), in the opinion of the doctor, no injury was seen at any body part including the genital part of the informant (prosecutrix). (iv) After showing the aforesaid statement of the informant (prosecutrix), the Investigating Officer has shown arrest of the accused applicant in the instant criminal case on 2.2.2020 and on the same day he was put up before the court of learned Magistrate for judicial custody remand. (v) During the course of the investigation, the Investigating Officer put up the informant (prosecutrix) before the court of lernaed Magistrate for the purposes of recording her statement under Section 164 CrPC. (vi) Thereafter the Investigating Officer recorded the statements of some independent witnesses namely Sukhbeer Singh, Mohar Singh, Brijesh Sharma and Durveen Singh under Section 161 CrPC, in which they have allegedly stated that co-accused Shyamveer, who is named in the FIR, happens to be the uncle of accused applicant Chhotu and since the applicant and Km. Preeti were having love affairs, thus the informant (prosecutrix) was enticed away by applicant Chhotu on 8.12.2019. (vii) After recording the statements of the aforesaid independent witnesses the Investigating officer came to the conclusion that co-accused Shyamveer has nothing to do with the allegations levelled in the FIR and he has been falsely roped in the instant criminal case. With the said observation/conclusion, the Investigating Officer gave clean chit to co-accused Shyamveer from all the charges and further investigated the crime in question only against the accused applicant. (viii) After conclusion of the investigation, the Investigating Officer prepared the charge sheet/challan with the observation that the applicant had committed an offence and liable to be prosecuted for the offence punishable under Sections 363, 366, 342, 376, 506 IPC and Section 4 POCSO Act and submitted the same before the court of learned Special Judge (POCSO Act) on 1.6.2020, much after expiry of 90 days. On the same day learned trial court (Special Judge POCSO Act/Additional Sessions Judge, Etah) was pleased to take cognizance on the charge sheet/challan so submitted against the accused applicant. (ix) Learned counsel for the applicant further submits that on careful and exhaustive perusal of the charge sheet/challan, it reveals that the same was prepared by the Investigating Officer on 2.3.2020 and the same has been marked as submitted on 15.5.2020 whereupon cognizance was taken by the court below on 1.6.2020. (x) Since the accused applicant was challaned and taken into custody in the instant criminal case on 2.2.2020 and despite expiry of 90 days no charge sheet/challan was submitted against him before the learned Special Judge, POCSO Act, Etah, thus the applicant sought default bail under Section 167(2) CrPC by moving an application dated 25.5.2020. Accused applicant is also ready to furnish adequate sureties and personal bond to the satisfaction of the court concerned. (xi) It is categorically submitted by the learned counsel for the applicant that till 25.5.2020 the date on which the applicant moved an application under Section 167(2) CrPC for grant of default bail, no charge sheet/challan was available before the court below and the same was filed/submitted by the concerned investigating agency before the court below after moving the said application only on 1.6.2020 and whereupon cognizance was taken by the court below on 1.6.2020. ;