Ravindra Singh - (1.) HEARD Sri S. P. S. Raghav, learned senior advocate assisted by Sri Anil Raghav, learned counsel for the applicant and learned A.G.A. for the State of U. P.
(2.) THIS application has been filed with a prayer to quash the proceeding of Criminal Case No. 2061 of 2008 under Sections 363, 366, 376 and 506, I.P.C., P. S. Modi Nagar, district Ghaziabad arising out of charge-sheet submitted in Case Crime No. 246 of 2007, P. S. Modi Nagar, district Ghaziabad pending in the Court of learned Additional Chief Judicial Magistrate-III, Ghaziabad. It is contended by learned counsel for the applicant that in the present case the F.I.R. has been lodged by O.P. No. 2 Sudhir at P. S. Modi Nagar on 25.4.2007 at 6.50 p.m. in respect of the incident which had occurred on 20.4.2007. The F.I.R. was lodged against co-accused Sher Singh, Sachin and Sudhir. The allegation against the co-accused persons was that the co-accused persons has taken away the girl Pooja who was minor. During investigation the statement of the first informant was also recorded, he followed the F.I.R. version by stating that Km. Pooja was enticed away by the co-accused persons, he did not disclose the name of the applicant. The statement of witness Tejveer, Raj Singh was also recorded, they did not make any allegation against the applicant even the name of the applicant was not disclosed by them. It is further contended that Km. Pooja filed a Complaint Case No. 3154 of 2007 (New No. 1247 of 2007) against O.P. Nos. 2 and 7 others under Sections 323, 504 and 506, I.P.C. on 1.6.2007 in which she had stated that she had performed the marriage with co-accused Sher Singh on 21.4.2007 in Arya Samaj Temple on 25.5.2007 at about 5.00 p.m. The O.P. No. 2 and others went to her house and they caused injuries on the person of Km. Pooja and her husband co-accused Sher Singh by using kicks and fists, they hurled the abuses and extended the threat to the life. In support of that complaint the statement of Km. Pooja was also recorded under Section 202, Cr. P.C. in which she stated that on 25.5.2008 the co-accused Tej Veer, Raj Singh and some unknown persons came at the house of co-accused Sher Singh, they did mar-peet with Km. Pooja and co-accused Sher Singh by using thappar and lathi blows. This incident was not witnessed by any person and Km. Pooja and Sher Singh was not medically examined. After extending the threat Tej Veer Singh and others fled away from the place of occurrence. Thereafter Km. Pooja gave an application to learned Additional Chief Judicial Magistrate, Ghaziabad with a prayer that she may be sent to Nari Niketan for security, on that application learned Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad directed the officer-in-charge of P. S. Modi Nagar to provide the proper security to Km. Pooja. Thereafter as alleged by the prosecution Km. Pooja was recovered and her statement was recorded under Section 164, Cr. P.C. on 18.6.2007 in which she made the allegation that she had gone to appear in the examination on 20.4.2007 but the co-accused Sachin, Sher Singh and Sudhir met her at the gate of the school she was told by them that her father was not feeling well and she was asked to go in their company thereafter the prosecutrix Km. Pooja was taken by them in a vehicle and they proceeded towards Delhi, when she objected she was threatened, she was kept in a room where Sachin, Sudhir and Sher Singh committed rape with her, she was detained in the room for one and half month. During that period the applicant and Sanjeev also came there they extended the threat and asked to do as the co-accused persons desired otherwise she alongwith her family members would be done to death but she stated that applicant and co-accused Sanjeev did not commit rape with her. This statement is afterthought and no allegation of committing the rape has been made against the applicant. The charge-sheet has been submitted without doing fair investigation on which the learned Magistrate concerned has taken the cognizance without perusing the same and without applying the legal mind. There is no cogent material against the applicant on which she may be prosecuted.
(3.) IN reply of the above contention, it is submitted by learned A.G.A. that in the present case the statement of Km. Pooja has been recorded, on the basis of her statement the specific allegation of extending the threat to the prosecutrix during the period of her illegal detention has been made. The allegation of rape is not against the applicant, it is made against the co-accused persons. On the basis of the material collected by the INvestigating Officer charge-sheet has been submitted against the applicant and co-accused Sudhir and Sanjeev under Sections 376 and 506, I.P.C. There is sufficient material to proceed further against the applicant. The learned Magistrate concerned has not committed any error in taking the cognizance and summoning the applicant to face the trial. The present case is devoid of merits, it may be dismissed. Considering the facts and circumstances of the case and submission made by learned counsel for the applicant and learned A.G.A. and from the perusal of the record it appears that the applicant is not named in the F.I.R. and the statement of the first informant Sudhir, witness Tej Veer Singh and Raj Singh, the statement of the prosecutrix has been recorded after recovery under Section 164, Cr. P.C. in which she had made the specific allegation that she was kidnapped by the co-accused Sachin, Sher Singh and Sudhir at the pretext that her father was ailing thereafter she was taken to Delhi where she was raped by the co-accused persons and she was illegally detained for about one and half month. During the period of detention the applicant and co-accused Sanjeev also went there and they extended the threat to her but she has clearly stated that she was not raped by the applicant. At this stage the statement of the prosecutrix recorded under Section 164, Cr. P.C. shall be considered for filing the charge-sheet and taking the cognizance. The Investigating Officer has not committed any error in submitting the charge-sheet against the applicant also, the learned Magistrate concerned has also not committed any error in taking the cognizance and summoning the applicant to face the trial. So far as the relevancy of complaint filed by the prosecutrix Km. Pooja against O.P. No. 2 and others is concerned she was under illegal detention and the co-accused persons is having no relevance because such complaints are filed even the statements under Section 200, Cr. P.C. are being recorded under coercion and threat for the purpose of creating the defence. The charge-sheet has been submitted after considering the statement of the prosecutrix recorded under Section 164, Cr. P.C. Km. Pooja is the star witness of this case. There is no illegality in submission of the charge-sheet and taking the cognizance and summoning the applicant to face the trial and there is no illegality in prosecution of the applicant, therefore, the prayer for quashing the proceeding of Criminal Case No. 2061 of 2008 under Sections 363, 366, 376 and 506, I.P.C., P. S. Modi Nagar, district Ghaziabad pending in the Court of learned Additional Chief Judicial Magistrate-III, Ghaziabad is refused.;