Dismissed

Zyaul Haque and Another v. State of U.P. and Another

Allahabad HC23 Feb 2023A482/43833/2019

Case brief

AI extract

What is this about?

Single Judge High Court rejected Section 482 application seeking quashing of charge-sheet involving IPC offences and POCSO Act due to enticement of a minor. Court found prima facie case and held allegations required adjudication by trial court.

What did the court decide?

Prayer for quashing charge-sheet dated 26.12.2016 and entire proceedings refused; application rejected.

Zyaul Haque and Another Vs State of U.P. and… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 45

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Case :- APPLICATION U/S 482 No. - 43833 of 2019

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Applicant :- Zyaul Haque And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adeel Ahmad Khan,Mainuddin Ahamad Counsel for Opposite Party :- G.A.

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with

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Case :- APPLICATION U/S 482 No. - 43421 of 2019

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Applicant :- Smt. Nehrunisha And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adeel Ahmad Khan,Mainuddin Ahamad,Sitaram Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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The case is taken up in the revised call.

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No one has appeared on behalf of the applicants to press this application, though, in the connected Application No. 43421 of 2019 has been signed by three counsels on behalf of the applicants. One of them Mr. Sitaram Yadav has sent illness slip today. However, Mr. Adeel Ahmad Khan and Mr. Mainuddin Ahamad, whose names are also shown as counsel for the applicants are not present even in the revised call.

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As there are more than one counsels and only one of them has sought adjournment on the ground of illness, therefore, the Court would be justified not to accept the request for adjournment. A Division Bench of this Court in Special Appeal No.887 of 1997, Ashwani Kumar Vs. D. Sen Gupta and others, reported in MANU/UP/2279/2008 in somewhat similar circumstances taking the same view rejected request for adjournment observing as under:-

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"Since names of number of counsels are printed in the cause list for the appellant and, therefore, we are not inclined to adjourn this matter only on the ground of illness of one out of five learned counsels for the appellant"

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In view of the aforesaid judgement passed by Division Bench of

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this Court, the Court is declining the request to adjourn the matter.

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Heard Mr. K.P. Pathak, learned A.G.A. for the State as well as perused the entire material available on record.

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The present 482 Cr.P.C. application has been filed to quash the charge-sheet dated 26.12.2016 as well as entire proceeding in S.S.T. No. 25 of 2017 (State Vs. Irshad and others) arising out of Case Crime No. 1667 of 2016, under sections 363, 366(A), 504, 506, 376, 368 IPC & Section 16/17 & 3/4 of POCSO Act, 2012, Police Station Kotwali Mau, District Mau pending in the court of Additional Session Judge, Room No. 1, Mau.

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Brief facts of the case is that an FIR has been lodged against as many as eight accused including the applicants with the allegations that the informant's daughter whose date of birth is 08.11.1999 student of graduation first year, was going to attend the college on 30.08.2016 at about 8:00 am, enticed away by Mohd. Irshad, who was assisted by his family members in enticing away the victim, therefore, the FIR has been lodged under section 363, 366(A), 504, 506 IPC. After the conclusion of the investigation, the Investigating Officer has submitted a charge sheet on 26.12.2016 against the applicants and another accused u/s 363, 366(A), 504, 506, 376, 368 IPC & Section 16/17 & 3/4 POCSO Act, 2012.

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From the records it is clear that stand has been taken by the applicants that they are innocent and have been falsely implicated in the present case. No specific allegations have been made against the applicants.

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Per contra, learned A.G.A. for the State submits that the material collected by the Investigating Officer shows the involvement of the applicants wherein a minor girl had enticed away with the help and assistance of the family members of the applicants, therefore, the offence under relevant sections are made out. He further submits that all the contentions made in the affidavit in support of present application relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned AGA has placed reliance upon the judgments of the Apex Court in the case of Dilbag Rai Vs. State of Haryana & Others reported in AIR 2019 (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in MANU/SC/1432/2019.

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I have considered the submissions made by learned AGA and have gone through the records of the present application.

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This Court finds that the contentions made in the affidavit in support of present application call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:-

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(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,

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(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,

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(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,

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(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122,

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(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682,

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(vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454,

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(vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45,

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(viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly

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(ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315.

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In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against

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the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

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The prayer for quashing the impugned charge-sheet dated 26.12.2016 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

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The present application has no merit and is, accordingly, rejected .

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Order Date :- 23.2.2023 Arti

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Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad

Zyaul Haque and Another v. State of U.P. and Another

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Zyaul Haque and Another v. State of U.P. and Another

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