Kamil Khan Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:43254

Court No. - 70

Case :- APPLICATION U/S 482 No. - 41053 of 2024

Applicant :- Kamil Khan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Preetam Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Preetam Yadav, the learned counsel for applicant and the learned A.G.A. for State-opposite party no.1.

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Perused the record.

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Applicant Kamil Khan who is a charge-sheeted accused and facing trial before Court below has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and set aside the order dated 04.10.2024 passed by Additional Sessions Judge/Additional Special Judge (POCSO Act), Court No.3, Firozabad in Sessions Trial No. 13 of 2019 (State Vs. Kamil Khan) arising out of Case Crime No. 0361 of 2018 Under Sections 323, 504, 506, 406, 376 I.P.C., Police Station-Rasulpur, DistrictFirozabad.

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It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of Sessions Trial No. 13 of 2019 (State Vs. Kamil Khan) arising out of Case Crime No. 0361 of 2018 Under Sections 323, 504, 506, 406, 376 I.P.C., Police Station-Rasulpur, District-Firozabad pending before the Court of Additional Sessions Court/Additional POCSO Court No.3, Firozabad during pendency of the present application before this Hon'ble Court and/or may pass such other and further order, which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case."

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Record shows that in respect of an incident which is alleged to have occurred on 02.08.2016 a delayed F.I.R. dated 13.05.2018 was lodged by the prosecutrix-first informant opposite party No.2Aparna Srivastava and was registered as case crime No. 0361 of 2018 under Sections 323, 504, 506, 406, 376 I.P.C. Police StationRasulpur, District-Firozabad. In the aforesaid F.I.R. nine persons namely, Kamil Khan, Abdul Gaffar, Amir Khan, Smt. Shumbul, Gudiya, Rukhsana, Farhan, Nauman and Dr. Zafar Alam have been nominated as named accused.

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After aforementioned F.I.R. was lodged, Investigating Officer proceeded with the statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of prosecutirx, first informant opposite party No.2 under Section 161 Cr.P.C. Same is on record at Page No. 46 of the paperbook. The prosecutrix in her aforesaid statement has fully supported the F.I.R.

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Subsequent to above, the statement of prosecutrix was recorded before the concerned Magistrate under Section 164 Cr.P.C. The prosecutrix in her aforesaid statement has rejoined her previous statement recorded under Section 161 Cr.P.C. and has reiterated the same. The said statement is also on record at page 49 of the paper-book.

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On the basis of above and other material collected by the Investigating Officer during course of investigation he came to the conclusion that complicity of five of the named accused is prima facie established in the crime in question. The Investigating Officer charge-sheeted the named accused in the following manner:

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(i) Kamil - charge-sheeted under Sections 323, 504, 506, 406 and

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376 I.P.C.

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(ii) Amit - charge-sheeted under Sections 323, 504, 506 and 406 I.P.C.

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(iii) Gudia - charge-sheeted under Sections 323, 504, 506 and 406 I.P.C.

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(iv) Abdul - charge-sheeted under Sections 323, 504, 506 and 406 I.P.C.

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(v) Rukhsana - charge-sheeted under Sections 323, 504, 506 and 406 I.P.C.

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Four of the named accused namely, Shambul, Nauman, Farhana and Dr. Jafar Alam were exculpated by the Investigating Officer.

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After submission of aforementioned charge-sheet/police report in terms of Section 173(2) Cr.P.C. by the Investigating Officer, the Jurisdictional Magistrate took cognizance upon same in exercise of jurisdiction under Section 191-B Cr.P.C. He accordingly summoned the charge-sheeted accused.

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Since offence complained of is exclusively triable by the Court of Sessions, therefore, the Jurisdictional Magistrate in lieu of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 13 of 2019 (State Vs. Kamil Khan) under Section 323, 504, 506, 406, 376 I.P.C. Police StationRasulpur, District Firozabad came to be registered and is now pending in the Court of Additional Sessions Judge/Additional Special Judge (POCSO Act), Court No.3, Firozabad.

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During pendency of aforementioned Sessions Trial, applicant who is one of the charge-sheeted accused filed a discharge application in terms of Section 227 Cr.P.C. before Court below seeking discharge in aforementioned Sessions Trial. However, the

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copy of the discharge application has not been brought on record. The discharge application filed by applicant was opposed by the prosecution. Ultimately, Court below upon evaluation and examination of the ground raised in support of the discharge application filed by applicant in the light of material on record came to the conclusion that no good ground is made out to discharge the accused-applicant. Accordingly, by means of the order impugned dated 04.10.2024, Court below rejected the discharge application filed by the applicant.

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Thus, feeling aggrieved by the above order dated 04.10.2024, accused/applicant has now approached this Court by means of present application under Section 482 Cr.P.C.

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Learned counsel for applicant submits that the order impugned dated 04.10.2024 passed by Court below is not only illegal but also in excess of jurisdiction. Consequently, the same is liable to be setaside by this Court. In furtherance of aforesaid submission, the learned counsel for applicant with reference to the record contends that the parties have solemnized marriage. The said fact is sought to be strengthened in the light of the document occurring at pages 53 and 54 of the paper-book which is an order dated 20.03.2018 passed by this Court in Writ C No. 10199 of 2018 Smt. Aparna Srivastava and Another Vs. State of U.P. And 3 Others. With the aid of above order, the learned counsel for applicant submits that no offence under Section 376 I.P.C. can be said to have been committed by applicant. In view of above, the order impugned in present application is liable to be quashed by this Court.

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Per contra, learned A.G.A. representing the State-opposite party No.1 has vehemently opposed the present application. Learned A.G.A. submits that it is an admitted fact between the

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parties that while applicant is a Muslim the prosecutrix is a Hindu by religion. There is no such document on record to show that the prosecutrix has converted to Islam. In view of above, no marriage could have been solemnized between the parties. Reference has then been made to the order impugned passed by Court below and on basis thereof it is urged by learned A.G.A. that Court below has returned a clear and categorical finding that alleged Nikahnama has not been signed by the applicant. Furthermore, the direction contained in the order dated 20.03.2018 referred to above has also not been complied with, inasmuch as, applicant has failed to deposit a sum of Rs. 1 lakh as directed by aforesaid order. Learned A.G.A. has then submitted that applicant was already married but this fact was clearly concealed by the applicant with the prosecutrix, therefore, the alleged marriage between the parties is based upon misrepresentation. Irrespective of above, since, there is nothing on record to show that the prosecutrix has converted to Islam, therefore, prima facie the marriage of the parties is void. As a void act does not create any right in favour of a party, no interference is warranted by this Court in present application.

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Learned A.G.A. has then referred to the three Judges Bench judgment of the Supreme Court in Tarun Jit Tejpal Vs. State of Goa, (2020) 14 SCC 556 wherein the Apex Court has laid down the parameters regarding the discharge/framing of charge against the accused. In the aforesaid judgment, the Court has observed that in case a prima facie case is made out, no illegality can be attached to the continuation of the criminal proceeding against an accused or the framing of charge order passed by Court below. The Apex Court has gone a step further and observed that even in a case of grave suspicion which is different from mere suspicion, the prosecution of an accused can be sustained. When the facts of the

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present case are examined in the light of the aforementioned parameters, it cannot be conclusively concluded that either no offence is made out against the applicant as per the papers accompanying the police report or there is no evidence against the applicant as the papers accompanying the police report. Admittedly the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. has fully supported the F.I.R. The veracity of the said statements cannot be examined at this intermediate stage.

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On the above conspectus, learned A.G.A. thus submits that since prima facie the prosecution of the applicant can be sustained as per the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and the credibility or reliability of aforesaid statements cannot be examined at the pre-trial stage nor there is any such impeccable evidence on record to establish malicious prosecution of applicant, hence, no illegality can be said to have been committed by Court below in passing the order impugned. As such no interference is warranted by this Court in present application.

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When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application.

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As a result, the present application fails and is liable to be

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dismissed.

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It is, accordingly, dismissed .

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Order Date :- 24.3.2025 Karan

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Digitally signed by :- KARAN KUMAR RAO High Court of Judicature at Allahabad

Kamil Khan v. State of U.P. and Another

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