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2010 DIGILAW 685 (UTT)

Shamim v. State of Uttarakhand

2010-09-16

SUDHANSHU DHULIA

body2010
Judgment Hon’ble Sudhanshu Dhulia, J. Heard Mr. S.P.S. Panwar, Senior Advocate assisted by Mr. Sachin Panwar, learned counsel for the applicants, Mr. Nandan Arya, learned Assistant Government Advocate for the State as well as Mr. B.D. Pande, learned counsel for respondent no. 2. 2. This Criminal Misc. Application under Section 482 Cr.P.C. has been filed by the applicants challenging the order dated 22.6.2004 passed by the Judicial Magistrate, Roorkee, District Haridwar in Criminal Case No. 772 of 2004 State Vs. Shamim and another under Section 376 IPC. 3. The applicants before this Court are accused in a criminal case under Section 376 IPC. Initially the police had filed a Final Report against the accused, however, the Final Report was not accepted by the Court and on the protest petition of the prosecutrix, cognizance was taken by the Court and warrants were issued against the accused persons. The case has a long history as the matter pertains to an incident dated 29.7.1988. On the warrants being issued, a revision was filed by the accused before the High Court of Judicature at Allahabad where certain direction in favour of the revisionists were passed which protected them so far as their arrest was concerned. However, in the present case what has been challenged is an order dated 22.6.2004 of the learned Judicial Magistrate by which the matter has been committed to sessions by the learned Magistrate. The accused persons have pleaded before the Magistrate that the prosecutrix has filed an affidavit that she has given a wrong statement, etc. but this had no effect before the Magistrate. In sum and substance, it is this order dated 22.6.2004 which has been challenged by the applicants. 4. I have examined the impugned order dated 22.6.2004. I find no anomaly in the same. The learned Magistrate under the settled position of law had no alternative but to commit the matter to the sessions as there was allegation of rape against the accused persons in the FIR and the matter was triable by the Sessions Court. The mere fact that an affidavit has been filed by the prosecutrix would not have any affect. Criminal machinery cannot be set into motion and then withdrawn by mere filing of affidavits. It is not an electric switch which can be switched on and off, at will. The mere fact that an affidavit has been filed by the prosecutrix would not have any affect. Criminal machinery cannot be set into motion and then withdrawn by mere filing of affidavits. It is not an electric switch which can be switched on and off, at will. There are considerations of law and procedure which have to be followed by the court and learned Magistrate had no other alternative but to pass an order which has presently been passed. It is true that the Apex Court in recent times has taken a view that criminal cases, which during their pendency for a host of reasons, have been reduced to nothing but an abuse of process of law, and particularly where there are not even remote chances of conviction, on the strength of evidence of the prosecution the High Court in its inherent powers under Section 482 Cr.P.C. may quash criminal proceedings. Reference is made of the judgement in State of Haryana Vs. Bhajan Lal 1992 SCC (Cri) 426, B.S. Joshi Vs. State of Haryana (2003) 4 SCC 675 and Nikhil Merchant Vs. C.B.I and another 2008 (4) JCC 2311.. 5. However, the facts of the present case do not justify the invoking of inherent and extraordinary powers of this Court under Section 482 Cr.P.C. This Court finds no anomaly in the impugned order passed by the court below. Present C-482 application is devoid of merit and is liable to be dismissed and is hereby dismissed. 6. No order as to costs. 7. Interim order, if any, is also vacated. 8. At this stage, learned Senior Counsel for the applicants Mr. S.P.S. Panwar has stated that the matter is very old and the applicants have not been arrested so far, as they were protected by the orders of the High Court of Judicature at Allahabad and they have prayed that in case they surrender before the court below, their arrest may be stayed. This request of the learned Senior Counsel is also not liable to be accepted and is rejected. This request of the learned Senior Counsel is also not liable to be accepted and is rejected. However, under the facts and circumstances of the case, it is directed that in case the applicants surrender before the Sessions Court, looking at the facts and circumstances of the case, particularly, the fact that the matter is very old and the applicants had not been arrested so far on the strength of the order of the Court, their bail applications will be considered and disposed of the same day, when they are filed, by the Sessions Judge in view of the law laid down by the Full Bench of Allahabad High Court in Smt. Amarawati and another Vs. State of U.P. [2004 (57) ALR 390]. 10. Registry is directed to send a copy of this order to the court concerned for necessary compliance.