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Allahabad High Court · body

2013 DIGILAW 2921 (ALL)

Swadikin v. State of U. P. & Others

2013-12-02

VIJAY PRAKASH PATHAK

body2013
Vijay Prakash Pathak,J.:- Heard learned counsel for the revisionist as well as learned AGA for the State and perused the record. 2. The present revision has been filed with the prayer to set aside the impugned order dated 28.09.2013 passed by the learned Additional Chief Judicial Magistrate, Court No.2, Muzaffar Nagar whereby the application u/s 156(3) Cr.P.C. moved by the revisionist was dismissed. 3. The brief facts of the case are that the revisionist has moved an application u/s 156(3) Cr.P.C. before the learned Magistrate concerned for issuing directions to the Police of P.S. concerned to register an FIR and to investigate the case. In the said application the allegations were made that the opposite parties no.2 to 6 and one unknown person forcibly took her in a car and forcibly committed rape upon her. After considering the said application, the learned Magistrate passed the order impugned dated 28.09.2013 dismissing the said application. 4. Learned counsel for the revisionist has contended that as the matter was with regard to sexual harassment by committing gang rape upon the revisionist by opposite parties no.2 to 6 and other unknown person, which was to be considered with extraordinary sensitivity as it required investigation by the police and the medical of the victim was also required to be got conducted, but the learned Magistrate has not considered the matter in its proper perspective and has simply mentioned that there is litigation between the parties and the revisionist has filed the said application just to pressurize the opposite parties no.2 to 6 and no cognizable offence is made out against them. It is also contended that the learned Magistrate did not consider the allegations made in the application and illegally dismissed the application moved by the revisionist u/s 156(3) Cr.P.C. 5. I have considered the said arguments and perused the impugned order passed by the learned Magistrate. 6. The learned Magistrate while passing the order impugned dated 28.09.2013 dismissing the application moved by the revisionist u/s 156(3) Cr.P.C. has simply observed that there is litigation between the parties and the revisionist has filed the said application just to pressurize the opposite parties no.2 to 6 and no cognizable offence is made out against them. 6. The learned Magistrate while passing the order impugned dated 28.09.2013 dismissing the application moved by the revisionist u/s 156(3) Cr.P.C. has simply observed that there is litigation between the parties and the revisionist has filed the said application just to pressurize the opposite parties no.2 to 6 and no cognizable offence is made out against them. It appears that the learned Magistrate did not consider the matter seriously as it was a case of committing gang rape upon a lady by the opposite parties no.2 to 6 and one unknown person and in the matter of rape, the medical examination of the lady was also required, hence dismissing the application in the circumstances of the present case does not appear to be proper. This Court in the case of Om Prakash Sharma vs. State of U.P. and another reported in [ 2013 (2) JIC 293 (All)] has observed that the Magistrate should have applied his mind to the facts of the case as the said case was related about large scale fraud committed by the accused persons after cheating large number of students by giving them admission in their non-recognized institution. This Court in case of Ram Kishore Vs. State of U.P. and others reported in [2013(82) ACC 759] has observed that this Court has come across several cases where the offence committed against the women like rape, molestation, eve teasing and sexual harassment including other offences like certain financial scams etc. which are brought in the knowledge of the police officials, are not being attended by them properly. 7. In the present case there is allegation of committing gang rape upon the victim/revisionist by the opposite parties no.2 to 6 and one unknown person, hence in such circumstances, the investigation by the police was required, but the learned Magistrate has dismissed the application u/s 156(3) Cr.P.C. moved by the revisionist, which was not justified in the facts and circumstances of the present case and also does not appear to be in accordance with law. 8. In view of the aforesaid consideration, the order impugned passed by the learned Magistrate cannot be sustainable in the eyes of law. Accordingly, this revision is allowed and the matter is sent back to the learned Magistrate to decide the application u/s 156(3) Cr.P.C. of the revisionist afresh in accordance with law and in the light of observation made above. ___________