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2014 DIGILAW 887 (JHR)

Md. Mekail Mina v. State of Jharkhand

2014-08-20

H.C.MISHRA

body2014
Order Heard learned counsel for the petitioners and learned counsel for the State. Though the informant opposite party No.2 was also noticed in the matter, but it appears that she has not appeared in spite of service of notice upon her. 2. Petitioners are aggrieved by the order dated 25.7.2001 passed by the learned Addl. Sessions Judge-1, Godda, in Sessions Case No.94 of 1995, whereby the application filed by the petitioners under Section 227 of the Cr.P.C., for discharge, has been dismissed by the Court below stating that after investigation, the police has submitted the charge-sheet against the petitioners also, who are father and brother of the main accused, for the offence under Section 376 and 109 of the IPC, on the basis of the statement of one witness Gafruddin Ansari and the supervision note of the SDPO, which suggested that the father and the brother had assisted the main accused in cohabiting with the victim lady. 3. It appears from the record that the informant opposite party No.2 had lodged the FIR against the accused Sabir Mian, son of petitioner No.1 Mekail Mian. In the said FIR, there is direct allegation against the accused Sabir Mian to have committed rape upon the informant and upon raising the alarm by her, the witnesses came and apprehended the accused and he was produced before the police. There is nothing in the FIR to show that there was any relationship between the accused and the informant from before, rather this FIR was lodged for the solitary offence of alleged rape upon the informant. There is no allegation in the entire FIR against the petitioners and the petitioners were not made accused in the said FIR. 4. It appears from the impugned order that after investigation, the police submitted the charge sheet against the petitioners also, being the father and brother of the main accused, alleging that they also assisted him in cohabiting with the victim lady. The fact however remains that the FIR relates to solitary offence of rape upon the informant. 4. It appears from the impugned order that after investigation, the police submitted the charge sheet against the petitioners also, being the father and brother of the main accused, alleging that they also assisted him in cohabiting with the victim lady. The fact however remains that the FIR relates to solitary offence of rape upon the informant. The impugned order further shows that the same victim lady had also lodged a case earlier against the main accused Sabir Mian, wherein there was allegation against the main accused to have sexually exploited her on the false pretext of marrying her and a child was also born, but the father and brother of the accused had refused to accept the child to save their prestige, which fact was stated by one witness during investigation of the present case, and on the basis of the statement of the said witness and the supervision note of the SDPO, the father and brother of the accused Sabir Mian, have also been made accused in this case, alleging that they had cooperated with the main accused in committing the alleged offence. It also appears from the impugned order itself, that in the earlier case, the main accused Sabir Mian had already been discharged by the Court below. 5. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, the present case relates to the solitary offence of rape, in which there is allegation only against the co-accused and there is no allegation against these petitioners and these petitioners are not even named in the FIR. Learned counsel further submitted that it is apparent that no allegation has been made against the petitioners by the victim lady and only one witness has stated about the earlier occurrence alleging that the petitioners had refused to accept the child and only on that basis and the supervision note of the SDPO, the petitioners have been falsely implicated in this case. It is further submitted by the learned counsel for the petitioners that even if this allegation is accepted, no offence can be said to be made out against the petitioners under Section 376 of the IPC, or even Section 109 of the IPC. It is further submitted by the learned counsel for the petitioners that even if this allegation is accepted, no offence can be said to be made out against the petitioners under Section 376 of the IPC, or even Section 109 of the IPC. Learned counsel accordingly, submitted that it is fit case for discharge of the petitioners and the impugned order cannot be sustained in the eyes of law. 6. Learned counsel for the State on the other hand has opposed the prayer. 7. From perusal of the impugned order, it appears that in the facts of this case, even learned P.P. had supported the case of the petitioners in the Court below and had submitted that there was no material for framing the charge against them, but without accepting the submissions of the learned P.P. and learned counsel for the petitioners, the Court below had rejected the application filed by the petitioners under Section 227 of the Cr.P.C., only on the basis of the statement of the said witness and the supervision note of the SDPO. Even if the statement of that witness is taken into account, as discussed above, in my considered view, no offence can be said to be made out against the petitioners for the offence under Section 376 or 109 of the IPC, in as much as, this case relates to solitary offence of rape upon the informant, in which there is no allegation at all against these petitioners. Apparently, the witness had stated about the earlier case filed against the main accused by the informant, in which the said accused had already been discharged. In my considered view, the prosecution of the petitioners in the present case is absolutely unwarranted and uncalled for in the facts of this case and the impugned order cannot be sustained in the eyes of law. 8. Accordingly, the impugned order dated 25.7.2001 passed by the learned Additional Sessions Judge-1, Godda, in Sessions Case No.94 of 1995, as also the entire criminal proceeding against the petitioners only, in the said case, are hereby, quashed. 9. This application is, accordingly, allowed. Application allowed.