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2015 DIGILAW 1897 (ALL)

Irshad @ Inshad @ Inshad v. State of U. P.

2015-07-14

NAHEED ARA MOONIS

body2015
JUDGMENT Naheed Ara Moonis,J. Heard learned counsel for the applicant, the learned AGA for the State and perused the record. 2. The instant application has been filed by the applicant with a prayer to quash the entire proceeding including charge sheet against the applicant in Case Crime No. 490 of 2014 (State vs. Irshad @ Inshad and another), under sections 363, 366, 368, 376 IPC and 3/4 P.O.C.S.O. Act, Police Station Pilhkuwa, District Hapur pending in the court of Additional Sessions Judge, Hapur. 3. It is submitted by learned counsel for the applicant that initially an FIR was registered against as many as eight persons including the applicant that minor daughter of complainant aged about 13 years was enticed away by the applicant. Submission of learned counsel for the applicant is that there is great inconsistency in the prosecution case and in the medical report prosecutrix was major at the time of incident and as per medical report she was 19 years and she has also performed marriage with the applicant. Out of her own will prima facie no offence is made out against the applicant. 4. Per contra, counsel for O.P. No.2 has submitted that applicant and other accused persons has enticed away the minor daughter of the applicant and according to her school certificate she was minor at the time of incident and the charge sheet has been submitted against the applicant and one Rashid and court below has taken cognizance. The allegations made in the FIR prima facie offence is made out against the applicant and the innocence of the applicant cannot be adjudged at the pre trial stage. Therefore, the applicant does not deserve any indulgence. 5. From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant. 6. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases: - (i) R. P. Kapoor Vs. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases: - (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866 , (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192. 7. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised: -(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. 8. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing the entire proceeding as well as charge sheet are refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The disputed question of fact shall be considered at the appropriate stage. However, the court below is directed to proceed with the case in accordance with law.