C482/377/2009 of RIYASAT ALI AND ANR Vs STATE AND ANR on 29 December 2009

Facts

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL APPLICATION NO.377 OF 2009 (U/s 482 Of Cr.P.C.)

Riyasat Ali & another

…………Applicants

Versus

State of Uttarakhand & another

…………Respondents

Dated: December 29, 2009

Sri Tumul Nailwal, Adv. for the applicants Sri M.A. Khan, Brief Holder for the State Sri Gopal K. Verma, Advocate for the respondent no.2

HON. DHARAM VEER, J.

This application moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), has been preferred by the applicant for quashing the summoning order-dated 8.5.2009 passed by the Chief Judicial Magistrate, Rudrapur in Criminal Case No.429/2009, State Vs. Sahil & Others.

Heard learned counsel for the parties and perused the material on record.

In brief, the facts of the case are that the respondent no.2-Smt. Munni Devi lodged an FIR on 21.12.2008 at 4:40 PM at P.S. Gadarpur with the averments that her minor daughter Km. Usha was missing from the day of 29.11.2008. On being searched, she came to know that her daughter, being enticed, was kidnapped by Sahil, Nirale, Bittu, Ismail, Riyasat (applicant), Parvina (applicant) and Babu Teli. On 8.12.08 when the complainant enquired from Babu Teli, then Babu Teli and the applicants-accused Riyasat and Parveen informed her that her daughter was taken away by Sahil and his family members. The complainant was also threatened to face dire consequences in case she would disclose this incident to anyone. Thereafter, the complainant called a Panchayat in which Babu Teli and applicant Parveena and Nirale confessed their guilt and assured the complainant to bring her daughter back. With the same averments, the FIR was lodged. Thereafter the matter was investigated by the I.O. and on completion of investigation, charge sheet was filed. The police also recovered the girl Km. Usha and she was produced before the Judicial Magistrate, U.S. Nagar where her statement was recorded u/s 164 Cr.P.C. On perusal of the entire material on record, the learned CJM, U.S. Nagar summoned the applicants and other co-accused vide order dated 8.5.2009. Feeling aggrieved, the applicants have come up before this Court.

A counter affidavit has been filed of the respondent no.2 in which it has been stated that the prosecutrix very specifically and clearly stated about the involvement of the applicants of inducement and kidnapping. It is further stated that during the pendency of proceedings before the court below, father of the applicants again threatened the respondent no.2 for dire consequences in case she does not withdraw the prosecution case against them. It has further been stated that the victim was kidnapped by the applicants and others by inducing her and the victim was also subjected to rape by co-accused Sahil.

A perusal of the statement of the prosecutrix recorded u/s 164 Cr.P.C. transpires that she was enticed by the applicants Riyasat, Parveena and co-accused Shahid, Babu Khan and Ismail. She has specifically stated in her evidence that she was subjected to rape by Shahid @ Sahil against her wishes. When she tried to raise noise then she was threatened to face dire consequences. After that she was taken to Ghaziabad and from there she was taken to Haridwar.

A perusal of the above-said quoted statement of victim Km. Usha goes to clearly show that the offence punishable under Sections 363/366/376/506 IPC and one punishable u/s 3(10)(11)(12) of the Scheduled Castes & Scheduled Tribes, [Prevention of Atrocities] Act, is prima facie clearly made out against the applicants and the trial court has rightly summoned the applicants to face trial.

Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., the High Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.That is the function of the trial judge. If the allegations made in the FIR as well as in the statement of victim u/s 164 Cr.P.C. are taken at their face value and accepted in their entirety, I am of the view that the applicants have rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court.

For the reasons recorded above, there is no force in the application. The application C482 is devoid of merit and is hereby dismissed. Interim order dated 5.6.2009 stands vacated.

Rajeev Dang

(Dharam Veer, J.) December 29, 2009