Allahabad High Court
Atiya vs State Of U.P. Through Secretary Home And ... on 15 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:46963 Court No. - 83 Case :- CRIMINAL REVISION No. - 899 of 2023 Revisionist :- Atiya Opposite Party :- State Of U.P. Through Secretary Home And Another Counsel for Revisionist :- Abdul Majid Counsel for Opposite Party :- G.A.,Raj Kumar Vaishya Hon'ble Rajeev Misra,J.
1. Heard Mr. Abdul Majid, the learned counsel for revisionist, the learned A.G.A. for State and Mr. R.K. Vishya, the learned counsel representing opposite party 2.
2. Perused the record.
3. Challenge in this criminal revision is to the order dated 11.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Bareilly in Criminal Misc. Case No. 118 (1458/2022)/2022 (Atiya Vs. State) arising out of Case Crime No. 148 of 2022, under Sections 452, 376, 506 IPC and Sections 5/6 POCSO Act, Police Station-Baherhi, District-Bareilly, whereby court below has accepted the police report submitted by the Investigating Officer in exercise of jurisdiction under Section 190(1)(b) Cr.P.C.
4. Learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore, the same is liable to be set aside by this Court.
5. Much emphasis was laid on the fact that the statement of the prosecutrix was recorded under Section 161 Cr.P.C. and 164 Cr.P.C., which clearly proves the criminality committed by her and therefore, in view of the aforesaid piece of evidence and coupled with the fact that offence alleged against the accused was regarding dislodging the modesty of the prosecutrix, therefore, the court below ought to have allowed the protest application and rejected the police report subnmitted in terms of Section 173(2) Cr.P.C. The decision taken to the contrary by court below, therefore, cannot be sustained and consequently the order impugned is liable to be set aside by this Court.
6. Per contra, the learned A.G.A. for State and the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that Apex Court in the case of Vishnu Kumar Tiwari Vs. State of U.P. and Another, (2019) 8 SCC 27 has now held that courts while exercising jurisdiction under Section 190(1)(b) Cr.P.C. can either (a) accept the report, (b) reject the report and directed for further investigation and (c) there is no evidence against the accused, the court may direct that the protest application shall be treated as a complaint. On the above premise, the learned A.G.A. and the learned counsel representing opposite party 2 submit that court below in the present case has proceeded to accept the police report and reject the protest application primarily on the grounds that firstly present criminal proceedings have been engineered as a counter blast to the criminal proceedings already initiated against the family members of the revisionist and secondly, the independent witnesses, who were examined by the Investigating Officer under Section 161 Cr.P.C. have not supported the FIR. On the above premise, the learned A.G.A. and the learned counsel representing opposite party 2 contend that no infirmity or illegality can be attached to the conclusion drawn by court below. As such, present criminal revision is liable to be dismissed.
7. When confronted with above, the learned counsel for revisionist could not overcome the same.
8. Having heard, the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. for State and the learned counsel representing opposite party 2 in opposition to the present criminal revision could not be dislodged by the learned counsel for revisionist. Moreover, this Court further finds that the protest petition has been rejected by court below primarily on the findings that the independent witnesses examined by the Investigating Officer during course of investigation have not supported the prosecution story as unfolded in the FIR and present criminal proceedings have been engineered as a counter blast to the criminal proceedings already initiated against the family members of the revisionist. In view of above, court below has neither committed a jurisdictional error in passing the order impugned nor the court below has exercised it's jurisdiction with material irregularity vitiating the order impugned therefore, this Court does not find any good ground to interfere in the present criminal revision.
9. As a result, the present criminal revision fails and is liable to be dismissed.
10. It is accordingly dismissed.
Order Date :- 15.3.2024 Vinay