Allahabad High Court
Sarfaraz Ahmad vs State Of U.P. And 2 Others on 27 March, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 1832 of 2023 Petitioner :- Sarfaraz Ahmad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Zaid Arshad Counsel for Respondent :- G.A.,Hari Om Pandey Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Present petition has been filed for quashing the impugned first information report dated 2.7.2022 registered as Case Crime No. 411 of 2022, under Sections 342, 366, 376(2)N, 323, 504, 506 IPC, Police Station Dhoomanganj, District Allahabad.
We find that the present petition is continuing in the list of fresh cases as left over matters.
When the case was called out in the first reading no one was present to press this petition on behalf of the petitioner.
Sri Hari Om Pandey, learned counsel for the informant has produced a copy of the order dated 20.12.2022 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 12383 of 2022 (Sarafraj Ahmad @ Guddu vs. State of U.P.) and submitted that after discussing the entire material on record the anticipatory bail application filed by the petitioner was rejected. The aforesaid order dated 20.12.2022 is quoted as under:-
"Heard Sri Shashi Kant Shukla, learned counsel for the applicant, Sri Hari Om Pandey, learned counsel for the first informant and Sri B.B. Upadhyay, learned counsel for the State and perused the record.
The anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant Sarafraj Ahmad Alias Guddu, seeking anticipatory bail, in the event of arrest in Case Crime No. 0411 of 2022, under Sections 376(2)N, 342, 366, 323, 504, 506 IPC, Police Station Dhoomanganj, District Prayagraj.
The prosecution case as per the First Information Report lodged on 02.07.2022 by Smt. Shama Begum against the applicant is that her daughter aged about 15 years went missing from the house on 23.06.2022 at about 02:00 pm. On search she could not locate her. Later on, she came to know that her daughter was enticed away by the applicant on 23.06.2022 at about 02:00 pm from 60 Feet Road, Kareilly near Hum Safar Guest House on four wheeler. The first informant went to the house of the applicant which was locked. She enquired about her daughter from neighbours who gave her two phone numbers. She called on the said number on which the person told her that her daughter is with him and he would keep her and whatever she wants to do she may do. She then gave an application on 25.06.2022 at the police station in response of which the police was in search of her daughter. Constable Meraj called Smt. Farah Khan the nand of the first informant and told her that her daughter has been taken by his brother and she would return her. She then called police at Rajrooppur, Police Station Dhoomanganj and requested for getting her recovered. Later on, her daughter was brought to her house and she told her that she was forcibly taken by the applicant in a vehicle and was raped forcibly many times on that night and extended threats of her life.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that as per medical examination of the victim she was opined to be 18 years of age. It is argued that although the First Information Report was lodged under Sections 363, 376(2)(n), 504, 506 IPC and Section 5/6 POCSO Act but the police came to the conclusion that since the age has been opined to be 19 years and 18 days in the medical examination, Section 363 IPC and Section 5/6 POCSO Act is not made out and as such deleted the said sections in the present case and added the Sections 342, 366, 323 IPC and the investigation continued in Sections 342, 366, 376(2)(n), 323, 504, 506 IPC. Annexure 3 to the affidavit has been placed before the Court. It is argued that the wife of the applicant gave an application to the SSP, Prayagraj dated 30.06.2022 stating therein that one Aleena Praveen is a lady of bad character and her husband had given her room on rent which was got vacated due to which she was angry and then she used her niece who is the victim of the present case aged about 19 years and is trying to get her husband implicated in a false case of rape and application has been given at the police station regarding which the police is making an enquiry. Copy of the said application has been placed before the Court which is annexure 6 to the affidavit. It is argued that the implication of the applicant in the present case is false. It is further argued that the applicant has no criminal history as stated in para 17 of the affidavit.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for anticipatory bail and argued that as per certificate of the Chief Medical Officer, the victim has been opined to be of 15 years of age. The same has been noted in the case diary which is annexed at page 51 of the paper book. It is argued that victim in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has stated that the applicant had kidnapped her and then committing rape upon her repeated times. It is argued that even the first informant had given an application to the police earlier regarding the present incident but the same was not lodged and only enquired about it and then an application was given to the SSP concerned regarding disappearance of her daughter after which the present First Information Report was lodged. It is argued that the applicant is named in the First Information Report and there are allegations against him even in the statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The CMO concerned opined the age of the victim as 15 years.
After having heard the counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report. There are serious allegation against him. Victim supported the prosecution case in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. Previously on 25.06.2022 an application was given by the first informant regarding disappearance of her daughter which was not lodged by the police which only enquired about it. Subsequently, on 30.06.2022 an application was given by the wife of the applicant to the SSP concerned which has been lodged. Even in the medical examination, the doctor has stated that victim has stated of pain in genitals after the incident. The victim as per report of CMO concerned is stated to be about 15 years. I do not find it a fit case for interference.
Accordingly, the anticipatory bail application is rejected."
Sri G.P. Singh, learned A.G.A. pointed out that non bailable warrants were issued against the petitioner on 6.9.2022 and even proceedings under Section 82 Cr.P.C. was also initiated on 10.12.2022.
We further find that present petition has been filed after rejection of the anticipatory bail application.
We have gone through the abovequoted order carefully and in the abovequoted order several aspect of the matter, which may be required to be considered for the purpose of quashing of FIR, have been considered.
In such view of the matter, we are not persuaded to take different view of the matter.
Accordingly, present petition stands dismissed.
Sri Harim Om Pandey, learned counsel for the informant undertakes to inform learned counsel for the petitioner about this order in writing.
Order Date :- 27.3.2023 Lalit Shukla