IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Crl. Misc. Application No. 276 of 2005
S/o Sri Toofail Ahmed
R/o Nanak Sagar Colony,
Jungle Jogi Ther, P.S. Nanak Matta,
District Udham Singh Nagar.
1. State of Uttaranchal
Through Secretary Home, Dehradun.
2. Kumari Sapna Chand
D/o Sri Jagat Chand
R/o Ukhari Sheri, P.O. Vichhul,
Patwari Kshetra Satgal,
P.S. Tehsil & District Pithoragarh.
3. Sub Divisional Officer
Mr. R.S. Sammal, Advocate for the petitioner. Mr. Prabhakar Joshi, Brief Holder for respondents No. 1 and 3.
Hon'ble Prafulla C. Pant, J.
Heard learned counsel for the petitioner and learned Brief Holder for respondent State.
2) By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the proceedings of Criminal Case No. 153 of 2005, State Vs. Pushkar Lohiya and another, relating to offence punishable under Section 368 of I.P.C., police station 2
Lohaghat, pending in the court of Judicial Magistrate, Pithoragarh.
3) Brief facts of the case are that respondent No. 2 Sapna Chand lodged a first information report on 26.02.1998, which is registered as Crime No. 01 of 1998, Patwari Chowki Jhulaghat, alleging that on the day of 'Raksha Bandhan' in the year 1997, accused Pushkar Lohiya (not the petitioner) enticed her away to Punjab and committed rape with her. In the first information report (copy of which is Annexure -1 to the petition), there is not a single word as against the present petitioner Iqbal Ahmed. It appears that during investigation statement of the girl (Sapna Chand) was recorded under Section 164 of Cr.P.C by the Addl. Judicial Magistrate, Khatima (copy of which is annexed as Annexure -5 to the petition). In her statement under Section 164 of Cr.P.C. also, she had made allegations only against Pushkar Lohiya, and not against the present petitioner. However, in her statement under Section 161 of Cr.P.C. it is mentioned that she told the police that after Pushkar Lohiya left her at Bareilly she on her own motion came to Khatima, where one Kashi Ram Saxena took her to the school run by the petitioner Iqbal Ahmed, where she did teaching. In her statement under Section 161 of Cr.P.C. she has simply stated that behaviour of petitioner was not good. It is nowhere stated by her that petitioner had abducted her or committed rape with her, or kept her knowingly that she was an abducted girl. 3
4) Learned Brief Holder for the State submitted that only charge against the petitioner Iqbal Ahmed is that of 368 of I.P.C., while the another accused Pushkar Lohiya is facing trial in respect of other offences also. It is contended on behalf of the respondents that since Sapna Chand (respondent No. 2) lived with petitioner at Khatima, as such, he is facing charge of offence punishable under Section 368 of I.P.C. In reply to this, learned counsel for the petitioner submitted that the ingredients of offence punishable under Section 368 of I.P.C. are not made out for the reason that the accused who abducted the girl had already left her at Bareilly from where the girl herself on her own motion came to Khatima and lived with the petitioner and served in his school. There is no allegation either in the first information, or in the statement recorded under Section 164 of I.P.C., or under Section 161 of Cr.P.C. that the petitioner had ever abducted or committed rape or kept the victim in his custody in confinement. Unless and until it is shown that the girl was kept in confinement after she was abducted, the provisions of Section 368 of I.P.C. are not attracted, as the ingredients of the offence, even if prosecution story is taken to be true, are not made out.
5) It is pertinent to mention here that with the rejoinder affidavit the petitioner has filed copy of the judgment passed by the trial court in Sessions Trial No. 42 of 2005, whereby the accused Pushkar Lohiya has 4
already been acquitted of the charge of offences punishable under Section 363, 366, 376 of I.P.C. (copy of said judgment and order dated 25.06.2007, passed in Sessions Trial No. 42 of 2005, is filed as Annexure R.A. -20 to the rejoinder affidavit). Perusal of said judgment shows that the girl has not turned up to support the prosecution story before the learned Sessions Judge, even against Pushkar Lohiya. Attention of this Court is also drawn to the copy of the general diary filed as Annexure -8 to the petition, which shows that the girl Sapna Chand (respondent No. 2), who lived in Nari Niketan has absconded from there in the year 2001, and since then not traceable.
6) In the above circumstances, since the ingredients of the offence punishable under Section 368 of I.P.C. are not made out (even if the prosecution story is taken to be true), as against the petitioner Iqbal Ahmed, making the petitioner to face the trial would amount nothing except abuse of process of law. Therefore, the petition under Section 482 of Cr.P.C. is allowed. Proceedings of the aforesaid criminal case as against the present petitioner Iqbal Ahmed, are hereby quashed.
(Prafulla C. Pant, J.)
Dt. March 16, 2010.