Ainul Ansari vs State of Jharkhand and Others

Dhrub Narayan Upadhyay, J—Heard the parties. This Cr.M.P. has been filed with a prayer to quash the Order dated 5.7.2001 passed in connection with Bokaro P.S. Case No. 14/2001 [G.R. No. 229/2001], by Additional Chief Judicial Magistrate, Bermo at Tenughat by which cognizance has been taken against the petitioner under Sections 363, 366, 376, 342 and 347 of the Indian Penal Code.

The facts in brief is that the informant Lakhan Manjhi happens to be son of the victim. It is disclosed that on 22.2.2001 the petitioner was seen talking to the mother of the informant whereafter mother of the informant was taken by the petitioner and his associates on a motorcycle. The informant went to the Police Station and informed the matter but the action taken was not brought to his notice. On 3.4.2001, the informant found his mother in the house of the petitioner where the petitioner was also present. He was apprehended with the help of nearby people and was handed over to the Police and fardbayan of the informant Lakhan Manjhi was recorded at 17:00 hrs. on 3.4.2001 at Bokaro Steel City Police Station. The Police after due investigation submitted charge-sheet against the petitioner and accordingly cognizance by impugned order has been taken.

It is submitted that the Investigating Officer did not examine the victim lady nor she was sent for her medical examination. The victim was accompanying the petitioner out of her free will and the Investigating Officer before submitting charge-sheet, has not ascertained whether sexual intercourse by the petitioner with the victim was committed with consent or it was forcible and without consent. There is delay of two months in lodging the F.I.R. The informant has lodged this case with ulterior motive and malice. The victim as well as petitioner were employees in the same Department under Central Coalfields Ltd. Even after alleged date of occurrence i.e. 22.2.2001, the victim never appeared before anyone to raise any complaint against the petitioner. In the circumstances, entire prosecution launched against the petitioner and the cognizance order dated 5.7.2001 arising out of Bokaro P.S. Case No. 14/2001 are liable to be quashed.

Learned counsel appearing for the informant/opposite party has raised objection and submitted that occurrence was immediately informed to the Police but they have not taken proper action. As a result, the informant was searching his missing mother who was allegedly kidnapped by the petitioner and lastly has succeeded to find her out on 3.4.2001 and then fardbayan of the informant was recorded. It is well disclosed in the fardbayan itself that his victim mother was an illiterate lady and she was compelled to put her signature on various papers and documents at the instance of the petitioner. She was misled and abducted by the petitioner. Victim is cited as a witness in the charge-sheet. The offence is serious and, therefore, this Cr.M.P. has no merit and is liable to be dismissed.

Learned counsel for the State has also opposed the prayer and submitted that grounds taken for quashing of the entire criminal prosecution and the cognizance order are not tenable.

I have gone through fardbayan of the informant which constitutes the offence alleged for which charge-sheet has been submitted. So far delay is concerned, it has been explained by the informant in his fardbayan that he had immediately informed to the Police but no action was taken and he was searching his mother. After succeeding in making the search, the petitioner was apprehended and produced before the Police. On the sole ground of delay in lodging the F.I.R., the F.I.R. could not be quashed under Section 482 Cr.P.C.

I do not think that Section 482 Cr.P.C. empowers this Court to quash the criminal prosecution having such fact without giving opportunity to the aggrieved to adduce their evidence. The trial could not be decided before being commenced. No ground of malicious prosecution or vengeance has been brought on record. So far question of commission of rape, consent or without consent, is to be decided by the Trial Court after examining the prosecutrix. Even admitting it to be correct that the Investigating Officer has not recorded statement of the victim under Section 161 Cr.P.C. the victim is competent witness and she has every right to be examined and depose before the Court. Her liberty could not be curtailed only because the Investigating Officer had conducted a faulty investigation by not examining her. In the circumstances and discussions made above, I do not find any merit in this Cr.M.P. and accordingly, same stands dismissed. The trial court is at liberty to proceed further in accordance with law and interim protection by which the proceeding has been stayed, stands vacated.