State of U.P v. Ashan) pending before the court of Learned Additional Session Judge, Court No

1. Heard Mr. Osama Qamar Siddiqui alongwith Qamrul Hasan Siddiqui, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

4. Applicant-Ashan @ Ahsaan Khan, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow this instant application quashing the entire prosecution of Case No. 334 of 2021 (State of U.P. versus Ashan) pending before the court of Learned Additional Session Judge, Court No. 03, Fatehpur initiated in pursuance of Charge Sheet No. 01 of 2021 dated 16.02.2021 in Case Crime No.0022 of 2021 under Section 376 of Indian Penal Code, Police Station- Lalauli District- Fatehpur, further for quashing of the impugned Charge Sheet No- 01/2021 dated 16.02.2021, submitted before the court of Learned ACJM, Court No 03), District- Fatehpur and further quashing the Cognizance Order dated 28.07.2021 passed by Session Judge, Fatehpur. It is further prayed before this Hon'ble Court may kindly be pleased to stay further proceedings of the instant case bearing Case No. 334 of 2021 (State of U.P. versus Ashan) pending before the court of Learned Additional Session Judge, Court No. 03, Fatehpur, during the pendency of the present application. And/Or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case in the interest of justice."

5. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and facing trial before Court below, however in view of the peculiar facts and circumstance of the case as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, present application is liable to be allowed by this Court.

6. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 21.01.2021 was lodged by the first informant opposite party-2 Sajid Ali (father of the prosecutrix) and was registered as Case Crime No.0022 of 2021 under Section 376 of I.P.C., Police Station- Lalauli District- Fatehpur. In the aforesaid FIR, applicant has been nominated as solitary named accused.

7. However, subsequent to aforementioned FIR dated 21.01.2021, applicant solemnized marriage with the prosecutrix on 06.08.2021 in accordance with Muslims Rites and Rituals. Photocopy of the Nikahnama has been brought on record and is at page 89 of the paper book As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. It is next contended by the learned counsel for applicant that from the aforesaid wedlock a son namely Rabeel Khan was also born. Averment to that effect has been made in paragraph 26 of the affidavit filed in support of this application.

8. It is next contended by the learned counsel for applicant that in view of subsequent developments parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a compromise was entered into. Subsequently, the terms of compromise were reduced in writing by way of a compromise deed dated 13.08.2021. The said compromise deed has been brought on record and is at page 86 of the paper book. Subsequently, the said compromise was filed before Court below which fact is evident from the order dated 15.04.2025 passed by Court below.

9. Learned counsel for applicant then submits that first informant opposite party-2 is an old man aged about 70 years and is residing at Mumbai. However, on account of ill-health, the first informant opposite party-2 unable to appear before Court below for verification of compromise. As such, the compromise entered into by the parties could not be inferred.

10. On the above conspectus, the learned counsel for applicant submits that the criminality if any committed by applicant now stands washed off. The parties alongwith their child are living together as a happy family. In view of above and also the compromise entered into by the parties, the chances of conviction of accused applicant are now not only remote but also bleak. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, then a happy family shall stand broken.

11. Per contra, the learned A.G.A. representing State opposite party 1 has vehemently opposed the present application. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Offence complained of is not private in nature but a crime against society. The criminality committed by accused appicant is not only illegal but also immoral. As such, no interference is warranted by this Court in present application. Learned A.G.A. has also referred to the judgement of Supreme Court in Rampal Vs. State of Haryana, AIR online 2019 SC 1716 wherein the Apex Court has observed that there can be no compromise in matters relating to rape and sexual assault As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. On the other hand, Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2 does not oppose this application. As per instructions received by him, he submits that he has been instructed not to oppose this application. He further contends that it is now an admitted fact to the parties that the prosecutrix has solemnized marriage with applicant in accordance with Muslims Rites and Rituals and she is now residing with applicant as his legally wedded wife. From the aforesaid wedlock a son namely Rabeel Khan was also born. Parties are living together as a happy family. He therefore, contends that he cannot have any objection in case, the present application is decided by this Court taking into consideration the aforementioned facts.

13. Be that as it may, the crux of the matter is that prosecutrix has solemnized marriage with applicant in accordance with Muslims Rites and Rituals and she is now residing with applicant as his legally wedded wife. From the aforesaid wedlock a son namely Rabeel Khan was also born. Parties are living together as a happy family.

14. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that matter requires consideration.

15. Notice on behalf of State- opposite party 1 has been accepted by the learned A.G.A.

16. S.M. Muzammil Mahmood, Advocate, has put in appearance on behalf of first informant opposite party-2.

17. Opposite parties 1 and 2 may file their respective counter affidavits within four weeks. Applicant will have 2 weeks thereafter to file his rejoinder affidavit.

18. List this application for admission on 01.07.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above and also the judgments of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 105, Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433 and Criminal Appeal No.41 of 2001 (Sriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025 respectively as an interim measure, it is hereby, no coercive action shall be taken against applicant by Court below in Case No. 334 of 2021 (State of U.P. versus Ashan) arising out of Case Crime No.0022 of 2021 under Section 376 I.P.C. Police Station- Lalauli District- Fatehpur, now pending in the court of Additional Session Judge, Court No. 03, Fatehpur. Order Date :- 22.4.2025 Imtiyaz

1. Heard Mr. Osama Qamar Siddiqui alongwith Qamrul Hasan Siddiqui, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

4. Applicant-Ashan @ Ahsaan Khan, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow this instant application quashing the entire prosecution of Case No. 334 of 2021 (State of U.P. versus Ashan) pending before the court of Learned Additional Session Judge, Court No. 03, Fatehpur initiated in pursuance of Charge Sheet No. 01 of 2021 dated 16.02.2021 in Case Crime No.0022 of 2021 under Section 376 of Indian Penal Code, Police Station- Lalauli District- Fatehpur, further for quashing of the impugned Charge Sheet No- 01/2021 dated 16.02.2021, submitted before the court of Learned ACJM, Court No 03), District- Fatehpur and further quashing the Cognizance Order dated 28.07.2021 passed by Session Judge, Fatehpur. It is further prayed before this Hon'ble Court may kindly be pleased to stay further proceedings of the instant case bearing Case No. 334 of 2021 (State of U.P. versus Ashan) pending before the court of Learned Additional Session Judge, Court No. 03, Fatehpur, during the pendency of the present application. And/Or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case in the interest of justice."

5. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and facing trial before Court below, however in view of the peculiar facts and circumstance of the case as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, present application is liable to be allowed by this Court.

6. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 21.01.2021 was lodged by the first informant opposite party-2 Sajid Ali (father of the prosecutrix) and was registered as Case Crime No.0022 of 2021 under Section 376 of I.P.C., Police Station- Lalauli District- Fatehpur. In the aforesaid FIR, applicant has been nominated as solitary named accused.

7. However, subsequent to aforementioned FIR dated 21.01.2021, applicant solemnized marriage with the prosecutrix on 06.08.2021 in accordance with Muslims Rites and Rituals. Photocopy of the Nikahnama has been brought on record and is at page 89 of the paper book As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. It is next contended by the learned counsel for applicant that from the aforesaid wedlock a son namely Rabeel Khan was also born. Averment to that effect has been made in paragraph 26 of the affidavit filed in support of this application.

8. It is next contended by the learned counsel for applicant that in view of subsequent developments parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a compromise was entered into. Subsequently, the terms of compromise were reduced in writing by way of a compromise deed dated 13.08.2021. The said compromise deed has been brought on record and is at page 86 of the paper book. Subsequently, the said compromise was filed before Court below which fact is evident from the order dated 15.04.2025 passed by Court below.

9. Learned counsel for applicant then submits that first informant opposite party-2 is an old man aged about 70 years and is residing at Mumbai. However, on account of ill-health, the first informant opposite party-2 unable to appear before Court below for verification of compromise. As such, the compromise entered into by the parties could not be inferred.

10. On the above conspectus, the learned counsel for applicant submits that the criminality if any committed by applicant now stands washed off. The parties alongwith their child are living together as a happy family. In view of above and also the compromise entered into by the parties, the chances of conviction of accused applicant are now not only remote but also bleak. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, then a happy family shall stand broken.

11. Per contra, the learned A.G.A. representing State opposite party 1 has vehemently opposed the present application. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Offence complained of is not private in nature but a crime against society. The criminality committed by accused appicant is not only illegal but also immoral. As such, no interference is warranted by this Court in present application. Learned A.G.A. has also referred to the judgement of Supreme Court in Rampal Vs. State of Haryana, AIR online 2019 SC 1716 wherein the Apex Court has observed that there can be no compromise in matters relating to rape and sexual assault As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. On the other hand, Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2 does not oppose this application. As per instructions received by him, he submits that he has been instructed not to oppose this application. He further contends that it is now an admitted fact to the parties that the prosecutrix has solemnized marriage with applicant in accordance with Muslims Rites and Rituals and she is now residing with applicant as his legally wedded wife. From the aforesaid wedlock a son namely Rabeel Khan was also born. Parties are living together as a happy family. He therefore, contends that he cannot have any objection in case, the present application is decided by this Court taking into consideration the aforementioned facts.

13. Be that as it may, the crux of the matter is that prosecutrix has solemnized marriage with applicant in accordance with Muslims Rites and Rituals and she is now residing with applicant as his legally wedded wife. From the aforesaid wedlock a son namely Rabeel Khan was also born. Parties are living together as a happy family.

14. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. S.M. Muzammil Mahmood, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that matter requires consideration.

15. Notice on behalf of State- opposite party 1 has been accepted by the learned A.G.A.

16. S.M. Muzammil Mahmood, Advocate, has put in appearance on behalf of first informant opposite party-2.

17. Opposite parties 1 and 2 may file their respective counter affidavits within four weeks. Applicant will have 2 weeks thereafter to file his rejoinder affidavit.

18. List this application for admission on 01.07.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above and also the judgments of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 105, Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433 and Criminal Appeal No.41 of 2001 (Sriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025 respectively as an interim measure, it is hereby, no coercive action shall be taken against applicant by Court below in Case No. 334 of 2021 (State of U.P. versus Ashan) arising out of Case Crime No.0022 of 2021 under Section 376 I.P.C. Police Station- Lalauli District- Fatehpur, now pending in the court of Additional Session Judge, Court No. 03, Fatehpur. Order Date :- 22.4.2025 Imtiyaz