Akhilesh v. State of U.P. and

1. Heard Mr. Vijay Bahadur Shivhare, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 482 Cr.P.C. has been served upon first informant opposite party No.4 on 21.12.2024. However, in spite of service of notice upon first informant opposite party-4 neither any counter affidavit has been filed by first informant/opposite party No.2 nor anyone has put in appearance on his behalf to oppose this application even in revised call.

4. Applicant- Akhilesh, 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 kindly be pleased to allow the application and quash the entire criminal proceeding including charge sheet and summoning order dated 19.11. 2024 of Case No. 1560 of 2024 arising out of case crime No. 480 of 2023 under section 363,376 IPC & 3/4 Pocso Act at Police Station-Kurara, District- Hamirpur. It is further prayed that this Hon'ble Court may also be pleased to stay the further proceeding including charge sheet and summoning order dated 19-11-2024 of Case No. 1560 of 2024 arising out of case crime No. 480 of 2023 under section 363, 376 IPC & 3/4 Pocso Act at Police Station-Kurara, District- Hamirpur pending in the court of learned Additional District and Sessions Judge/ Special Judge Pocso Act Hamirpur, District -Hamirpur during the pendency of present criminal misc. application before this Hon'ble Court. And/or pass such other and further order, which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case."

5. At the very outset, the learned A.G.A. submits that feeling aggrieved by the FIR dated 30.12.2023 lodged by first informant opposite party-4 and giving rise to impugned criminal proceedings applicant had approached this Court by means of Criminal Misc. Writ Petition No. 11318 of 2024 (Akhilesh Vs. State of U.P. and 2 others). In the aforesaid writ petition an interim order 30.07.2024 was passed. For ready reference the same is reproduced herein below:- "1. Heard Sri Vijay Bahadur Shivhare, learned counsel for the petitioner and Sri Pankaj Saxena, learned A.G.A. for the State- respondents.

2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 30.12.2023 registered as Case Crime No.0480 of 2023, under Section-363 I.P.C., Police Station-Kurara, District-Hamirpur, and for a direction to the respondents not to arrest the petitioners in pursuance of the impugned first information report.

3. On 08.07.2024, following order was passed: "1. Learned counsel for the petitioner submits that previously FIR was registered on 24.11.2024 as case crime no. 436 of 2023,, under Section 363 IPC against the petitioner by informant- mother of Varsha. It is further submitted that the petitioner was arrested in the said FIR, the girl was recovered and handed over to the parents.

2. Learned counsel submits that again the girl had left her home on 28.12.2023 as she wants to stay with the petitioner. It is further submitted that on that date, the petitioner was in judicial custody and the FIR has been registered with the allegation that the petitioner has a hand in enticing away the daughter of the informant.

3. Learned counsel submits that Varsha, the daughter of the informant is presently in the custody of Officer in Charge, Girls Home Unit-2, Surya Bihar Chaura Navi Basti, Nawab Ganj, Kanpur. It is also submitted that the girl is pregnant and has relied upon a certificate.

4. List again on 30.07.2024 as fresh.

5. In the meantime, Officer in Charge, Girls Home Unit-2, Surya Bihar Chaura Navi Basti, Nawab Ganj, Kanpur is directed to produce Varsha, the daughter of Late Awadhesh Kumar, resident of village Mishripur, Police Station Kurara, District Hamirpur for her medical examination before a Government Hospital as well as before the Chief Judicial Magistrate, Kanpur for recording her statement and submit a report before the next date fixed."

4. Pursuant to the above quoted order, she was produced before the Medical Officer wherein she refused to go in for internal examination. Her statement u/s 164 Cr.P.C. has been recorded which was produced before us.

5. We have carefully gone through the statement so recorded and we find that she has not supported the prosecution version and specific allegation has been levelled against the informant side/against her family members and had categorically stated that she herself had gone to Greater Noida and false information against Akhilesh was lodged that he had taken her away.

6. Learned counsel for the petitioner further pointed out that in fact, she is pregnant by three months as indicated in the report annexed as Annexure no.5 to the writ petition. It is also submitted that even the first information report discloses the fact that on the earlier occasion also she had gone away with the petitioner herein. Submission, therefore, is that the petitioner has been falsely implicated and no offence u/s 363 IPC is made out.

7. Matter requires consideration.

8. Issue notice to respondent no.3 returnable at an early date. Steps be taken within a week.

9. All the respondents may file counter affidavit within four weeks. The petitioner shall have three weeks time, thereafter, to file rejoinder affidavit.

10. List thereafter.

11. Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., the arrest of the petitioner, pursuant to the aforesaid impugned first information report, shall remain stayed, provided he cooperates in the investigation."

6. According to the learned counsel for applicant, the aforesaid writ petition is still pending.

7. In view of the law laid down by Apex Court that a writ petition challenging the veracity of an FIR does not infructuous upon submission of charge sheet/police report by the Investigating Officer in terms of Section 173(2) Cr.P.C., therefore, it is desirable that this application be heard alongwith aforementioned writ petition.

8. In view of above, connect this application alongwith aforementioned writ petition.

9. Accordingly, matter shall re-appear for orders as fresh on 26.03.2025 along with connected matter before appropriate Bench after obtaining an order of nomination from Hon'ble The Chief Justice. Order Date :- 19.3.2025 Imtiyaz

1. Heard Mr. Vijay Bahadur Shivhare, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 482 Cr.P.C. has been served upon first informant opposite party No.4 on 21.12.2024. However, in spite of service of notice upon first informant opposite party-4 neither any counter affidavit has been filed by first informant/opposite party No.2 nor anyone has put in appearance on his behalf to oppose this application even in revised call.

4. Applicant- Akhilesh, 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 kindly be pleased to allow the application and quash the entire criminal proceeding including charge sheet and summoning order dated 19.11. 2024 of Case No. 1560 of 2024 arising out of case crime No. 480 of 2023 under section 363,376 IPC & 3/4 Pocso Act at Police Station-Kurara, District- Hamirpur. It is further prayed that this Hon'ble Court may also be pleased to stay the further proceeding including charge sheet and summoning order dated 19-11-2024 of Case No. 1560 of 2024 arising out of case crime No. 480 of 2023 under section 363, 376 IPC & 3/4 Pocso Act at Police Station-Kurara, District- Hamirpur pending in the court of learned Additional District and Sessions Judge/ Special Judge Pocso Act Hamirpur, District -Hamirpur during the pendency of present criminal misc. application before this Hon'ble Court. And/or pass such other and further order, which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case."

5. At the very outset, the learned A.G.A. submits that feeling aggrieved by the FIR dated 30.12.2023 lodged by first informant opposite party-4 and giving rise to impugned criminal proceedings applicant had approached this Court by means of Criminal Misc. Writ Petition No. 11318 of 2024 (Akhilesh Vs. State of U.P. and 2 others). In the aforesaid writ petition an interim order 30.07.2024 was passed. For ready reference the same is reproduced herein below:- "1. Heard Sri Vijay Bahadur Shivhare, learned counsel for the petitioner and Sri Pankaj Saxena, learned A.G.A. for the State- respondents.

2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 30.12.2023 registered as Case Crime No.0480 of 2023, under Section-363 I.P.C., Police Station-Kurara, District-Hamirpur, and for a direction to the respondents not to arrest the petitioners in pursuance of the impugned first information report.

3. On 08.07.2024, following order was passed: "1. Learned counsel for the petitioner submits that previously FIR was registered on 24.11.2024 as case crime no. 436 of 2023,, under Section 363 IPC against the petitioner by informant- mother of Varsha. It is further submitted that the petitioner was arrested in the said FIR, the girl was recovered and handed over to the parents.

2. Learned counsel submits that again the girl had left her home on 28.12.2023 as she wants to stay with the petitioner. It is further submitted that on that date, the petitioner was in judicial custody and the FIR has been registered with the allegation that the petitioner has a hand in enticing away the daughter of the informant.

3. Learned counsel submits that Varsha, the daughter of the informant is presently in the custody of Officer in Charge, Girls Home Unit-2, Surya Bihar Chaura Navi Basti, Nawab Ganj, Kanpur. It is also submitted that the girl is pregnant and has relied upon a certificate.

4. List again on 30.07.2024 as fresh.

5. In the meantime, Officer in Charge, Girls Home Unit-2, Surya Bihar Chaura Navi Basti, Nawab Ganj, Kanpur is directed to produce Varsha, the daughter of Late Awadhesh Kumar, resident of village Mishripur, Police Station Kurara, District Hamirpur for her medical examination before a Government Hospital as well as before the Chief Judicial Magistrate, Kanpur for recording her statement and submit a report before the next date fixed."

4. Pursuant to the above quoted order, she was produced before the Medical Officer wherein she refused to go in for internal examination. Her statement u/s 164 Cr.P.C. has been recorded which was produced before us.

5. We have carefully gone through the statement so recorded and we find that she has not supported the prosecution version and specific allegation has been levelled against the informant side/against her family members and had categorically stated that she herself had gone to Greater Noida and false information against Akhilesh was lodged that he had taken her away.

6. Learned counsel for the petitioner further pointed out that in fact, she is pregnant by three months as indicated in the report annexed as Annexure no.5 to the writ petition. It is also submitted that even the first information report discloses the fact that on the earlier occasion also she had gone away with the petitioner herein. Submission, therefore, is that the petitioner has been falsely implicated and no offence u/s 363 IPC is made out.

7. Matter requires consideration.

8. Issue notice to respondent no.3 returnable at an early date. Steps be taken within a week.

9. All the respondents may file counter affidavit within four weeks. The petitioner shall have three weeks time, thereafter, to file rejoinder affidavit.

10. List thereafter.

11. Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., the arrest of the petitioner, pursuant to the aforesaid impugned first information report, shall remain stayed, provided he cooperates in the investigation."

6. According to the learned counsel for applicant, the aforesaid writ petition is still pending.

7. In view of the law laid down by Apex Court that a writ petition challenging the veracity of an FIR does not infructuous upon submission of charge sheet/police report by the Investigating Officer in terms of Section 173(2) Cr.P.C., therefore, it is desirable that this application be heard alongwith aforementioned writ petition.

8. In view of above, connect this application alongwith aforementioned writ petition.

9. Accordingly, matter shall re-appear for orders as fresh on 26.03.2025 along with connected matter before appropriate Bench after obtaining an order of nomination from Hon'ble The Chief Justice. Order Date :- 19.3.2025 Imtiyaz