Afroz Alam v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.83789 of 2019 Arising Out of PS. Case No.-396 Year-2017 Thana- NAUTAN District- West Champaran ====================================================== AFROZ ALAM Son of Saheban Mian @ Saheb Mian Resident of VillageMahuawa Madarsa, Police Station- Nautan (Jagdishpur), District- West Champaran ... ... Petitioner/s

Versus

1.

THE STATE OF BIHAR 2.

Ranju Kumari D/o Ram Lakhan Mahto Resident of Village- Mahuawa Madarsa, Police Station- Nautan (Jagdishpur), District- West Champaran ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Shiv Kumar Dwivedy For the Opposite Party/s :

Mr.Shailendra Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT Date : 06-01-2020 Heard learned counsel for the parties.

This application has been filed under Section 482 of the Cr.P.C for quashing the order dated 13.05.2019 passed by learned Additional Sessions Judge-I, Bettiah, West Champaran in Nautan (Jagdishpur) P.S. Case No. 396 of 2017, instituted under Sections 365, 376(G), 504/34 of the Indian Penal Code by which learned court below took cognizance against the accusedpetitioners for the offence punishable under Sections 363, 366(A) and 376 of the Indian Penal Code and Section 4 of the POCSO Act.

Informant in her written complaint has alleged that on 15.08.2017 at about 11:00 pm when she had gone to attend the

Patna High Court CR. MISC. No.83789 of 2019 dt.06-01-2020 2/3 call of nature, in the meantime Majid Ansari, Afroz Alam, Bittu Mian forcefully took her on motorcycle to an unknown place where Majid Ansari forced her to marry him. Thereafter FIR named accused along with petitioner committed rape upon her and intimidated her to marry Majid Ansari and said that we are granting you 15 days time and if you will deny then we will kill you. On the pressure of villagers and Ajay Kushwaha (Zila Parshad), Majid Ansari and Afroz Alam on 30.08.2017 at about 12:00 pm handed her to her parents. On the basis of said written complaint Nautan (Jagdishpur) P.S. Case No. 396 of 2017 was instituted and after completing investigation police submitted chargesheet against the petitioner and the court below by order dated 13.05.

2019 on the basis of police paper, took cognizance against the petitioner under Sections 363, 366(A) and 376 of the Indian Penal Code and Section 4 of the POCSO Act. On the basis of evidence collected during investigation, case diary and chargesheet filed against petitioner, the court below found prima facie case to be made out against the petitioner and took cognizance for the offence punishable under Sections 363, 366(A) and 376 of the Indian Penal Code, Section 4 of the POCSO Act, and issued summons for his appearance to face trial.

Patna High Court CR. MISC. No.83789 of 2019 dt.06-01-2020 3/3 At the stage of taking cognizance the court has to form an opinion on the basis of materials available in case diary that whether a prima facie case is made out against the accused or not.

The defence of the accused cannot be considered at the time of taking cognizance. This Court in its inherent jurisdiction cannot substitute its view regarding sufficiency or adequacy of material before the court below at the time of taking cognizance and issuance of summons against accused as same is within exclusive domain of trial court, as such I am not inclined to interefere with the order dated 13.05.2019 passed by learned Additional Sessions Judge-I, Bettiah, West Champaran However, the petitioner will be at liberty to raise all the issues raised before this Court as well as other points available to him in accordance with law at subsequent stage i.e. at the time of framing of charge.

Subject to the aforesaid observation and liberty, this application is disposed of.

(S. Kumar, J) ranjan/- AFR/NAFR NAFR CAV DATE NA Uploading Date 08.01.2020 Transmission Date 08.01.2020