The Allahabad High Court allowed the bail application of a man accused of raping a minor while observing the procedure for determining a victim’s age provided in Section 94 of the JJ Act, 2015 read with JJ Rules, 2016 shall not apply to bail applications.

A single-judge bench of Justice Ajay Bhanot passed this order while hearing a criminal misc bail application filed by Monish.

The applicant prayed to be enlarged on bail in case at Police Station Majhola, District Moradabad, under Sections 376, 506 IPC and Sections 3/4 POCSO Act and Sections 3(2)(v), 3(2) (va), 3(1)(2) of SC/ST Act.

The applicant is on interim bail granted by the Court on 01.04.2022.

The prosecution case is that the applicant committed inappropriate sexual acts with the minor victim.

SP Tiwari, the counsel for the juvenile, made the following submissions:

(i) A false date of birth was recorded in the school registers by the parents of the victim to give her an advantage in life.

(ii) Various documents like Pariwar Register and Aadhaar card which reflect her true age and contradict the prosecution case have not been produced.

(iii) The pathological report reflects that the victim is 17.

(iv) The victim is in fact a major. However, no medical examination to determine her age as per the latest scientific criteria and medical protocol was done by expert doctors as it would falsify the prosecution case.

(v) Inconsistencies in the age of the victim as stated in the FIR, the statement of the victim under Section 161 CrPC, Section 164 CrPC, school certificate and the age in the pathological report discredit the prosecution case regarding the victim’s minority.

Rishi Chaddha, Additional Government Advocate for the State, contended that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 20151 contemplates that the age depicted in the documents enumerated therein is conclusive and the same cannot be put to challenge in bail proceedings.

Further, the offence is disclosed in the FIR which alone is sufficient to trigger the presumption of guilt under Section 29 of the POCSO Act, 2012.

The AGA’s submissions were:

(i) POCSO Act is a special Act where the legislature has made stringent provisions to protect the interests of victims who are minors.

(ii) Section 94 of the JJ Act, 2015 shall be strictly interpreted and applied at the bail stage to implement the intent of the legislature.

(iii) The presumption of Section 29 of the POCSO Act, 2012 is triggered at the lodgement of the FIR otherwise its purpose will be defeated.

(iv) The legislative intent was clearly to restrict the right of bail considering the gravity of the offences.

The Court said clearly courts do not resist introduction of evidence beyond the documents enumerated in Section 94 of the JJ Act, 2015 to arrive at the truth and to serve justice the facts and circumstances of a case so require.The controversy has to be seen from another perspective as well. Section 94 of the J.J Act, 2015 creates a hierarchy of documents which corresponds to the degree of reliability. From a bare reading, the provision envisages that where a document higher in the said pecking order is available, the documents lower in the statutory preference shall not be received in evidence.

Such an embargo on receiving evidence is made on the foot of the concept of presumption of facts. In the context of the JJ Act, 2015, it means that when a document higher on the preferential scale of Section 94 of the J.J Act, 2015 is produced, it is presumed to be correct and sufficient to establish the age of the victim. Thus the need for any other evidence is obviated and reception of further evidence is proscribed.

Section 94 of the JJ Act, 2015 was devised for juveniles in conflict with law but it is also applied to determine the age of child victims of sexual offences committed by adult accused. While determining a POCSO victim’s age under Section 94 of the JJ Act, 2015, it has to be acknowledged that there is a difference in the claim of juvenility raised by the accused, and the claim of minority of a victim set up by the prosecution.

Interpretation of the provisions of Section 94 of the JJ Act, 2015 read with Rule 54(18)(iv) of the JJ Rules, 2016 has to be made in a manner that it does not lead to miscarriage of justice for adult offenders accused under the POCSO Act. Section 94 of the JJ Act, 2015, abridges the age determination procedure to benefit juvenile offenders, but its purpose is not to undermine the rights of adult accused.

Section 94 of the JJ Act, 2015 does not lighten the burden of the prosecution to prove primary facts by adducing evidence which reaches the standard of “beyond reasonable doubt”. The primary facts to trigger the presumption in the context of the age of a victim are the age related documents mentioned in Section 94 of the J J Act, 2015.

Once the said documents are proved “beyond reasonable doubt” the prosecution may invoke the presumption of correctness of age recorded therein and contest introduction of further evidence. However, even at that stage the court may of its own volition or at the instance of the accused decline such a plea and receive additional evidence to seek out true facts and serve justice. The courts also have an obligation to ensure that best evidence is produced at the trial.

The Court further said that,

Rights of an accused to assail the prosecution evidence relating to the age of the victim or to adduce further evidence to rebut the prosecution case cannot be infringed.

The Court while examining a bail application has to balance and reconcile diverse objectives, namely, the imperative of constitutional liberties of an accused, the necessity of bringing an offender to fair and speedy justice, and the mandate of upholding the law. In POCSO cases the victim has a statutory right to be heard.

Bail under POCSO Act offences have to be considered under Section 439 CrPC and in accordance with the settled parameters of grant of bail which include nature and gravity of the offences, and the likelihood of an accused having committed the offence. The possibility of the accused reoffending, influencing witnesses and tampering with evidence or being a flight risk are also relevant factors to be considered while deciding a bail application.

In POCSO Act related offences the age of a victim is a critical factor which will influence the decision to grant bail.

No provisions circumscribing the right of bail can be distilled from the scheme of POCSO Act. The existing norms of bail jurisprudence are sufficient to effectively implement the POCSO Act and to serve justice. Of course, the threshold of satisfaction of the Court while granting bail may vary in the facts and circumstances of each case.

The Court observed that,

The following arguments made by SP Tiwari, counsel on behalf of the applicant, which could not be satisfactorily refuted by Rishi Chaddha, AGA from the record, entitle the applicant for grant of bail:

(i) The prosecution case set out in the FIR states that the age of the victim is 15 years.

(ii) The victim in her statement under Section 161 CrPC has stated that she is 16 years of age. As per the transfer certificate issued by the school her age is 13 years and 3 months.

(iii) There are material inconsistencies in the age related evidence relied on by the prosecution which discredits the prosecution case.

(iv) The victim has been falsely shown as minor only to aggravate the offence and cause the imprisonment of the applicant under the stringent provisions of the POCSO Act.

(v) The victim is in fact a major. Medical examination to determine the correct age of the victim as per the latest scientific and medical protocol by eminent doctors from a reputed institution was not done as it would falsify the prosecution case.

(vi) The applicant and the victim were intimate.

(vii) The FIR is a result of an opposition of the victim’s parents to her relationship with the applicant.

(viii) The statement of the victim is tutored and made at the behest of her parents only to deflect attention from the conduct of the victim and to save the failing prosecution.

(ix) No medical evidence corroborates forceful assault.

(x) There is no evidence of forceful entry in the house of the victim. The victim was at a consenting party.

(xi) The applicant does not have any criminal history apart from the instant case.

(xii) The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

In the light of the preceding discussion and without making any observations on the merits of the case, the Court allowed the bail application.

The Court ordered that,

Let the applicant Monish be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

The Allahabad High Court allowed the bail application of a woman and said the basic principle underlying the doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property.

A single-judge bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by the accused woman.

By means of the application under Section 439 of CrPC, the applicant, who is involved in case under Section 302 IPC, police station Dibai, district Bulandshahr, seeks enlargement on bail during pendency of trial.

The facts of the case are that the first informant Neetu Singh lodged a FIR on 18.1.2022 at 04.24 PM that on 17.1.2022, when the informant with his brother Ramu, Yogendra and Sriram were guarding their cows in the field, at about 6.00 P.M, Satyaveer Singh, Kalu, Sachin, Golu, who are residents of the same village, came there and took away his brother Ramu on the pretext of taking tractor to sugar mill in the night. On 18.1.2022 till 7.00 AM, when his brother did not return home, he went to the house of Satyaveer to enquire about his brother. Thereupon, Satyaveer told him that his brother is lying dead in the house of Monu, son of Rajpal.

The FIR further alleged that when the first informant visited the house of Monu along with several other persons of the village, he found the dead body of his brother was lying there. There were injuries on the head, face, eyes and body of the deceased. The informant expressed a belief that his brother has been done to death under conspiracy by Satyaveer Singh, Kalu, Sachin, Golu, Kuldeep, Richa and Monu.

The case of the applicant is that she assaulted the deceased to save herself from being raped, which resulted in his death.

It is contended by the counsel for the applicant that in fact the incident has not taken place as set up in the first information report dated 18.1.2022 lodged by the first informant, but the facts are that the deceased Ramu along with two other persons, in order to outrage the modesty of the applicant, barged into her house, dragged the applicant into another room, tore her clothes and tried to rape her. The applicant, in order to save herself from being raped, assaulted the deceased with an iron rod, which was kept in the room, which proved fatal.

It is also submitted that the information about the said incident was given by the applicant to the police by dialling 112 from her mobile on 17.01.2022 at 23:52:27 hours and the police in turn gave information to police station Dibai on 18.01.2022 at 00:13:25 O’clock.

It is pointed out by the counsel for the applicant that from the side of the applicant, the matter was also reported to the police by making an application, but the police did not lodge the FIR of the applicant.

Being unsuccessful in getting her report lodged, the applicant moved an application under Section 156(3) CrPC before the Judicial Magistrate, Bulandshahr. The Court order dated 28.1.2023 directed the Station House Officer concerned to lodge the FIR of the applicant under the appropriate section and investigate the matter, but it appears that no heed was paid to the order of the Magistrate and till date FIR has not been lodged.

It is contended by the counsel for the applicant that in her statement under Section 161 CrPC, the applicant has admitted that she assaulted the deceased with the iron rod, which was kept to untie the wheel.

It is also pointed out by the counsel for the applicant that the post-mortem report of the deceased corroborates the story set up by the applicant in her application under Section 156(3) CrPC.

On the strength of the aforesaid facts, the counsel for the applicant submitted that the deceased, in order to save herself from being molested, assaulted the deceased with the iron rod in self defence, which resulted in his death. Alternatively, it is also argued by the counsel for the applicant that considering the ante-mortem injury received by the deceased, the case against the applicant shall not traverse under Section 304 IPC inasmuch as the deceased has only received one lacerated wound 10 cm x 3 cm bone deep over head.

Lastly, it is submitted by the counsel for the applicant that there is no chance of the applicant fleeing from the judicial process or tampering with prosecution evidence.

The applicant is languishing in jail since 03.2.2022 and in case she is released on bail, she will not misuse the liberty of bail and cooperate with the trial.

On the other hand, Additional Government Advocate as well as counsel appearing on behalf of the first informant opposed the prayer for bail by submitting that the applicant along with the co-accused persons in a preplanned manner, committed the murder of the deceased. They further submitted that the weapon of assault (iron rod) has been recovered at the pointing out of the applicant.

However, AGA, upon instructions from the concerned police station, submitted that the FIR of the applicant has been registered against Ramu and Neetu Singh in case under Sections 452, 354(B) and 506 IPC, police station Dibai, district Bulandshahr. Considering the gravity of the offence, the bail application of the applicant is liable to be rejected.

The Court said the basic principle underlying the doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. Further, the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales.The case set up by the applicant in her application under Section 156(3) CrPC as well as in her statement under Section 161 CrPC is that deceased along with two others barged into the house of the applicant, dragged her to another room and tried to outrage her modesty. However, the applicant managed to get free herself from the clutches of the deceased and assaulted him with the rod, which was lying there. The fact that the deceased was living in the house along with her minor daughter and son cannot be overlooked. As per the case of the applicant, two persons were also in the house along with the deceased and the possibility of her minor daughter being subjected to molestation cannot be ruled out at this stage.

“Having heard counsel for the parties and examined the matter in its entirety, I find that the applicant has set up her case of self-defence and prima facie the preponderance of probabilities is in favour of her plea. I also find that as per prosecution case, the deceased was taken by the co-accused Satyaveer Singh, Kalu, Sachin and Golu, but how the deceased reached the house of the applicant has not been put forth by the prosecution.

Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the counsel for the parties, the Court is of the opinion that the applicant has made out a case for bail,” the Court observed while allowing the bail application.

The Court ordered let the applicant Richa, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions, which are being imposed in the interest of justice:-(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iii) That after her release, the applicant shall not be involved in any criminal activity.

(iv) The identity, status and residential proof of sureties will be verified by the court concerned before the release of the applicant.

In case of breach of any of the conditions mentioned above, the court concerned will be at liberty to cancel the bail of the applicant. 

The Allahabad High Court has granted bail to Javed Mohammad @ Pump, the alleged mastermind of the violence in Prayagraj on June 10, 2022.

A single-judge bench of Justice Sameer Jain passed this order while hearing a Criminal Misc Bail Application filed by Javed Mohammad @ Pump.

The bail application has been filed seeking release of the applicant on bail in Case under Sections 143, 144, 145, 147, 148, 149, 153-A, 153-B, 295A, 307, 332, 336, 353, 435, 427, 504, 505(2), 506, 120-B IPC, 4/5 Explosive Substance Act, 7 C.L.A Act, 83 Juvenile Justice Act and ¾ Public Property Damages Act as well as 3 Explosive Substance Act Police Station Kareli, District- Prayagraj, during pendency of the trial in the court below.

According to the FIR, the accused persons pelted stones on the vehicles of police party and set vehicles on fire and also damaged public property after Friday prayers.

In the FIR, 14 persons were named and more than 200 persons were unnamed. Applicant was named with 14 others. It is further alleged, in the incident some police personnel sustained injuries and due to the act of accused persons, law and order was severely disturbed.

The counsel for the applicant submitted that the entire allegations made against the applicant are totally false and baseless and the applicant was accused in the matter along with 14 named accused persons on the basis of general and omnibus allegations.

He further submitted that the applicant neither participated in the incident nor was he instrumental for such incident.

He also submitted that, even as per the FIR more than 200 persons were participating in the incident but out of them only 14 persons were named including applicant and this fact clearly suggest that who were well known in the locality have been implicated by the police and police nominated them in the FIR including applicant.

The counsel for the applicant said that the applicant is a social worker and he spoke out against the atrocity and only due to this reason, he has been falsely implicated by the police in the matter.

The counsel for the applicant further said that, although, there is allegation that mob was hurling bomb too and number of police vehicles were also damaged but there is no allegation that applicant was either hurling the bomb or he set the vehicles on fire or on his exhortation or instigation bombs were hurled and vehicles were burnt.

He next submitted that a number of similarly placed co-accused persons have already been released on bail in the matter by coordinate benches of the Court including the persons who were also named in the FIR along with the applicant and case of applicant is at par with those accused who were also named in the FIR.

The counsel for the applicant also said the applicant was neither arrested at the spot nor was any incriminating material recovered from his possession.

Per contra, Additional Advocate General vehemently opposed the prayer for bail and submitted that in the incident a number of police vehicles were damaged and applicant along with other accused persons promoted enmity between different groups on the grounds of religion and race.

He further submitted that the act of the applicant was prejudicial to national integration and from the FIR itself, it appears that applicant along with other accused persons tried to create terror among the common people and law and order was badly disturbed.

He also submitted that even in the statement recorded under Section 161 CrPC, the applicant stated that he is having grudge with the government and he instructed the people to gather at Atala Crossing on 10.6.2022, the date of incident and this fact clearly suggest that applicant was instrumental for the mob violence occurred on 10.6.2022.

The Court observed that it considered the entire evidence available on record including the statements of prosecution witnesses and statements of applicant and other accused persons recorded during investigation then it appears that it is a case of mob violence and at this stage, it cannot be said that the applicant was instrumental for such violence. It can only be said that he was instrumental for such a large gathering of people.

Further, applicant has been challaned under Section 143, 144, 145, 147, 148, 149, 153-A, 153-B, 295A, 307, 332, 336, 353, 435, 427, 504, 505(2), 506, 120-B IPC, 4/5 Explosive Substance Act but offences under Sections 143, 144, 145, 147, 148, 336, 435, 427, 504 are bailable and except offences under Section 307 IPC and 5 Explosive Substances Act for all the offences maximum punishment is either of three years or of seven years and as there is no allegation that applicant is either having any bomb or he hurled any bomb or he caused any injury to police personnels, therefore, merely on the basis of existence of Section 307 IPC and 4/5 Explosive Substances Act in the charge-sheet he cannot be denied bail.

Further, in the FIR total 14 persons were nominated including applicants and a number of such accused persons have already been released on bail by the coordinate bench of this Court and as per allegation made in the FIR and in the statements of prosecution witnesses recorded during investigation the case of applicant is also at par with these accused persons.

“Bail is a rule and jail is an exception and bail cannot be rejected for punitive purposes. Although, it appears that due to the aggression and activeness of the applicant, people of his community gathered in large number and thereafter mob committed the violence but considering the fact that applicant does not appear to be instrumental for such violence and he is in jail, in the matter, since 10.6.2022 and number of similarly placed accused persons have already been enlarged on bail, and also considering the law laid down by the Apex Court in case of Satyendra Kumar Antil (supra) case, in my view applicant is entitled to be released on bail,” the Court further observed while allowing the bail application.

The Court ordered let the applicant- Javed Mohammad @ Pump be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and antisocial activity.

In case of breach of any of the above conditions, the prosecution will be at liberty to move an application before the Court for cancellation of the bail of the applicant.

The Allahabad High Court has dismissed an application observing that, “the acts allegedly committed by the petitioners involve firing gunshots in broad daylight hitting two persons in their chests and such offense is a very serious offense.

The Court is of the view that the proceedings of the case against the petitioners cannot be quashed on the basis of a compromise entered into between the parties”.

A Single Bench of Justice Subhash Vidyarthi passed this order while hearing an application under section 482 filed by Sanni @ Nitish @ Nitish Agrahari and 2 Others.

By means of the application the applicants are seeking quashing of the charge sheet dated 26.03.2015 filed in respect of Case under Sections 307, 323 IPC, Police Station Kotwali Akbarpur, District Ambedkar Nagar and proceedings of Session Trial pending in the Court of IIIrd Additional District and Session Judge, Ambedkar Nagar arising out of the aforesaid charge sheet on the ground that on 09.12.2022 a compromise has been entered into between the parties settling the dispute and now the opposite parties no 2 to 4 do not want to pursue the matter.

The aforesaid case was initiated on the basis of an FIR bearing Case lodged on 19.12.2014 by the opposite party no 2 Ram Prasad against the petitioners stating that the petitioner no 2 Narendra Kumar was raising construction of a wall on land in dispute.

The informant asked him not to raise any construction till the decision of the court whereupon the petitioner no 1, who is son of petitioner no 2, started beating the informant. When the informant’s sons came to intervene, petitioner no 2 Narendra shot at the informant’s son Sanjeev and another accused person shot at Umesh, another son of the informant. Petitioner no 1 Sanni assaulted the informant with a rod causing injury to his head. The informant’s youngest son Santosh was also shot at but he was not hurt.

After investigation, the police submitted a charge sheet against the petitioner no 1 Sunni under Sections 323 and 307 IPC and against the petitioner no 2 Narendra for offences under Section 30 of the Arms Act and on 08.11.2015, the learned court passed an order summoning the petitioner nos 1 & 2 for being tried for the aforesaid offenses.

In his statement recorded under Section 161 CrPC, the informant had stated that petitioner no 2 had fired at his son Sunni and petitioner no 3 Sushil had fired a shot at his second son Umesh. Sunni had assaulted the informant with the iron rod causing injury on his head and a shot was fired towards his youngest son Santosh also he was not hurt.

The injured Sanjeev also stated that petitioner no 2 Narendra had fired a shot at him. The other injured Umesh Kumar stated that petitioner no 2 had fired a shot at Sanjeev and the petitioner no 3 Sushil, son of Jamuna had fired a shot which hit him.

The Court noted that as per the averments made in support of the application, the parties have entered into a compromise. A copy of the compromise has been annexed with the affidavit, which does not bear any date. It has been mentioned in the compromise that the accused persons and the injured persons have entered into a compromise and the injured persons have pardoned the accused persons and they do not want any proceedings to continue against the accused persons.

From a perusal of the decisions of the Supreme Court, the principles governing quashing of criminal proceedings on the basis of compromise are that there is no thumb rule in this regard and each case has to be decided on the facts and circumstances of its case. Before exercising such power, the High Court must have due regard to the nature and gravity of the crime and the power to quash is to be exercised sparingly and with caution. Such a power is not to be exercised in cases involving heinous and serious offenses, which include offenses under Section 307 IPC, the Court said.

The Court further noted that,

In the case, the FIR allegations are that a land dispute is existing between the parties regarding which a case was pending. In spite of the pendency of the civil dispute, the accused persons started raising a wall at about 10 a.m and upon being objected by the informant and his sons, petitioner no 2 fired a shot which hit the informant’s son Sanjeev on his chest and the petitioner no 3 fired another shot which hit Umesh, another son of the informant, on his chest. The medico-legal examination reports of Sanjeev and Umesh are available on record, which support the FIR allegations. The statements of the informant and his injured sons Sanjeev and Umesh also support the FIR allegations. The police had submitted a charge sheet against petitioners no 1 & 2 and thereafter the name of the petitioner no 3 was added on 25.10.2021 on an application filed under Section 319 CrPC.

Since there was an old property dispute between the parties, the accused persons were known to the informant and his sons. The incident took place in broad daylight and there is no reason to doubt the identity of the persons who caused the incident.

“The accused persons have sought quashing of the charge-sheet and the proceedings merely on the ground that on 09.12.2022 the parties have entered into a compromise stating that the informant and the injured persons have pardoned the accused persons and they do not want any further proceedings in the matter and the accused persons may get the proceedings terminated in terms of the compromise. The acts allegedly committed by the petitioners involve firing gunshots in broad daylight and hitting two persons in their chests such offense is a very serious offense and the material on record, namely, the medico-legal examination report of the injured persons and the statements recorded during the investigation, fully support the FIR allegations. The offense alleged has to be treated as a crime against society and not against the injured sons of the informant alone and, therefore, the Court is of the view that the informant and his sons have no authority to pardon the accused persons.

Keeping in view the aforesaid discussion, the Court is of the considered view that the proceedings of the case against the petitioners cannot be quashed on the basis of a compromise entered into between the parties. The application under Section 482 CrPC praying for quashing of the charge sheet and the entire proceedings initiated on the basis thereof, on the sole ground that the parties have entered into a compromise”, the Court observed while dismissing the application.

The Allahabad High Court has rejected an application on the reason that that sole object of statement under Section 161 Cr.P.C is to investigate allegations and to prepare case diary for purpose of consideration by Court at stage of cognizance and summon as well as use to show contradictions during trial.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under section 482 filed by Faisal Ashraf.

G.S Chaturvedi, Senior Advocate assisted by Man Singh for applicant while pressing prayer to quash cognizance order dated 09.06.2020 in Criminal Case whereby Court of Chief Judicial Magistrate, Gautam Buddh Nagar took cognizance of offence under Sections 504 and 506 I.P.C on charge sheet dated 14.02 .2020 submitted in Case Police Station- Noida Sector-20, District- Gautam Buddh Nagar, as well as impugned summoning order dated 20.06.2022 whereby Sessions Judge, Gautam Budh Nagar has dismissed criminal revision mentioned only on a ground that charge sheet was submitted only on basis of written statements of witnesses which cannot be considered to be a statement recorded under Section 161 CrPC which mandatory requires that investigating officer will examine oral in person supposed to be acquainted with facts and circumstances of the case and police officers will adduce in writing any statement made to him in course of examination which may also include statement recorded by audio and video electronic means, therefore, entire investigation is contrary to procedure prescribed in Code of Criminal Procedure and as such charge sheet becomes illegal.

The above submissions have been opposed by Mohit Singh, counsel for opposite party No 2 that witness has given his written statement before I.O, however, she was further examined by I.O by way of asking relevant questions also as well as that there is no specific bar that examination under Section 161 CrPC has to be oral only and not in written form.

Deepak Kapoor, A.G.A has also supported arguments advanced by counsel for opposite party No 2.

The Court noted that in case, I.O has visited the place of witnesses Smt Manju Rani and Talat Zameer who handed over their written statements which were transcribed by I.O in case diary in their presence as well as original statements were made part of case diary also. I.O asked few questions to witnesses and answers thereof were also reduced into writing in case diary, therefore, only lacuna, if exists, was that witnesses have not mentioned their statements orally i.e stated in their own voice.

The Court said that,

The purpose of statements made under Section 161 Cr.P.C is to investigate an occurrence to find out culprits. So far as evidentiary value of these statements is concerned, it would only for the purpose of contradiction, if any, committed by said witness during his testimony in trial. Other than that, it has no evidentiary value.

Word “orally” also includes a statement recorded by audio video also. Purpose of ‘to examine orally’ is to ensure that I.O may record whatever is said by witness to him or relevant part of it and which has to be reduced into writing by him to avoid any kind of coercion, misrepresentation or mischief. A written statement send by post or deliver by another person may not fall under ‘to examine orally’ but a written statement submitted by witness himself to I.O and I.O has assured its genuineness and same, if reduced in writing, shall be a statement duly recorded under Section 161 CrPC.

The word ‘may’ used in Section 161 Cr.P.C gives discretion to police officers to examine orally any person as well as may reduce into writing any statement made to him, therefore, he has discretion not to reduce into writing the entire statement made to him or he may reduce into writing only gist of statement. Sole object of statement under Section 161 Cr.P.C is to investigate allegations and to prepare case diary for purpose of consideration by Court at stage of cognizance and summon as well as use to show contradictions during trial.

“In view of above discussion, there is no illegality in taking a written statement of a witness under Section 161 Cr.P.C, when it was reduced in recording in case diary in presence of witnesses as well as I.O has made questions also which are also reduced in writing along with answers. The I.O has taken sufficient precautions to ensure it to be a written statement of witnesses only.

The judgments relied upon by the Senior Counsel for applicant has no bearing as Singhara Singh (supra) was related to statement recorded under Section 164 Cr.P.C and Noor Mohammed (supra) states that procedure prescribed must be followed and as discussed above in present, procedure has been substantially followed in case”, the Court observed while rejecting the application.

The Allahabad High Court dismissed a revision petition filed to set aside the order passed by Additional Sessions Judge, Bijnor in case under section 323/34, 304/34, 504, 506 IPC, P.S Dhampur, District Bijnor.

A Single Bench of Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Revision filed by Ishwar.

The facts are that an FIR was lodged on 08.07.2016 naming the applicants Ishwar, Nand Lal, Keshav and Ghanshyam. The allegations of the FIR is that on 08.07.2016 at 10:30-11:00 am, applicant- Ishwar, Nand Lal, Ghanshyam and Keshav started construction over the disputed land. The complainant and her husband and daughter Tannu prevented them from doing so, then all the four accused persons assaulted the complainant, putting him on earth, they assaulted him with bricks. Her husband received injuries in the stomach and became unconscious. The complainant and her daughter tried to save him but the accused-persons assaulted them. They went away from there abusing and extending threats with death. The complainant took her husband to the hospital where he is under treatment. Initially the case was registered under section 323, 504, 506 IPC. Due to the death of injured, Section 304 IPC was added.

After investigation, a charge-sheet was submitted only against three accused namely Nand Lal, Ghanshyam and Keshav. The Investigating Officer exonerated the other named accused Ishwar. During the course of trial, after examination in chief of Savita Devi (complainant/ injured) an application U/s 319 CrPC was moved by the complainant/ prosecution alleging therein that accused Ishwar is named in the FIR and complainant Savita in her statement under section 161 CrPC has assigned the same role to him as the remaining accused. The examination in chief of Savita has been recorded in the court, she is one of the injured witnesses.

It is contended by the counsel for the revisionist that the trial court has summoned the revisionist only on the basis of a statement recorded under section 161 CrPC as well as examination in chief of the complainant. Without considering the entire facts and circumstances of the case, the statement U/s 161 CrPC has been relied on. Hence the summoning order is illegal and arbitrary on the face of record and is not sustainable in the eyes of law.

It is submitted by the counsel for the revisionist that general allegations have been levelled against all the accused persons. No specific allegations have been levelled against any accused persons during the course of investigation. The Investigating Officer has collected the evidence to the effect that on the date of incident, the location of the mobile number of the revisionist was not near the place of incident.

The revisionist had two mobile numbers and the location of these mobile numbers shown at Moradabad. After verification of call detail records, it was found that he was not present at the place of occurrence.

The Investigating Officer has recorded the statement of Munesh Kumar (principal of coaching centre) where the revisionist was studying and other independent witnesses namely Monu Kumar, Manjul Kumar, Ranjeet Singh, Munendra Singh, Krishna Kumar, Jitendra etc. under section 161 CrPC and they have stated that on 08.07.2016 the revisionist was present in the coaching institute from 9:30 am to 12 noon.

During the course of investigation, evidence to this effect has come that on the date of incident, the revisionist was not present at the spot and accordingly the Investigating Officer deleted his name.

It is further contended that power U/s 319 CrPC is to be exercised sparingly only when strong and cogent evidence occurs. The test that has to be applied is one which is more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.

In the absence of such satisfaction, the court should refrain from exercising power under section 319 CrPC.

Counsel further contended that Savita Devi in her statement illegally and falsely gave the name of the revisionist as well as the entire family. The learned trial court without any evidence & reasons and without recording the satisfaction has illegally summoned the revisionist. The order is not sustainable in the eye of law.

It is also contended that the trial court, without considering the legal aspect of the matter and without considering the facts and circumstances of the case, has illegally summoned the revisionist to face the trial.

AGA and counsel appearing for opposite party no 2 submitted that the Investigating Officer in collusion with the accused has wrongly exonerated the revisionist whereas the injured of the case had specifically named the revisionist as one of the accused who not only participated in causing death of her husband but also caused injuries to her.

The Investigating Officer has referred to two mobile numbers. The location of the mobile number has been shown at Moradabad, however, as per the verification report of the user of this number, it was informed to the Investigating Officer that this number is registered in the name of Keshav Kumar, the uncle of the revisionist. Thus, even the so called mobile detail record does not establish that the revisionist was at a different location inasmuch as the mobile number on the basis of which the Investigating Officer has come to this conclusion, belongs to Keshav Kumar and not to the revisionist. The entire case diary does not contain any call detail record and only a passing reference has been made by the Investigating Officer with respect to the two mobile numbers.

Counsel further contended that the revisionist has equally participated in the commission of the offence, the presence of the revisionist at the place of time and occurrence is clearly established from the statement of the injured witness during the course of trial.

The Court observed that,

It is undisputed that the revisionist was named in the FIR showing his complicity in the incident, one person has died in the incident while the other (complainant) has received injuries. The Investigating Officer has exonerated the revisionist during the investigation, on the basis of evidence that at the relevant time, his presence is not established to be at the place of occurrence as he was present at Moradabad in his coaching institute. The Investigating Officer has recorded the statement of the Manager of the coaching institute and some other witnesses. This fact is uncontroverted that the mobile, the location of which is shown to be at Moradabad is registered in the name of Keshav Kumar and further that the entire case diary does not contain any CDR and only passing reference has been made by the Investigating Officer with respect to the two mobile numbers.

The FIR of this case has been lodged by the complainant who has also received injuries in the incident naming the revisionist and attributing the role of taking part in the incident. In her statement recorded U/s 161 CrPC, she has reiterated the allegations of the FIR but the Investigating Officer on the basis of the material collected during the course of investigation as discussed above has exonerated the revisionist.

During the course of trial, the complainant has been examined as Savita Devi. Her examination in chief, was recorded in which she has again corroborated the allegations of the FIR showing the complicity of the revisionist in the incident. It is settled law that the testimony of an injured witness is of higher value and cannot be ignored.

In the case of Hardeep Singh (Supra), the Apex Court held that the power U/s 319 CrPC can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross examination for, it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.

“So applying the test laid down by the Apex Court on the set of facts, it is clear that there is strong evidence, than mere probability of the complicity of the accused in the form of testimony of injured witness and it pass the test as laid down by the Apex Court which is more than prima-facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would led to conviction. Further the material on the basis of which the revisionist was exonerated by the Investigating Officer is not conclusive in nature and this fact distinguishes this case from the case law of Bijendra Singh vs State of Rajasthan (2017) 7 SCC 706 relied on by the counsel for the revisionist. The case law cited by counsel for opposite party no 2 fully supports his arguments and is applicable in the set of facts.

In the impugned order, the trial court has narrated the entire facts and material on record and has critically analyzed all these materials. The trial court has recorded its satisfaction about the complicity of the revisionist and, therefore, has summoned him. The order is a detailed and reasoned one which is just and proper. There is no illegality or infirmity in the impugned and it needs no interference”, the Court further observed while dismissing the petition.

The Meghalaya High Court has observed that  in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is  mutual love and affection between them.

A Single Bench of Justice  W. Diengdoh  made the above observation while quashing POCSO charged against a Minor and disposing the plea filed seeking quashing of the FIR dated and the resultant criminal proceedings  under Section 5(l)/6 of the POCSO Act pending trial before the court of the Special Judge (POCSO), Shillong.

K.Ch. Gautam , Counsel for the petitioners  , submitted that the petitioner No.2 (Mother of the Victim)  had lodged an FIR before the Officer-In-Charge Pynursla PS, East Khasi Hills  in December 2020, complaining that her minor daughter was sexually assaulted by the petitioner No.1 (Minor Accused) on two occasions that is  as was narrated by her minor daughter who was found absent from her room by the teacher of the school where she was studying and who had accordingly reported the matter to the petitioner No.2. Hence the FIR.  

The  counsel for the petitioners has also submitted that the minor girl in her statement under Section 161 Cr.PC made before the police as well as in her statement made before the Magistrate under Section 164 Cr.PC had stated that it is a fact that she went with petitioner No.1 on 11.12.2020 and that she also had physical relationship with him inside his vehicle on the said date and also on 16.12.2020 when they met once again and were also involved in a physical relationship inside his vehicle. The minor girl has however stated that the petitioner No.1 is her boyfriend and her relationship with him was consensual and of her own free will.  

The Investigating Officer (I/O) has however filed the charge sheet and has come to a finding that there is prima facie evidence against the petitioner No.1 to booked him under the provisions of the POCSO Act particularly, under Section 5(l)/6 of the POCSO Act and he was made to  stand trial before the court of the Special Judge (POCSO), Shillong. The case is now at the stage of evidence. However, before the evidence could be recorded the petitioner No.1 as well as petitioner No.2 as complainant has made a prayer before the  trial court to be allowed to move the High Court with an appropriate application. Hence this application.

It is further submitted that in this instant application, the petitioner No.1 as accused and the petitioner No.2 who is the mother of the minor girl and who has also lodged the FIR as complainant on mutual understanding has jointly filed this petition which reflected the bonafide of the petitioners.  

The counsel for the petitioners has also submitted that this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent. This is therefore not a case of sexual assault as could be understood from the provisions of the POCSO Act since, this is not a case in which extreme depravity, perversity or cruelty was found present and as such the petitioner No.1/accused may not be subjected to face the rigors of law and to be penalised for the same for no fault of his taking into account that there is no ill-motive or mens rea on his part. 

The  counsel has also argued that the High Court as well as many High Courts while considering this issue has taken a lenient view of the situation. The case of Vijayalakshmi v. State rep. by the Inspector of Police, All Women Police Station, Erode, Crl.O.P. No. 232 of 2021, order dated 27.01.2021, para 11 and 18, and the case of Ranjit Rajbanshi v. State of Bengal & Ors; 2021 SCC Online Cal 2470, para 47 was cited by the  counsel for the petitioners in support of his case.  

While considering the matter the Bench held that in a case of rape or sexual assault, the act not only affects the physical well being of the victim but would also leave a very deep emotional scar which would require prolonged counselling for the experience and the image to be erased from the mind of the victim. Such an act would have a more profound effect on a child. Therefore, the makers of the law have thought it fit to bring out very stringent provisions in the Protection of Children from Sexual Offences (POCSO) Act to arrest and to deter any inclination in this regard by a perpetrator. What is even    prevalent now is, what is know as ‘good touch’ and ‘bad touch’ where even a semblance of sexual overtone in the way an alleged perpetrator touches a child victim will make him liable for prosecution under the relevant provisions of the law.

“The pitfall to the above proposition is that in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned, but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them”, observed the Court.

In view of the above findings and observations, the Court is of the considered opinion that it would be for ends of justice that the FIR  and the proceedings  under Section 5(l)/6 of the POCSO Act pending trial before the court of the  Special Judge (POCSO), Shillong be quashed.

The Allahabad High Court disposed of a petition observing that even a minor girl cannot be detained against her will or at the will of her father in a protective home.

A single-judge bench of Justice Suresh Kumar Gupta passed this order while hearing an Application under section 482 Cr.P.C filed by Abhay Pratap Mishra @ Ujjwal Mishra.

The petition has been filed for quashing the order dated 22.2.2022 passed by the Additional Session Judge/Special Judge (POCSO Act), District Sultanpur, in case crime under Sections 363, 366, 376 I.P.C and 5/6 of the POCSO Act, Police Station Kurebhar, District Sultanpur.

The facts of the case are that the FIR was lodged by the father of the victim against the applicant Abhay Pratap Mishra with the allegation that his daughter was kidnapped by Mishra and the FIR was lodged on 27.12.2021 under Sections 363, 366, 506 IPC.

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After recovery of the girl, the victim’s statement was recorded under Section 161 CrPC in which she said she voluntarily entered into the relationship with the applicant and both of them solemnized marriage in Devkali Mandir. In her statement recorded under Section 164 CrPC she supported the statement made under Section 161 CrPC.

An application was filed on 15.2.022 by the applicant to release the girl in favour of the applicant. The trial court, without knowing the wishes of the victim sent her to Nari Niketan, Ayodhya.

Being aggrieved ,the applicant has filed the petition that the trial court has passed the order without any basis and further submitted that as per medical report the age of the victim is 18 years.

The Court noted,

In support of his submission, the counsel for the applicant relied upon the judgment of the Apex Court passed in the case of Smt Parvati Devi Vs State of U.P reported in 1992 All Cri Cases 32 wherein it has been held that confinement of victim in Nari Niketan against her wishes cannot be authorized either under Section 97 or under Section 171 CrPC and the respondents failed to bring to the notice of the court any legal provision where under the Magistrate has been authorized to issue direction that a minor female shall against her wishes be kept in Nari Niketan.

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Identically in the case of Kalyani Chaudhary Vs State of U.P and others reported in 1978 Criminal Law Journal 103, a Division Bench of the Court held that no person can be kept in protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a Home. In such cases the question of minority rights is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home, the Court held.

“On the perusal of the impugned order, it is not clear that the girl was sent to the Nari Niketan on her wishes and it is also not clear that any application was moved by the father of the victim for taking custody. It is, therefore, directed the trial court to call the victim from the Nari Niketan for taking her wishes and pass an appropriate order for her custody in accordance with law keeping the wishes of the victim”

-the Court said while disposing the petition.

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The Allahabad High Court has allowed the bail Application of the accused kidnapping and rape case.

A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Misc Bail Application filed by Ashwini.

The application for bail has been filed by applicant Ashwini seeking his enlargement on bail in Case under Sections 363, 366, 376(2) N/376 (3) IPC and Sections 4 (2) 6 Protection of Children from Sexual Offences POCSO Act, P.S Anwala, District Bareilly, during pendency of trial.

The Court noted that,

It transpires from record that in respect of an incident, which is alleged to have occurred on June 28, 2021, a delayed F.I.R dated July 09, 2021 was lodged by first informant Ram Pal (father of the prosecutrix) and was registered as Case Crime under Sections 363, 366, 376(2) N/376 (3) IPC and Sections 4 (2) 6 Protection of Children from Sexual Offences POCSO Act,. In the aforesaid F.I.R, four persons Malo, Pramod, Manoj and Ashwini have been nominated as named accused.

According to the prosecution story, it is alleged that the above-mentioned named accused have enticed away the minor granddaughter of the first informant, aged about 14 years.

Subsequent to aforesaid F.I.R dated March 6, 2021 Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. Prosecutrix was recovered on August 11, 2021. Thereafter, the statement of prosecutrix was recorded under Section 161 CrPC, by the Investigating Officer. Prosecutrix in her aforesaid statement has not supported the prosecution story. The prosecutrix has stated that she herself accompanied the named accused Pramod. She thereafter accompanied Ashwaini and solemnized her marriage with the applicant. Thereafter, they have started residing together as wife and husband. Prosecutrix has further stated that she wants to reside with applicant Ashwaini and her age is about 20 years. Thereafter, the prosecutrix was medically examined.

In her statement before the Doctor, the prosecutrix has reiterated her earlier statement recorded under Section 161 CrPC. However, the Doctor, who examined the prosecutrix, did not find any physical injury on the person of the prosecutrix. However, certain samples were taken from the body of the prosecutrix for pathological examination. The pathological report is negative. Ultimately, the statement of prosecutrix was recorded under Section 164 CrPC. The prosecutrix in her aforesaid statement has reiterated her earlier statement recorded under Section 161 CrPC as well as her statement recorded before Doctor. Further, prosecutrix in her above statement has also stated that no fraud or coercion has been played by applicant. The Investigating Officer upon completion of investigation of aforementioned case crime number has submitted a charge sheet dated October 10, 2021 whereby two of the named accused including applicant have been charge-sheeted.

Counsel for applicant contends that applicant is named as well as charge sheet accused, but he is innocent. Allegations made in F.I.R are false and concocted. Applicant has been falsely implicated in the aforementioned case crime number. As such, the applicant is being falsely prosecuted in the aforementioned case crime number. It is then submitted that co-accused Malo Devi has been enlarged on bail, order dated March 4, 2022.

It is next contended that named and charge-sheeted accused Smt Malo Devi has already been enlarged on bail, vide order dated March 4, 2022. Similarly, another co-accused Pramod has been enlarged on bail order dated February 4, 2022.

On the aforesaid premise, counsel for applicant contends that the case of the applicant is similar and identical to aforesaid co-accused. As such, the applicant is also liable to be enlarged on bail on the ground of parity.

He further contends that there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny bail to the applicant. It is then contended that prosecution story as unfolded in F.I.R has not been supported by prosecutrix in her statements recorded under Section 161 and 164 CrPC. The medical evidence goes to show that no offence under any of the charging sections has been committed by the applicant upon prosecutrix.

He, therefore, contends that in view of above, no offence under any of the charging sections is made out against the applicant.

He further contends that prosecutrix in her statements recorded under Section 161/164 CrPC has categorically stated that no fraud or coercion has been played by applicant with prosecutrix. Referring to the provisions of Section 421 CrPC, counsel for applicant contends that the prosecutrix/ bride groom is below 18 years of age will not render the marriage void.

It is lastly contended that applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since August 14, 2021. As such, he has undergone more than 61/2 months of incarceration. In case, the applicant is enlarged on bail, he shall not misuse liberty of bail and shall cooperate with the trial. On the aforesaid factual and legal premise, it is thus urged that the applicant is also liable to be enlarged on bail.

Additional Government Advocate and Counsel for first informant have opposed the application for bail. However, AGA could not dispute the factual and legal submissions urged by counsel for the applicant.

“Having heard counsel for applicant, AGA for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicant has made out a case for bail”, the Court observed while allowing the bail application.

The Court ordered that,

Let the applicant Ashwini, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C, may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The trial court may make all possible efforts/endeavours and try to conclude the trial within a period of one year after the release of the applicant.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

The Allahabad High Court has asked the Uttar Pradesh DGP that why shouldn’t the investigation into a scam of Rs 5,000 crore in various schemes of Jaunpur be handed over to the Enforcement Directorate or Economic Offences Wing in the national interest.

The Division Bench of Justice Vivek Kumar Birla and Justice Shree Prakash Singh passed this order while hearing a petition filed by Baba Beti.

The counsel for the petitioner submitted that the petitioner is a whistle-blower and has highlighted a fraud/scam amounting to more than Rs 5,000 crore. It is submitted that petitioner is receiving constant threat from the persons interest/ involved in the fraud.

She further submitted that fraud involves transfer of money to safe havens outside the country and big fishes are involved in the fraud having their addresses/ living all over the country.

Ratan Singh, Additional Government Advocate, submitted that as per his instructions, investigation is still pending and petitioner is not appearing before the Investigating Officer for recording her statement under Section 161 CrPC.

Counsel for the petitioner pointed out that there is a threat to her life and she is not in a position to go to District Jaunpur particularly to the Investigating Officer as she is receiving constant threat from the persons interested/ involved in the fraud. For this purpose, he has drawn attention of the Court to the article on some website, which too has highlighted the fraud.

Drawing attention to the representation dated October 21, 2021, it is submitted that although petitioner has given representation to the Chief Secretary, Government of Uttar Pradesh as well as Director General of Police, Uttar Pradesh but till date nothing has been done to transfer the investigation.

The Court observed that the DGP, Lucknow, Uttar Pradesh be directed to consider the representation of the petitioner and for this purpose he shall also provide an opportunity of hearing to the petitioner in- person.

It is further made clear that full protection shall be granted to the petitioner so that no harm is caused to the petitioner while she approaches the Director General of Police, Lucknow, Uttar Pradesh, the court said.

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The Court directed the Additional Government Advocate to communicate and sent a copy of the petition as well as a copy of the order to the Principal Secretary (Home), Government of Uttar Pradesh as well as Chief Secretary, Government of Uttar Pradesh for necessary consideration.

For this purpose, petitioner is also allowed to file a fresh representation clearly disclosing her parentage, exact residential address, mobile number, details of her working place etc before the Director General of Police, Lucknow, Uttar Pradesh along with certified copy of the order, on which he shall fix date, time and place for giving personal hearing to the petitioner.

The representation shall be considered and decided by the Director General of Police, Uttar Pradesh strictly in accordance with law preferably within a period of four weeks’ from the date of filing of such representation before him.

In case, the Director General of Police, Lucknow, Uttar Pradesh finds that there is no necessity of transferring the investigation, he shall ensure that full security is given to the petitioner for appearing before the Investigating Officer.

The Court clarified that in case, the representation for transferring the investigation is rejected then the Director General of Police, Lucknow, Uttar Pradesh shall pass reasoned and speaking order as to why it is not appropriate to refer the matter to the Economic Offences Wing or to the Enforcement Directorate as from the nature of allegations and manner of transactions that have allegedly been conducted, the local investigation agency may not be well equipped to conduct the investigation.

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The Court further directed that even if needful is not done by the petitioner or she does not appear, in view of the allegations in the FIR, the Director General of Police, Lucknow, Uttar Pradesh shall look into the matter and pass appropriate orders in the national interest.

The State of Uttar Pradesh Through Principal Secretary (Home) Govt of Uttar Pradesh is also directed to look into all such aspects in the light of the allegations levelled in the first information report as well as in the petition.

“On the next date, Additional Government Advocate apart from the report/ decision of the Director General of Police, Lucknow, Uttar Pradesh, he shall also place on record the instructions from the State of Uttar Pradesh Through Principal Secretary (Home) Govt of Uttar Pradesh. In view of the allegations levelled in the FIR and the magnitude of the fraud in terms of money, this would certainly be a case where national interest would be involved.

Therefore, at this stage, without directing for impleadment of Union of India or the concerned Ministries which may include Home as well as Finance, we direct the counsel for the petitioner to serve a copy of the petition toAdditional Solicitor General of India for sending the same to the concerned authority/ Ministry through appropriate Secretary/ Authority for taking note of the same and file instructions of such authority on the next date fixed.

The concerned Ministry/ Authority shall be at liberty to seek impleadment in the petition or they may direct their impleadment if thought appropriate,” the order reads.

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The Court has fixed the next hearing of the petition on January 17.

The petition has been filed with following prayers:-

“(i) Issue a writ, order or direction, in the nature of mandamus directing the respondents and specifically the respondent No.- 3 & 4 to conduct the fair investigation in the present First Information Report No.-0115/2021 dated:-26.09.2021 U/s-120-b/ 420/ 467/ 468/ 471/ 474/ 476/ 506/ 507/ 511 of Indian Penal Code, PS-Zafrabad, Distt.-Jaunpur.

(ii) Issue a writ, order or direction, in the nature of mandamus directing the local police to stop the stalking and harassing the petitioner and pressurizing her to withdraw her complaint and forcing her to enter into a settlement with the accused scamsters.

(iii) Issue a writ, order or direction, in the nature of mandamus directing the respondents to ensure the protection of the fundamental rights of the petitioner to live a lawful life with dignity and liberty as guaranteed under Article-21 of the Constitution of India.

(iv) Issue any such other and further writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. 

(v) Award costs to the petitioner from the respondents.”