IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Criminal Misc. Application (C482) No. 585 of 2004 1. Abdul Khalik S/o Abdul Waheed 2. Mahbood @ Bona S/o Late Lateef 3. Islam S/o Sadik Ali R/o village Bharapur Bhaunri P.S. Jwalapur, District Haridwar. ………………..Applicants Versus 1. State of Uttaranchal 2. Chief Judicial Magistrate Haridwar 3. Dhoom Singh S/o Fatta R/o village Bharapur Bhaunri P.S. Jwalapur, District Haridwar ………Opposite parties Shri Naveneet Kaushik, Advocate, present for the petitioners. Smt. Mamta Bisht, A.G.A., present for the State/respondent. Hon’ble Prafulla C. Pant, J. By means of this petition moved under section 482 of Code of Criminal Procedure 1973(for short Cr.P.C.) the petitioners have sought quashing of the proceedings of criminal case No. 4964 of 2004, State vs. Khalik & others, relating to offences punishable under section 363, 366A, 368, 376, 120B I.P.C, P.S. Jwalapur, pending in the court of Chief Judicial Magistrate, Haridwar. 2. Learned counsel for the petitioners submitted that a first information report is lodged by the respondent no. 3 Dhoom Singh against one Naseem (not petitioners) on 12.07.2002 i.e. five days after the incident, that his minor daughter Soshan(aged 17 years) was kidnapped. On the basis of said report crime no. 285 of 2002 was registered against Naseem only. After investigation the police submitted charge sheet in October, 2002, against three accused namely Naseem (named in first information report) Salim (brother of Naseem) and Rahsid ( father of Naseem) for their trial in respect of offences punishable under section 363, 366A, 368, 376, 120B I.P.C. Said case was registered as criminal case no. 1069 of 2002 (later renumbered as case no. 33 of 2004) in the court of Ist additional Chief Judicial Magistrate, Haridwar. Till then petitioners were nowhere in the picture. The said charge sheet filed against Naseem, Salim and Rashid (copy of which is Annexure-2 to the petition) shows that the girl had been recovered by then and her statement under section 164 of Cr.P.C. had been recorded. Suddenly, after four months of filing of said charge sheet in February 2003, another charge sheet was filed of same crime number against three other said persons namely Khalik @ Gama, Mahbood @ Bona and Islam (present petitioners) for their trial in respect of the above mentioned offences which is challenged before this Court. 3. Learned counsel for the petitioners argued that neither the petitioner are named in the first information report nor their names figured in the statement under section 161 Cr.P.C, of the girl after her recovery nor was there any mention in first charge sheet filed against Naseem and others that further investigation is on, as such their implication in the subsequent charge sheet without there being any additional evidence is liable to be quashed. 4. Learned counsel for the State drew attention of this Court to Annexure CA1 to the counter affidavit, which is said to be copy of the statement of the girl recorded under section 164 of Cr.P.C, and it is argued that petitioners are not named by the girl. I have gone through said Annexure CA1 to the counter affidavit, I did not find names Khalik or Mahboob in said statement. Of course name of Islam is mentioned but the prosecution failed to explain as to why if these petitioners are the one who were named by the victim, they were not named in the charge sheet filed against Naseem, and how the names of Salim and Rashid (said two names) are not mentioned anywhere in statement of the girl included in the charge sheet with Naseem. Annexure CA1 to the counter affidavit does not disclose as to when the statement was recorded. In para 5 of the counter affidavit filed by Mohd. Younis, Sub-Inspector, it is mentioned that the statement of the victim was recorded on 07.07.2002. Said averment in the counter affidavit is false on the face of it. The first information report discloses date of incident 07.07.2002. First information report itself was lodged on 12.07.2002. The girl must have been recovered thereafter. Annexure CA1 to the counter affidavit shows that girl was taken by the police on 06.08.2002, to her parents, which indicates that in august only the girl could be recovered. Her statement under section 164 of Cr.P.C, (copy of which is filed as A-CA1 to the counter affidavit) itself shows that victim met during the period she visited with Naseem, several places and met her brother Deshraj in Saharanpur. It is not clear as to why she did not disclose anything to her brother (Deshraj) about the incident. 5. On behalf of the statement of the girl Shosan was read out as recorded under section 161 of Cr.P.C, she has neither named petitioner no. 1 Khalik nor named petitioner no. 2 Bona nor the name of petitioner no. 3 Islam. In her statement she has only alleged that it was Naseem who took her and committed rape with her. 6. In the above circumstances since neither the petitioners are named in the first information report nor their names figure in the statement under section 161 of Cr.P.C, given to Investigating Officer by the victim, this Court finds that their implication in the present case four months after filing of the charge sheet against Naseem, without any additional evidence, is nothing but abuse of process of law. 7. Therefore, the petitioner under section 482 of Cr.P.C, is allowed the proceedings of criminal case no. 4964 of 2004, State vs. Khalik & others relating to offences punishable under section 363, 366A, 368, 376, 120B I.P.C, P.S. Jwalapur, pending in the court of Chief Judicial Magistrate, Haridwar, are hereby quashed. (Prafulla C. Pant, J.) Dt: 12.05.2010 parul