# Hari Shankar v. State of U.P - **Citation:** (2009) 2 ILRA 500 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-05-13 - **Case number:** Criminal Misc. Bail Application No.7444 of 2008 - **Bench:** Vijay Kumar Verma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shankar-v-state-of-u-p-41644 - **Pages:** 2 ## Headnote Code of Criminal Procedure-Section 156 (3)-Rejection of application by magistrate-with observation the dispute appear to be civil nature to approach before police for action under Section 107/116-without considering this aspect whether cognizable offence is made out or not?-held-illegal-although the Magistrate's power discretionary one-but has to be exercised in judicial and not arbitrary manner-considering groving tendency of 156 (3) Application Court expressed its great concern-to find out the way certain guidelines issued to check up the arbitrariness of Police-incharge to face disciplinary proceeding if refused to lodged FIR and cognizable offence found to be made out by the Magistrate. Held: Para 32 ## Text 500 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 9. In view of above, the petition under section 482 Cr.P.C. Is partly dismissed and partly allowed. Learned Magistrate is directed to adopt procedure of complaint for the trial. The cognizance taken by him is not erroneous. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.05.2009 BEFORE THE HON'BLE VIJAY KUMAR VERMA, J. Criminal Misc. Bail Application No.7444 of 2008 Hari Shankar ...Applicant Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri V.S. Parmar Counsel for the Opposite Party: Sri Dinesh Kumar Gupta A.G.A. Code of Criminal Procedure -Section439-Bail Application-offence under section 363/366/376/506 IPC readwith 3 (I) (XII) SC/ST Act-gang rape by different person on different timeheinous anti social crime-selling by one person to other-does not deserve for bail-rejected Held: Para 6 I have carefully gone through the statement of the prosecutrix recorded under section 164 Cr. P.C. although the prosecutrix did not support the case of the prosecution in her statement recorded under section 161 Cr. P.C., but when her statement was recorded before the Magistrate under section 164 Cr. P.C. She has fully supported the case of the prosecution. Therefore, without expressing any opinion on merit of the case, in this heinous anti social crime of gang rape and selling the prosecutrix from one person to other person, the applicant does not deserve bail. (Delivered by Hon'ble Vijay Kumar Verma, J.) 1. Heard Sri V.S. Parmar, Advocate appearing for the applicant, Sri Dinesh Kumar Gupta, learned counsel for the complainant and AGA for the State and also perused the record. 2. An FIR was lodged on 27.06.2007 by the complainant Chottey Lal @ Babloo at P.S. Khanna District Hamirpur, where a case under section 363,366,376,506 IPC and section 3 (1)(XII) SC/ST Act was registered against Parasram, Pankaj, Dilip, Ram Kishore, Dhiru @ Dhiraj and Harishankar. 3. The allegations made in the FIR in brief, are that on 01.02.2007 at about 4.00 p.m. The prosecutriz (name not disclosed as per the direction of the Hon'ble Apex Court), daughter of the complainant, was going to Khanna market for purchasing goods. She was caught by the accused Parasram, Pankaj, Dilip, Ram Kishore and one other person and they all committed rape on her after keeping her in the house of Prem Narayan @ Lal Vishwakarma. Thereafter, she was sold to Hari Shankar Vishwakarma (applicant herein), who also committed rape with her. After that she was sold to Banda Vishwakarma, aged about 65 years from where she was recovered by the police. 4. It is submitted by the learned counsel for the applicant that in her statement recorded under section 161 Cr. P.C., prosecutrix did not support the case of the prosecution and from the statement, it transpires that she was consenting party 2 All] Hari Shankar V. State of U.P. 501 and had married with the applicant Hari Shankar Vishkarma. Next submission is that the statement of prosecuttrix was recorded before SDM and in that statement also, she has not supported the case of the prosecution. Regarding the statement recorded under section 164 Cr.P.C. of the prosecutrix, it is submitted by learned counsel that from that statement also, it appears that the prosecutrix was consenting party in living with the applicant. It is further submitted that other witnesses have not supported the case of the prosecution 5. AGA and learned counsel for the complainant have opposed the bail application stating that prosecutrix has fully supported the case of the Cr.P.C. and hence, in this heinous crime of gang rape, applicant should not be granted bail. 6. I have carefully gone through the statement of the prosecutrix recorded under section 164 Cr. P.C. although the prosecutrix did not support the case of the prosecution in her statement recorded under section 161 Cr. P.C., but when her statement was recorded before the Magistrate under section 164 Cr. P.C. She has fully supported the case of the prosecution. Therefore, without expressing any opinion on merit of the case, in this heinous anti social crime of gang rape and selling the prosecutrix from one person to other person, the applicant does not deserve bail. 7. Consequently, the bail application of the applicant Hari Shankar is hereby rejected. 8. The trial court is directed to conclude the trial of the applicant within a period of six months applying the provisions of section 309 Cr.P.C. and avoiding unnecessary adjournment. 9. Office is directed to send a copy of this order within a week to the trial court concerned for necessary action. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 08.06.2009 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Criminal Revision No. 2308 of 2009 Roop Ram ...Revisionist Versus State of U.P. ...Opposite Parties Counsel for the Revisionist: Sri Jai Shanker Audichya Counsel for the Opposite Parties: A.G.A. Code of Criminal Procedure-Section 156 (3)-Rejection of application by magistrate-with observation the dispute appear to be civil nature to approach before police for action under Section 107/116-without considering this aspect whether cognizable offence is made out or not?-held-illegal-although the Magistrate's power discretionary one-but has to be exercised in judicial and not arbitrary manner-considering groving tendency of 156 (3) Application Court expressed its great concern-to find out the way certain guidelines issued to check up the arbitrariness of Police-incharge to face disciplinary proceeding if refused to lodged FIR and cognizable offence found to be made out by the Magistrate. Held: Para 32