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Azizur Rahman vs State Of U.P. And Another on 12 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 33092 of 2019

Applicant :- Azizur Rahman

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Shahroze Khan

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Shahroze Khan, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet dated 25.04.2019 filed in Criminal Case No.44 of 2019 under Sectionsections 376 IPC and section 3/4 of Protectionof children from Sexual Offences Act arising out of Case Crime No. 77 of 2019 (SectionState vs. Azizur Rahman), Police Station Bansi, District Siddharth Nagar pending in the Court of Additional District and Sessions Judge, Siddharth Nagar and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that the daughter of opposite party no.2 is a married wife of accused applicant. In order to prove that they were married, attention was drawn to pages 65 to 67 of the paper book which contains the petition filed in Family Court of Siddharth Nagar by the daughter of opposite party no. 2 under Sectionsection 125 Cr.P.C. for maintenance, in which she has stated herself to be wife of the accused-applicant. Further, it is argued that in the said proceedings, compromise was filed by the parties which is at page-76 which also indicates that they were married to each other. In the medical examination report which is annexed at page-41, the medical board has found the victim to be 17 years of age and if two years are added, she should be treated to be major. Attention is also drawn to page-37 of the paper book which is medical examination report in which it is stated that the victim herself has stated that her husband used to commit rape upon her every day. Drawing attention of the aforesaid facts, it is argued that five days after filing of compromise, a false case has been registered against the accused-applicant by the mother of the victim. The police has submitted charge-sheet without making proper investigation in this case which is nothing but a malicious one which needs to be quashed.

Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet and has stated that the provisions of POCSO Act are applicable in the present case because the victim is found below 18 years of age by the Investigating Officer. Attention is also drawn to the judgment of Apex Court rendered in SectionIndependent Thought vs. Union of India and another, (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are as under:

“1.The issue before us is a limited but one of considerable public importance ? whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Penal Code, 1860 (SectionIPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in SectionIPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of SectionArticle 15(3) of the Constitution as well as contrary to SectionArticle 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.”

“107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is ? this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC ? in the present case W.P. (C) No. 382 of 2013 Page 68 this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years ? this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC ? this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.”

By the above judgment, it is clear that under POCSO Act there is no description between married and unmarried child, if child is aged about 18 years, same would be treated to be a minor. In the present case the daughter of opposite party no. 2 had married to the applicant that would not take away the fact that she was child below 18 years, hence charge-sheet has been submitted under the afore-mentioned sections.

I have gone through the FIR. It is mentioned in the FIR that the husband of opposite party no. 2 had died and that the opposite party no. 2 was taking care of her children and of her own self. On 13.05.2018 at about 11.00 A.M. when the opposite party no. 2 was not at home and her daughter/victim who is aged about 14 years was alone in the house, the accused-applicant entered into the house and committed rape upon her. Incidentally, the opposite party no. 2 returned home and she saw the said occurrence being committed and other witnesses which are named had also come there and the accused-applicant was caught red handed on the spot. Thereafter, the uncle of the accused-applicant got him freed and told the opposite party no. 2 to remain silent, failing which her daughter would be gang raped.

The police after having investigated the case and after recording the statements of as many as 12 witnesses, has submitted charge-sheet. The veracity of the said witnesses cannot be tested in proceedings u/s 482 SectionCr.P.C. Further, it would be pertinent to mention here that the age of the victim will have to be determined by the trial court under section 94 of the Juvenile Justice Board and if the victim is found to be minor, offence under section 3/4 POCSO Act could be stand proved.

From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 SectionCr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of SectionR. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

The prayer for quashing the proceedings of the aforesaid case is refused.

However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 30 days subject to compliance of provision of section 209 Cr.P/C. to facilitate the trial court to hear and dispose of discharge application.

The applicant may appear before committal court within 30 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal court, the said court shall take coercive steps to procure his attendance.

With aforesaid direction, this application is finally disposed of.

Order Date :- 12.9.2019

AU

 

 

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