HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 38802 of 2019
Applicant :- Bablu
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Subodh Pandey
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Subodh Pandey, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the charge sheet dated 28.2.2019 registered as S.T. No. 343 of 2019 arising out of Case Crime No. 13 of 2019, under Section 363, Section366, Section376 IPC and 3/4 POCSO Act, P.S. Nagphani, District Moradabad.
It has been argued by the learned counsel for the applicant that accused-applicant has been falsely implicated by the opposite party no. 2, who is mother of the victim. He has drawn attention to the statement of the victim under Section 161 Cr.P.C. and 164 SectionCr.P.C. at page 24 of the paper book. In her statement u/s 161 SectionCr.P.C., she has stated that she had a talk with accused on phone and accused had told her to come to the station from where they would go to Delhi. At this, she left her house on the pretext of some work but she does not know as to where she went as she was feeling dizzy. In statement u/s 164 SectionCr.P.C., she has stated that accused had called her on phone, whereafter she had gone to meet him at Moradabad Station. She knew the accused from before but he did not come to the station and she had to stay whole night at the station. No one had taken her from her house nor any wrong has happened with her. She remained at the station whole night because of fear and returned in the morning and told all the facts and now she wants to go with her parents.
After having pointed out these statements, it was argued that offence under Section 363, Section366 and Section376 IPC as well as u/s 3/4 POCSO Act would not be made out against the accused-applicant because nowhere victim has stated that she was kidnapped from the custody of her parents, rather she had gone of her own free will. The offence u/s 366 SectionIPC would also be not constituted because she was neither abducted nor induced by the applicant with a view to compelling her to marry him as she has clearly stated that nothing wrong has happened with her. It is further argued that victim is 17 years old girl, as per the medical examination report, which is annexed at page 27 of the paper book. The applicant and the victim were only friends and no internal injury has been found to have been caused to the victim in her medical examination report and no sign of sexual assault has been found. These aspects have not been taken into consideration by the Investigating Officer and the charge sheet has been submitted in a routine manner which is nothing but abuse of process of court and the prosecution needs to be quashed the same being malicious one.
On the other hand, learned A.G.A. has vehemently opposed the prayer of quashing and has filed counter affidavit, wherein at page 7 attention is drawn to the clause (F) of the case diary details, in which, several questions were put to victim, in which, she has stated that she had called accused to station on mobile phone but the accused did not come and she had to stay at the station itself. With respect to questions put to her, as to whether physical relationship was established between them, she stated that she was taken to a room belonging to his Tai and there relations were established.
Pointing out the said statements that there relations were established, it was argued by the learned A.G.A. that the said statement/evidence against the applicant shows that there was physical relationship established between accused and victim, on the basis of which the Investigating Officer has submitted charge sheet under the above mentioned sections, the victim being less than 18 years of age, in view of law laid down by Hon’ble Supreme Court in the case of SectionIndependent Thought vs. Union of India and another, (2017) 10 SCC 800, in which it is held that if the victim is below 18 years of age she would be treated to be child. Relevant paragraph of the said judgment is as follows:-
“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.”
In the present case, she being a child and she having stated before I.O. that physical relations were established by the accused at the house of his Tai, would constitute offence under Section 3/4 POCSO Act as well as under Section 376 IPC, hence at this stage charge sheet cannot be quashed as evidence in this regard cannot be scrutinized, which has been collected by I.O. during investigation as it is apparent that during investigation, Investigating Officer has recorded statements of as many as eight witnesses. Statements of those witnesses cannot be disbelieved at this stage, as the same would require trial.
I have gone through the F.I.R.. It is recorded in it by the opposite party no. 2, i.e. mother of the victim, that on 14.1.2019, in her absence, her daughter/victim aged about 15 years was enticed away by the accused-applicant. On the basis of the said F.I.R., case crime no. 13 of 2019 was registered at P.S. Nagphani, under Section 363 and Section366 IPC and subsequently after investigation, investigating officer has found the offence under the above mentioned sections to be made out on the basis of statements of the witnesses. The veracity of the said statements cannot be tested in proceedings under Section 482 Cr.P.C. as the same would require
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, 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 is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the above direction, application u/s 482 Cr.P.C. is disposed of.
Order Date :- 5.11.2019