HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 38130 of 2019

Applicant :- Hafij Ansari @ Chhotey

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sudarshan Singh

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Sudarshan Singh, 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 entire proceedings of crime no. 33 of 2018, under Section 363, Section366, Section376 IPC and 3/4 POCSO Act, PS. Kubersthan, District Kushi Nagar.

It has been argued by the learned counsel for the applicant that victim, who is daughter of the opposite party no. 2, has married accused-applicant and has child of six months born out of the wedlock. This aspect has not been taken into consideration by the Investigating Officer and has submitted charge sheet in this case in a routine manner which is nothing but an abuse of process and prosecution needs to be quashed.

On the other hand, learned A.G.A. has drawn attention of the court to the statement of the victim under Section 164 Cr.P.C., in which, she has stated that she had fled from her house of her own free will and has married accused-applicant and she is pregnant of six months. In ossification test, her age is found to be 17 years and 16 years as per F.I.R., therefore, she was minor on the date of occurrence and was not competent to give consent for marriage, hence offence under Section 3/4 of POCSO Act as well as under Section 376 IPC would be made out in view of judgment of Apex Court rendered in SectionIndependent Thought vs. Union of India and another, (2017) 10 SCC 800, in which it is held that if a child is below 18 years, she would be treated to be child irrespective of the fact whether she is married or unmarried. If any intercourse is made with such child, the same would be fall in the category of rape, hence quashing should be refused. The 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.”

I have gone through the F.I.R.. It is recorded in it that minor daughter of opposite party no. 2 was enticed away by the applicant and in this occurrence, the applicant, his mother, sister and Bhabhi were also involved and when she left the house she had also taken away Rs. 10,000/- in cash and some jewellery.

Investigating Officer has recorded statement of as many as 14 witnesses during investigation and has submitted charge sheet against the accused applicant under the above mentioned sections. Statements of these witnesses cannot be disbelieved in proceedings u/s 482 Cr,P.C. as the same would require trial. Statement of the victim recorded under Section 164 Cr.P.C. to the effect that she had gone of her own free will would not have significance because she was minor and she could not give consent for marriage. In view of above facts, it cannot be denied that cognizable offence is made out.

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 :- 7.11.2019

A.P. Pandey