HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 36223 of 2019
Applicant :- Indrajit @ Sonam Singh
Opposite Party :- State Of Up And Anr
Counsel for Applicant :- Ajay Singh,Brij Raj Singh
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Brij Raj Singh learned counsel for the applicant, Sri Amit Kumar 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 15.12.2018 as well as cognizance order dated 05.04.2018 including further proceedings of Special Session Trial No.202 of 2019 (SectionState vs. Shubham Singh and others) arising out of Case Crime No.0039 of 2018 under Sectionsections 363, Section366, Section376D, Section120B, Section342 IPC and 3/4 POCSO Act, Police Station Pakdi, District Ballia pending in the court of Additional Sessions Judge-I, Ballia and also a prayer is made to stay the proceedings in this case till the disposal of this application.
Main argument of the learned counsel for the applicant is that the applicant is not concerned with the present offence. He has drawn the attention of the Court to page-88 of the paper book which is an application which was moved by the victim to SHO, Pakri, Ballia stating therein that the victim loves the main accused Subham Singh with whom she was going to marry and within a week she would get her marriage registered. Attention is also drawn to page 40 of the paper book which is stated to be an agreement between the main accused Subham Singh and victim in which witnesses are stated to be family members of the victim and it is prayed in the said agreement that the victim and the main accused Subham Singh would get their marriage registered. He has also drawn attention to ossification test of the victim in which age of the victim was found 18 years, hence he has argued that she was major at the time of marriage with the main accused. He has prayed that the proceeding needs to be quashed as the Investigating Officer has ignored these important piece of evidence.
Learned A.G.A. has vehemently opposed the prayer for quashing the charge-sheet and has brought to the notice of the Court that in the order of the lower court dated 25.07.2007 which is annexed at pages 28-31 of the paper book, it is clearly mentioned that in the High School certificate the date of birth of the victim is recorded as 15.09.2001 while occurrence took place on 29.05.2018 in this case, hence the victim was below 18 years of age on the date of occurrence, hence she is a child. As regards the present case, it is further argued that it is admitted to the learned counsel for the applicant that victim was less than 18 years as according to the educational record, she was minor on the date of occurrence. The age of the victim is required to be determined in accordance with the provision of Section 94 of The Juvenile Justice (Care and SectionProtection of Children) Act, 2015 as has been held in Crl. Misc. Writ Petition No. 20816 of 2016, Nisha Naaz alias Anuradha and Another Vs. State of U.P. 2 others decided on 6.02.2019 in which decision of Suhani Vs. State of U.P., 2018 SCC Online SC 781 has been distinguished and the finding of Hon’ble Apex Court in Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263 has been followed which provides that victim’s age shall also be decided following the same provision as are followed for determining the age of a juvenile which provides as follows:-
?94. Presumption and determination of age- (1)Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Sectionsection 14 or Sectionsection 36, as the case may be, without waiting for further confirmation of the age.
2.In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining ?
i.the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
ii.the birth certificate given by a corporation or a municipal authority or a panchayat;
iii.and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3.The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.?
Hence it cannot be denied that the offence under Sectionsection 376 IPC and 3/4 POCSO Act in this case would be made out.
I have gone through the FIR. In it the opposite party no. 2 has mentioned that his sister/victim who was studying in class XII had gone to college on 29.05.2018 at 10.00 A.M. to collect her result but she did not return. The opposite party no. 2 has made all efforts to search her when nothing could be known, a missing report was lodged at the police station concerned on 06.06.2018. On 30.06.2018 victim returned home in depressed and fearful condition and stated that on 29.5.2018 when she was returning from college, one Neeraj of the same village told him that he was going to village, thereafter the victim also sat in Bolero vehicle. In the said vehicle the accused-applicant was already sitting and soon thereafter the applicant put handkerchief on the nose of the victim by which she fainted and after sometime she found herself confined in a room where Subham @ Chikki was also present, who told her that Neeraj and Indrajeet Singh had sold her and thereafter Subham @ Chikki committed rape upon her many time and video clipping was also made and it was threatened that if she tells about this occurrence to anyone, the same would placed on social media. Thereafter, she was taken to Bihar where she was kept in a room and thereafter she was taken to his Ballia where his sister Manisha, Malti Devi, Neeraj together with accused applicant Indrajeet put pressure on her to marry co-accused Subham Singh. Thereafter, she was taken to temple and forcibly Sindoor was placed on her head. Subham Singh co-accused continued to rape her. FIR has been lodged against the applicant and other co-accused through an application u/s 156 (3) Cr.P.C.
After investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as six witnesses which cannot be disbelieved in proceedings u/s 482 SectionCr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.
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.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”
The prayer for quashing the proceedings of the aforesaid case 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.
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 aforesaid direction, this application is finally disposed of.
Order Date :- 27.9.2019