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Jainul vs State Of U.P. And Another on 5 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 38409 of 2019

Applicant :- Jainul

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

Counsel for Applicant :- Sanjay Singh

Counsel for Opposite Party :- G.A.,Mohammad Saleheen Ansari

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Sanjay Singh, learned counsel for the applicant and Sri Md. Mohammad Saleheen Ansari, learned counsel for the opposite party no. 2 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 proceeding of Charge Sheet dated 30.4.2019 in Special Case No. 343 of 2019 in Case Crime No. 740 of 2018, under Section 363, Section366, Section376 IPC Section 3/4 POCSO Act, P.S. Swar, District Rampur.

It has been argued by the learned counsel for the applicant that accused-applicant is son-in-law of the opposite party no. 2. The applicant has been falsely implicated in the present case. In ossification test, age of the victim is found to be 20 years of old, report of which is annexed at page 24 of the paper book. He has drawn attention to the statement of the victim recorded under Section 164 Cr.P.C. at page 23 of the paper book, in which, she has stated that on 23.10.2018, she had gone to Mumbai alone where she was with accused applicant who is distant relative. Both of them live with each other and their family members were not giving consent for marriage, therefore, she has married the accused-applicant of her own free will and wants to live with her husband. It is further argued that compromise has taken place between the parties, therefore, criminal prosecution of the present accused should be closed. All these aspects have not been taken into consideration by the Investigating Officer and has submitted charge sheet in a routine manner. This is nothing but an abuse of process of court and the charge sheet needs to be quashed it being malicious prosecution.

Learned A.G.A. has vehemently opposed the prayer of quashing and has drawn attention to the contents of the F.I.R., in which it is mentioned that the victim is reported to be of 17 years in the F.I.R. and hence a minor, therefore, it is argued that offence under Section 3/4 POCSO Act as well as 376 SectionIPC would be made out in view of law 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. 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.”

Learned counsel for the opposite party no. 2 has also appeared and stated that both the parties have admitted that the victim has studied in some school but the education certificate has not been annexed by them.

As regards the present case, it may be mentioned here 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.”

Since, Investigating Officer has found victim to be minor, it would be decided by the trial court only as to whether on the date of occurrence she was minor or not. This Court cannot look into the evidence with respect to the age of the victim, in proceedings u/s 482 Cr.P.C.

I have gone through the F.I.R.. It is recorded in it by the opposite party no. 2 that the accused is his son-in-law who had come to his house on 23.1.2018 along with his brother-in-law at 12:00 pm and had enticed away his minor daughter/victim. The investigating Officer after having investigated the case has submitted charge sheet against the accused-applicant after having recorded as many as seven witnesses. It is apparent that the victim being a minor could not have given consent to marry accused-applicant and, therefore, it cannot be denied that congnizable offence is made out.

Moreover, it would be pertinent to mention here that in view of law laid down by the Supreme Court in Gian Singh Vs. State of Punjab and another, 2012 (10) SCC 303 and some other cases of the Apex Court, no compromise can be allowed in cases under Section 376 IPC which falls in the category of heinous offences, hence quashing of the charge sheet is refused.

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.

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 the aforesaid directions, this application is finally disposed of.

Order Date :- 5.11.2019

A.P. Pandey

 

 

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