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Karanjeet Rathore @ Karamjeet … 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. – 39514 of 2019

Applicant :- Karanjeet Rathore @ Karamjeet Sethi

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

Counsel for Applicant :- Hriday Kumar Singh

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Hriday Kumar 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 impugned charge sheet dated 6.5.2014 as well as the entire proceedings of Case Crime No. 85 of 2014, under Section 363, Section366, Section376 IPC and Section 3/4 POCSO Act, P.S. Machhalishahar, District Jaunpur.

It has been argued by the learned counsel for the applicant that daughter of opposite party no. 2 has married the accused-applicant and has children born out of the said wedlock. The said aspects have not been taken into consideration by the investigating officer and has filed charge sheet in a routine manner, which is abuse of process of court, hence the charge sheet needs to be quashed.

Learned A.G.A. has opposed the prayer of quashing and has drawn attention of the court to page 55 of the paper book, on which High-school Mark-sheet has been annexed, in which, age of the victim is recorded as 15.7.2000, hence on the date of occurrence her age is found to be 17 years 7 months and 21 days, hence she is minor, therefore, offence under Section 3/4 POCSO Act as well as Section 376 IPC would be made out in view of the law laid down by Hon’ble Apex Court 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 whether she is married or unmarried, she would be treated to be child. If any intercourse is made with such child, the same would be fall in the category of rape. 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 by opposite party no. 2 that his daughter aged about 17 years had gone on 6.2.2018 at about 6 am for appearing in examination. She was enticed away by Anees @ Olanga. After lodging of the F.I.R., investigation was made in this case. After having recorded statements of as many as 12 witnesses, charge sheet has been submitted against the accused-applicant. Statements of the said witnesses cannot be scrutinized in proceedings u/s 482 SectionCr.P.C.. In statements u/s 164 SectionCr.P.C., victim has not supported the prosecution version and has stated that she used to be harassed by her parents at home that is why without telling anyone she went to Allahabad, where she met accused applicant Karan Jeet Rathore, with whom she wants to live. She has also married accused-applicant in a temple and are living as husband and wife. Victim is less than 18 years of age, hence her consent for marriage could not held to be a free consent, therefore, it cannot be denied that cognizable offence is made out against the accused-applicant at this stage.

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 within 30 days, 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. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear, the court concerned shall take coercive steps to procure their attendance.

With the above direction, application u/s 482 Cr.P.C. is disposed of.

Order Date :- 5.11.2019

A.P. Pandey

 

 

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