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Malik And Another 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. – 39511 of 2019

Applicant :- Malik And Another

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

Counsel for Applicant :- Mashaluddin Shah

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Learned counsel for the applicant seeks permission to delete the name of Smt. Sahar Bano (accused-applicant no. 2).

Prayer is allowed.

Let the amendment be carried out during the course of the day.

Heard Sri Mashaluddin Shah, 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 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 victim Sahar Bano who is daughter of opposite party no. 2 has married accused-applicant no. 1. Applicant has been falsely implicated. No such occurrence has taken place. These aspects have not been taken into consideration by the Investigating Officer and has submitted charge sheet in a routine manner, hence charge sheet needs to be quashed the same being malicious prosecution of the accused-applicant no. 1.

Learned A.G.A. has opposed the prayer of quashing stating that victim was found 17 years in her ossification test and report of C.M.O. is annexed at page 37, hence she was minor on the date of occurrence. In F.I.R., she is also mentioned to be minor, hence Investigating Officer has rightly filed charge sheet under Section 3/4 of POCSO Act as well as under Section 376 IPC 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. 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 by the opposite party no. 2 that on 15.2.2014 when opposite party no. 2 and his wife had gone Varanasi due to some important work and when he returned in the evening he found that his daughter was not at home. Search was made at all the places including of all the relatives but nothing could be known and apprehension was expressed that accused-applicant no. 1 had enticed her away who was working in a wrokshop. After investigation in this case, charge sheet has been submitted against the accused-applicant no. 1 and statements of as many as seven witnesses have been recorded. The statements of those witnesses cannot be disbelieved at this stage as the same would require trial. From the averments made in the F.I.R., it is apparent 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 no. 1. 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, trial court is directed to decide this case expeditiously preferably within a period of one year.

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

Order Date :- 5.11.2019

A.P. Pandey

 

 

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