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Manu Sharma vs State Of U.P. And Another on 4 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 77

Case :- APPLICATION U/S 482 No. – 25371 of 2017

Applicant :- Manu Sharma

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

Counsel for Applicant :- Vivek Sharma,Piyush Dubey

Counsel for Opposite Party :- G.A.,Ajay Kumar Goyal,Ardhendu Shekhar Sharma,Bharat Garg,Dharmendra Singhal,Ram Babu Sharma

Hon’ble Ram Krishna Gautam,J.

1. This application under Section 482 Cr.P.C. has been filed by Manu Sharma with a prayer for quashing the charge sheet dated 14.02.2017 as well as entire proceeding of Criminal Case No. 195 of 2017 (State Vs. Manu Sharma), arising out of Case Crime No. 204 of 2017, under Section 376 I.P.C. Section 3/4 POCSO Act, P.S. Majhaula, District Moradabad, pending in the Court of Additional District Judge, Court No. 12 / POCSO Act, Moradabad.

2. Heard Sri Rakesh Pandey, Senior Advocate, assisted by Sri Vivek Sharma and Sri Piyush Dubey, learned counsel for applicant, Sri Ajay Kumar Goyal and Sri Ram Babu Sharma, learned counsel for opposite party no. 2 and learned A.G.A. for State.

3. Learned counsel for applicant argued that it was a case of consensual physical relation, wherein prosecutrix was major. She was not examined for medical age determination because her certificate of High School regarding date of birth was with I.O. and as per above certificate her date of birth was 09.03.1999. It was mentioned in report at page no. 60. The occurrence of rape was said to be of November, 2016. It came to notice of the parents of prosecutrix when she was under pain in her abdomen and she was examined under ultrasound scanning, wherein she was held to be pregnant for three and half months. Report was not got lodged at that moment. Rather as per statement of complainant and his wife an attempt was made for getting marriage solemnized in between prosecutrix and applicant, which was said to be refused by applicant’s parents. Thereafter, this case crime number was got registered. In ultrasound examination report, age has been said to be 19 years by prosecutrix and this document has been filed by prosecution side itself. Hence, it was a case of age running in between one and two months either way as to whether minor or major, but as per record of prosecution itself, it was a case of major because prosecutrix in her statement exchanged through hike messenger, in part of this document has said to be of year 1998, but date of birth written in school record was of 09.03.1999. On this score too she was major. It was a case of consensual physical relation wherein prosecutrix is still in conversation with applicant and he is still ready to marry with her, but her parents got this false case lodged and under defective investigation, charge sheet was filed, whereas applicant is innocent. It was misuse of process of law. Hence, this proceeding under Section 482 Cr.P.C. with above prayer for quashing charge sheet as well as entire proceeding of above case.

4. Learned counsel for informant as well as learned A.G.A. has vehemently opposed the aforesaid prayer with this contention that from the very perusal of first information report, it is apparent that applicant was a tutor, who used to give tuition and prosecutrix was victim of rape by her own tutor, who under threat established physical relation in year 2014, when she was student of Class XI, and under above threat and misuse of age of adolescence, after getting obscene photographs, she was persistently raped by him for two years. This could not be disclosed to parents by victim, but when there occurred conception and upon complaint of pain in abdomen she was medically treated, wherein ultrasound scanning was made, it was found to be a case of pregnancy. Then, under the social pressure for saving prestige and repute of family as well as of unmarried daughter an attempt was made for getting marriage performed in between, but it was refused. Thereafter, this report for offence of rape with a minor was got lodged, wherein investigation resulted submission of charge sheet and Magistrate has taken cognizance over it.

5. This Court as well as Apex Court has repeatedly held the extent of jurisdiction of High Court under Section 482 Cr.P.C. while exercising inherent power as above. The factual evidence is not to be analyzed by this Court under Section 482 Cr.P.C. nor the defence version is to be seen because the same is a question before trial court and during course of trial only prima facie evidence at the time of summoning is to be seen and it was very well there in statement recorded under Sections 161 and 164 Cr.P.C. against applicant coupled with statement of other witnesses recorded under Section 161 Cr.P.C. during course of investigation. Charge sheet was submitted and cognizance over it was taken, hence the proceeding may not be set aside in exercise of this jurisdiction. Apex Court in recently pronounced judgment in Criminal Appeal No.594 of 2019, arising out of SLP (Crl.) No. 8103 of 2018; Rashmi Chopra Versus State of Uttar Pradesh Anr. along with other connected appeals has propounded that High Court of Judicature at Allahabad may not quash criminal proceeding under exercise of inherent power under Section 482 Cr.P.C. where offences claimed are of Chapter 16 of Indian Penal Code i.e. offence against human body and prosecutrix or victim has said statement regarding it on the basis of which charge sheet or complaint has been filed and cognizance has been taken. The same is the law propounded by Apex Court in Criminal Appeal Nos. 285-287 of 2015, arising out of S.L.P. (Crl.) Nos. 300-302 of 2013; Sonu Gupta Versus Deepak Gupta Ors.. Hence, this application be dismissed.

6. Having heard learned counsel for both sides and gone through material placed on record, it is apparent that first information report was got lodged against Manu Sharma, his father Chavendra Sharma and his sister Puja Sharma on 04.02.2017 at 13 PM as Case Crime No. 204 of 2017, under Sections 376, 506, 120-B I.P.C. and Section 3/4 POCSO Act at Police Station Majhaula, District Moradabad upon report of Sri Pradeep Agrawal with this contention that informant’s daughter-prosecutrix, aged about 17 years, having date of birth 09.03.1999 was getting tuition from Manu Sharma, S/o Chavendra Sharma, who was residing as a tenant in the house of Dinesh Gupta, S/o Nand Kishore Gupta, Indra Awas Colony, C.L. Gupta Baag Shri Sai Hospital, Delhi Road, Moradabad. She was taking tuition since 2014. Manu Sharma under inducement asked her to have separate session, wherein he committed rape in his drawing room while prosecutrix was 15 years of age. He got obscene photographs of same captured in cell phone and under threat of same being disclosed and viral, he continued this persistent rape for two years. Victim became ill in the year 2016. Then, she narrated the occurrence to her parents. When they requested Chavendra Sharma, who was Constable in Police posted at Dial-100 at Rampur for getting prestige retained inside house by getting marriage of them solemnized, he extended threat and refused for it. This rape was being committed with prosecutrix under knowledge of her sister Puja and father Chavendra Sharma, when this report was got lodged. Meaning thereby, prosecutrix date of birth was 09.03.1999 in High School Certificate and she was subjected to rape by her tutor in the year 2014 i.e. she was 15 years of age. No question of any consent or consensual physical relation arises. This was said by her in her statement recorded under Section 161 Cr.P.C. as well as 164 Cr.P.C., wherein there is full corroboration of accusation. On the basis of these evidence, charge sheet was submitted. There is statement of Chavendra Sharma, recorded under Section 161 Cr.P.C., wherein he has categorically said that prosecutrix was minor, hence he refused for her marriage with his son in the year 2016. Meaning thereby, in the year 2016, when request was made for marriage performed in between, prosecutrix was minor. It was under knowledge of Chavendra Sharma, who refused for marriage, hence it can never be said that physical relation was under consensual situation.

7. The very purpose of Legislature for legislating a special Act of Protection of Children from Sexual Offences Act, 2012 i.e. Act No. 32 of 2012 has been given in Act itself that “An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.” Clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children. Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child……..Meaning thereby, article 15 of the Constitution of India confers upon the State powers to make special provision for children. Further article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. Hence, to protect a children from offences of sexual assault, the target for getting the covenant implemented and mandate of situation fulfilled, children has been defined in case of girl it is below 18 years.

8. In present case, prosecutrix was subjected to rape by her Tutor with whom she was under belief and faith that he will teach her, but she was subjected to rape while she was under adolescence age of 15 years. Obscene photographs were got captured and under threat of same this tutor exploited her for two years and this is but natural that a father for protecting his repute in society and establishing her unmarried daughter for securing her future to make a request with parents of that person, who had committed rape, for getting marriage solemnized and this untoward thing be kept intact inside family, hence prestige and repute may be saved for other off springs, but this police personnel refused it and ultimately there remained nothing except to get this case lodged. Accordingly, this application merits its dismissal.

9. The application is dismissed accordingly.

10. Interim order, if any, stands vacated.

Order Date :- 4.12.2019

NS

 

 

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