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Nikhil Sarathe vs The State Of Madhya Pradesh on 28 August, 2018

1 M.Cr.C.No.16856 of 2017

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Single Bench : Hon’ble Shri Rajeev Kumar Dubey, J.

Misc. Criminal Case No.16856/2017
Nikhil Sarathe
vs.
State of M.P. and Others
——————————————————————————————–

Shri Alok Bagrecha and Shri Pushpendra Dubey, learned counsel for the
applicant.
Shri Manish Awasthi, Govt. Advocate for the respondent/State.
Shri Vivek Agrawal, learned counsel for the respondent no.2/prosecutrix.
None for the respondent No.3/complainant though served.

——————————————————————————————–

ORDER

Reserved on : 21/08/2018
Delivered on : /08/2018

This petition has been filed under Section 482 of Cr.P.C. seeking
quashing of the F.I.R. of crime No.293/2016 registered at PS Kotwali
Bhopal for the offence punishable under Sections 363, 376, 120-B, 212 of
IPC and Section 3, 4 of POCSO Act and consequential proceedings thereto.

Brief facts of the case are that on 29/12/2016, the father of the
prosecutrix lodged a report at P.S. Kotwali Bhopal averring that his daughter
(prosecutrix) age about 17 years was not at home since six ‘o’clock in the
morning and she was not found even after enough search. Someone had
abducted her. On that police registered crime No. 293/16 for the offence
punishable under section 363 of I.P.C. and investigated the matter and during
investigation on 23/01/17 police rescued the prosecutrix from the custody of
applicant and recorded the statement of the prosecutrix. In her statement
2 M.Cr.C.No.16856 of 2017

prosecutrix stated that she had known applicant Nikhil for the last five years
and there was a love affair between them. On 29th December 2016, Nikhil
had asked him to escape from the house in order to marry with him. On this,
around 5-6 o’clock in the morning without informing her family members
she went to the Hawa Mahal, where she met Nikhil who took her to Arya
Samaj Mandir situated at Nehru Nagar, where both of them got married, then
they went to Shirdi where they stayed for four or five days. Thereafter they
came back to Bhopal and stayed there for 5-6 days at Nikhil’s friend’s house
situated at Neelbad area in Bhopal. During that period Nikhil also made
physical relationship with her, after which Nikhil’s friend Shubham (co-
accused) took them to Jabalpur, where they stayed in the house of a person,
who happened to be an acquaintance of Shubham, as a guest for 6-7 days.
There too applicant Nikhil Had sex with her four to five times. On that
police also added offences under section 368, 376, 120-B, 212 of IPC and
Section 3, 4,5,6,11 (i) and 12 of POCSO Act and after investigation of the
crime police filed charge-sheet against the applicant. On that charge-sheet
S.T. No. 28/18 was registered. Applicant is facing trial in that case before 7 th
A.S.J. Bhopal and filed this petition for quashing the F.I.R. of the crime No.
293/16 registered at P.S. Kotwali Bhopal and the proceedings of S.T. No.
28/18.

Learned counsel for the applicant submitted that the prosecutrix was
major at the time of incident and went with the applicant on her own will. In
the birth certificate of the prosecutrix, her date of birth is mentioned as
30/11/1998. According to that certificate, prosecutrix was major at the time
of incident. The prosecutrix in her statement recorded by the JMFC under
Section 164 of Cr.P.C. also deposed that she went with the applicant at her
own will and she had married with applicant and is living with him. Since
prosecutrix was major at the time of incident and went with applicant own
her on will, no offences under Section 363, 376, 120-B, 212 of IPC and
Section 3, 4 of POCSO Act is made out against the applicant. He further
submitted that if it is assumed that the age of the prosecutrix was 17 years
two months at the time of incident as appears on the basis of school entry
register produced by the prosecution along with the charge sheet even then
3 M.Cr.C.No.16856 of 2017

no offence is made out against the applicant from the charge-sheet because
prosecutrix went with the applicant on her own will. In this regard, he also
placed reliance on Delhi High Court judgment passed in Laxmi Devi
Anr.; Maha Dev Devender @ Babli v. State reported in (2012) DLT 619
and Apex Court judgment passed in Satish Mehra Vs. State of Delhi
reported in 2013 CrLJ 411, Rajeev Thaper Vs. Madan Lal reported in
(2013) 3 SCC 330 and Independent thought Vs. Union of India reported in
(2017) 10 SCC 800, and State of Karnataka Vs. L. Muniswamy and others
reported in 1977 CRLJ 1125.

Learned counsel for the prosecutrix also submitted that prosecutrix
was major at the time of incident and went with the applicant on her own
will and at present she is living with the applicant and also married with the
him, so offence registered against the applicant should be quashed.

Learned counsel for the State opposed the prayer and submitted that
according to school entry register the date of birth of the prosecutrix is
23/10/1999 and on that basis the age of the prosecutrix was below 18 years
at the time of incident i.e. 29/12/16 and she was minor at the time of
incident. Applicant abducted the prosecutrix and made sexual relations with
her, so offence under Section 368, 376 of IPC and Section 3/ 4 and 12 of
POCSO is clearly made out against the applicant and prays for rejection of
petition.

This Court has gone through the record and arguments put forth by
the learned counsel for both the parties. In the entry of school register, the
date of prosecutrix is mentioned 23/10/1999 and on that basis the age of the
prosecutrix appears to be below 18 years at the time of incident i.e. 29/12/16
and she was minor at the time of incident. Applicant took the prosecutrix and
made sexual relations with her. Although applicant produced Birth certificate
of the prosecutrix in which the date of birth of prosecutrix is mentioned as
30/11/1998 but authenticity of that certificate has to be tested and it requires
evidence to decide. So at this stage only on that basis it can not be said that
prosecutrix was major at the time of incident.

Fact of the cases relied on by the learned counsel of the applicant do
not match with the instant case. The case Laxmi Devi Anr.; Maha Dev
4 M.Cr.C.No.16856 of 2017

Devender @ Babli v. State (supra) relate to the incidents that occurred
before November 2012 when POCSO Act was not in force. While this
incident occurred on 29/12/2016 when POCSO Act had come into force and
according to section 3 of the POCSO Act intercourse with a woman below
18 years of age is the offence irrespective of the fact that she is a wife of
accused.

in the case of Satish Mehra v. State (NCT of Delhi), (Supra) apex
court held “charge sheet only quashed if the attending facts and
circumstances satisfy the narrow test that even accepting all the allegations
levelled by the prosecution, no offence is disclosed. While in this case
offence under POCSO Act is prima facie made out against applicant.
Because on the basis of school entry register and the statement of parents of
the prosecutrix her age appeared to be below 18 years.

In the case of Rajeev Thaper Vs. Madan Lal (supra) apex court held
“To invoke its inherent jurisdiction under Section 482 CrPC, the High Court
has to be fully satisfied that the material produced by the accused is such
that would lead to the conclusion that his/their defence is based on sound,
reasonable, and indubitable facts; but the material relied upon by the accused
should be of sterling and impeccable quality.” While in this case the
authenticity of birth certificate of the prosecutrix has to be proved which
requires evidence. On the other hand prosecution produced entry of school
admission register to prove the age of prosecutrix in which date of birth of
prosecutrix is mentioned as 23/10/1999. In the case of Independent thought
Vs. Union of India (Supra) apex court held that Exception 2 to Section 375
I.P.C. in so far as it relates to a girl child below 18 years is liable to be struck
down on the following grounds:-

(i) it is arbitrary, capricious, whimsical and violative of the rights of the
girl child and not fair, just and reasonable and, therefore, violative of Article
14, 15 and 21 of the Constitution of India.

In the case of State of Karnataka Vs. L. Muniswamy and others
(supra) Apex court held that High Court is entitled to quash a proceeding if
it comes to conclusion that allowing the proceeding to continue would be an
abuse of the process of the court or that the ends of the justice requires that
5 M.Cr.C.No.16856 of 2017

the preceding out to quashed. While in this case if it is proved that
prosecutrix was below 18 years of age at the time of incident, there is
sufficient evidence to proceed against the applicant in the case. So these
judgements do not help applicant much.

Hon’ble Supreme Court in the case of Yogendra Yadav and others vs.
State of Jharkhand and another (2014) 9 SCC 653 held that offences which
involve moral turpitude, grave offences like rape murder cannot be effaced
by quashing proceedings under section 482 because they have harmful effect
on society and are not restricted to two individuals or group quashing of
such offences may send a wrong signal to society.

In the case in hand prosecution produced the entry of school register
along with charge sheet in which date of birth of prosecutrix is mentioned
23/10/1999 and on that basis the age of the prosecutrix appears to be below
18 years at the time of incident i.e. 29/12/16 and she was minor at the time
of incident. Applicant took the prosecutrix along with him and made sexual
relations with her. So from the charge sheet offence under section 3/4 of the
POCSO Act is prima facie made out against the applicant. So FIR and the
proceedings of S.T. No. 28/18 can not be quashed at this stage. Although
applicant produced Birth certificate of the prosecutrix in which the date of
birth of prosecutrix is mentioned as 30/11/1998 but authenticity of that
certificate has to be tested and it requires evidence to decide. Applicant is
free to raise this issue before trial court at the appropriate stage and produce
the evidence in support of his defence which will consider by the trial court
on merits.

Accordingly, petition is disposed of.

(Rajeev Kumar Dubey)
Judge
vs

Digitally signed by VARSHA
SINGH
Date: 2018.08.29 17:55:33
+05’30’

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