HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 38164 of 2019
Applicant :- Rahul
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shiv Kumar Singh Rajawat
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Shiv Kumar Singh Rajawat, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned charge-sheet No. 57 of 2016 dated 16.03.2016 in Special Case No. 139 of 2016 arising out of Case Crime No. 370 of 2015 under Sections 363, Section366, Section376 I.P.C. and 3/4 P.O.C.S.O. Act, P.S. Babina, District Jhansi and cognizance order dated 10.05.2016.
It has been argued by learned counsel for the applicant that O.P. No. 2 is mother of victim who has falsely implicated the accused applicant because victim has married the applicant although no marriage certificate has been annexed. He has drawn attention of this Court towards the order dated 15.11.2017 which has been passed in Habeas Corpus Writ Petition No. 15967 of 2017 on a petition moved by the daughter of O.P. No. 2 (corpus) in which the victim was directed to be set at liberty as she was found to be above 18 years, therefore, the offence under Section 376 I.P.C. as well as Section 3/4 P.O.C.S.O. Act would not be made out. This aspect has not been taken into consideration by I.O. who had submitted charge-sheet in routine manner which is abuse of process of Court which needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer of quashing of the charge-sheet and has drawn attention of this Court towards the opinion of I.O. made on the basis of age recorded in educational certificate, according to which the victim was minor on the date of occurrence, hence charge-sheet under Section 3/4 of P.O.C.S.O. Act as well as Section 376 I.P.C., was rightly submitted, quashing of which should be refused.
I have gone through the F.I.R.
It is recorded in it by O.P. No. 2 that her daughter who is student of class-IX did not return home on 21.12.2015, thereafter she got the information that her daughter has been enticed away by the accused applicant, Rahul and in the said occurrence, Arif and Jitendra had also cooperated. She was seen being taken away by the accused applicant, Rahul by the witnesses named in the F.I.R. Her date of birth is recorded as 10.01.2001 and the date of occurrence is 21.12.2005, hence victim was 14 years 11 months and 11 days on the date of occurrence. The victim in her statement recorded under Section 164 Cr.P.C. has stated that she loved the accused applicant and had gone from her house on 21.12.2015 on her own free will. She had come with the accused to Jhansi and there, physical relationship was established by the accused applicant with her and on 25.12.2015, they married each-other. Statement of victim, being minor on the date of occurrence, would not be of any consequence as she had not attained the age of majority.
It would be further pertinent to mention here the judgment of Apex Court rendered in SectionIndependent Thought vs. Union of India and another, (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are as under:
“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.”
Hence, according to the above-mentioned law, the offence of rape under Section 376 I.P.C. as well as Section 3/4 P.O.C.S.O. Act would be made out against the accused applicant prima-facie.
As regards the question of setting free the victim is concerned by this Court in Habeas Corpus Writ Petition, no opinion is required to be expressed because that is an order passed not on the basis of evidence on record. Further 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.”
The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
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.
It is mentioned by learned counsel for the applicant that accused applicant is already on bail.
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. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.
With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 11.11.2019