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Sanjay Kumar Diwakar And Another vs State Of U.P. And Another on 18 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

1.

Court No. – 65

Case :- APPLICATION U/S 482 No. – 7951 of 2019

Applicant :- Sanjay Kumar Diwakar And Another

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Ainul Haq

Counsel for Opposite Party :- G.A.,Balbeer Singh

Hon’ble Dinesh Kumar Singh-I,J.

1. Heard Sri Aniul Haq, learned counsel for the applicant, Sri Amit Kumar Singh, Advocate holding brief of Sri Balbeer Singh, learned counsel for the O.P. No.2 and Sri G.P. Singh, learned A.G.A. for the State.

2. Learned counsel for the applicant has made the victim of this case also a party as applicant No.2 which is not required, hence, he is directed to delete the same in the course of day.

3. This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the Charge-sheet No. 1 of 2018 dated 06.08.2018 in Case Crime No. 0157 of 2017 under Sections 363, Section366, Section376(2)(i) Section ¾ of P.O.C.S.O. Act, 2012, P.S. Karari, District Kaushambi and its consequential proceeding of Case No. 278 of 2018 pending in the Court of learned Additional District and Session, Judge, Room No.1, Kaushambi.

4. The main argument made by learned counsel for the applicant is that O.P. No.2 has made a false complaint against accused applicant no. 1 and O.P. No.2 is father of the victim. Both of them (accused applicant and victim) had married on 13.12.2018 and the same was got registered on 4.04.2019. Marriage Registration Certificate has been annexed with the Rejoinder-Affidavit, therefore, offence under Section 376 (2) (i), 366, 363 SectionI.P.C. and ¾ P.O.C.S.O. Act would not make out. Both the accused and the victim are staying together as husband and wife happily. Charge-sheet submitted by I.O. is nothing but an abuse of process of Court which needs to be quashed.

5. Learned A.G.A. has vehemently opposed the quashing of charge-sheet.

6. Learned counsel for the applicant has further placed reliance upon Monu @ Mukesh Kumar Vs. State of U.P. and Another 2019 Law Suit (All) 44 in which facts of the case were that one Tej Pal had lodged an F.I.R. on 13.02.2015 at 5:45 P.M. alleging that the applicant/accused Monu @ Mukesh Kumar and his brother, Bhupesh had abducted the prosecutrix aged about 16 years, daughter of informant on 6.12.2014 at about 4:00 p.m. and after investigation, the police submitted charge-sheet against accused applicant Monu @ Mukesh Kumar for offences punishable under Sections 363 and Section366 I.P.C. After considering the entire facts, this Court had quashed the proceedings and in this case also, the victim was minor.

7. I have gone through the F.I.R.

8. As per F.I.R., O.P. No. 2 who is father of the victim has mentioned that on 13.05.2017 at about 8:30 p.m. her daughter, Sadhna aged about 15 years had gone to attend nature’s call and then the accused, Sanjay Diwakar had enticed her away. The F.I.R. was lodged by him at P.S., Karari registered as Crime No. 0157 of 2017 under Sections 363 and Section366 I.P.C. on 14.05.2017 at 15:30 hours. After investigation of this case, charge-sheet has been submitted against the accused applicant, Sanjay Kumar Diwakar under the above-mentioned sections after having recorded as many as 12 witnesses. The contentions made in the Affidavit from the side of applicant are that the applicant and the victim belong to different caste and they had love affair and when this came to the knowledge of O.P. No.2 and his family members, the victim was sent to her aunt’s home in Kanpur where she came to know that her father was in search of an aged person to marry her. Thereafter, the victim ran away from her aunt’s house and solemnized marriage with the present accused. After registration of marriage, both had preferred Crl. Misc. Writ Petition No. 14704 of 2017 before this Court which is annexed as annexure-2 seeking quashing of the F.I.R. which was disposed of with certain directions to the C.J.M. regarding the custody of the alleged kidnapped girl. Pursuant to the said order dated 28.07.2017, the applicant and the victim could not appear before District Court concerned as O.P. No.2 had threatened to kill them, thereafter, they left for Ahmedabad and other places to save their life. On 7.07.2018, both of them (accused applicant and victim) were arrested in Pune from a hotel where they were working for their livelihood but the police, with ulterior motive, had shown them arrested from village which was near to their residence on 9.07.2018. The applicant was sent to jail on 10.07.2018 and the victim was sent to Child Welfare Committee, Kaushambi. Thereafter victim was medically examined and on 12.07.2018, her age was determined by C.M.O., Kaushambi in which she was found to be 18 years old which is annexed as Annexure-3. On 12.07.2018, statement of victim was recorded under Section 164 Cr.P.C. which is at annexure-4 in which she has not supported the prosecution case as she has clearly stated that the accused used to live by the side of her house and she knew him for the last four to five years and was in love with him and also wanted to marry the accused, thereafter victim had preferred a Habeas Corpus Writ Petitoin No. 3565 of 2018 through her father-in-law which was allowed (annexed at Annexure-5) and she was directed to be set on liberty forthwith. After being released from the Government Shelter Home, victim has been living happily in her matrimonial home with her in-laws.

9. Accused applicant had been granted bail by this Court vide judgement and order dated 5.10.2018, copy of which is annexed at page no. 35 of the paper book. The date of birth of the victim as per academic qualification is 8.03.2001 and as per the High School Certificate, the age of victim shall be 16 years 2 months and 5 days on the date of occurrence. The victim is found major according to the medical report. The I.O. in very arbitrary manner, under the influence of O.P. No.2, has added 376 (2) (i) SectionI.P.C. and ¾ P.O.C.S.O. Act without considering the facts that the applicant was more than 16 years of age as per academic qualification, therefore, proceedings needs to be quashed.

10. Though learned counsel for the O.P. No.2 has appeared but no Counter-Affidavit has been filed from his side but it is mentioned in Counter-Affidavit filed from the side of State that I.O. had collected evidence and had found that the victim was minor and, accordingly, charge-sheet was submitted against the accused applicant under appropriate Sections, hence, charge-sheet has been rightly submitted as the I.O. had collected credible evidence, hence the present Application is liable to be dismissed.

11. First of all, I would like to take up the citation which has been relied upon by the learned counsel for the applicant. It needs to be clarified that the said case has different facts as the same pertain to offence under Sections 363 and Section366 I.P.C. only which contains the abduction of the victim and it was directed in that case that proceedings should be quashed in peculiar facts and circumstances of the case.

12. As regards the present case, it may be mentioned here that it is admitted to the learned counsel for the applicant that victim was less than 18 years as according to the educational record, she was minor on the date of occurrence. 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.”

13. 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.”

14. By the above judgment, it is clear that under P.O.C.S.O. Act there is no description between married and unmarried child, if child is aged below 18 years, same would be treated to be a minor. In the present case the daughter of opposite party no. 2 is stated to have married the applicant but that would not take away the fact that she was child below 18 years, hence charge-sheet has been rightly submitted under the afore-mentioned sections.

15. In view of the above position of law and looking to the fact that charge-sheet has been submitted under Section ¾ P.O.C.S.O. Act as well, therefore, in my opinion despite the fact that victim and the accused applicant have been staying together as husband and wife, this is not a fit case for quashing of the proceedings, which may sound to be very unusual but with heavy heard, this Court has no option but to express that view as per legal position.

16. 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.

17. The prayer for quashing the proceedings is refused.

18. 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.

19. The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.

Order date:- 18.09.2019

A. Mandhani

 

 

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