HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 37440 of 2019
Applicant :- Satendra
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Manish Kumar Kashyap,V.P. Singh Kashyap
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Manish Kumar Kashyap, 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 charge sheet dated 05.05.2019, arising out of Case Crime No. 23 of 2018, under Section 363, Section366, Section376 I.P.C. 3/4 P.O.C.S.O. Act, P.S. Kasganj, District Kasganj as well as entire proceeding of S.S.T. No. 28/19 pending in the court of Additional District Sessions Judge (1st) Kasganj (State Vs. Satendra).
It is argued by the learned counsel for the applicant that the victim is major as per the Ossification Test Report which is annexed at page 28 of the paper book and as per Aadhar Card the date of birth of the victim is 01.01.99 and hence she was major on the date of occurrence. The victim has married the accused and has a child of four months. All these aspect have not been taken into consideration and the police has submitted charge sheet in a routine manner against the accused applicant which is abuse of process of court and therefore, the charge sheet needs to be quashed.
On the other hand learned A.G.A. has vehemently opposed the prayer of quashing and has drawn attention to page 37 of the paper book where copy of the High School Certificate has been annexed in which the date of birth of the victim has been recorded as 15.01.2002 and if the age of the victim is calculated on the basis of said date of birth, she would be 15 years 11 month and 09 days and hence a minor. Therefore, it is argued that offences under Section 3/4 of P.O.C.S.O. Act as well as Section 376 I.P.C. would be made out.
I have gone through the F.I.R. In which opposite party no. 2 has recorded that the victim was studying in class 11 and her date of birth is 15.01.2002. She had eloped with some unknown person on 24.12.2017 at about 06:00PM and when she did not return for long, he lodged the present F.I.R. In statement under Section 161 Cr.P.C. the victim has stated that she is 21 years of age and she had gone to the applicant’s house of her own free will on 24.12.2017 at 02:00PM and was living with him for last 18 months and one child of four months was born out of the said wedlock. Her father wanted to marry her to some other person of his choice and because of that she had left the place of her parents and had gone to the house of accused. The same statement has been given by her in her statement under Section 164 Cr.P.C. annexed at page 34 of the paper book. Since, the police has submitted the charge sheet after having investigated the case and recording the statement of as many as eight witnesses, the veracity of the statements of the said witnesses cannot be adjudged in proceeding under Section 482 Cr.P.C.
Looking to the fact that the victim is a minor, therefore, she could not give consent for marriage and in view of that it cannot be denied that offence under Section 3/4 of P.O.C.S.O. Act and Section 376 of I.P.C. is not made out against the accused applicant.
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.?
In view of above, it is apparent that the victim would be treated to be a minor on the date of occurrence.
It would be further pertinent to rely here upon 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.”
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.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.” (Emphasis added)
The prayer for quashing the proceedings is refused.
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.
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.
With the aforesaid direction, this application is hereby disposed of.
Order Date :- 17.10.2019