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Smt. Usha Devi @ Manda Kumari And … vs State Of U.P. And Another on 22 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 8767 of 2019

Applicant :- Smt. Usha Devi @ Manda Kumari And Another

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

Counsel for Applicant :- Indra Bhan Yadav,Anand Kumar Srivastava,Dinesh Kumar Maurya

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

It appears that victim has been impleaded as accused-applicant no. 1 erroneously in the array of the parties, in which she is not an accused, therefore, name of the accused-applicant no. 1 is directed to be deleted by learned counsel for the applicant during the course of the day.

Heard Sri Indra Bhan Yadav, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.

The present application has been filed with a prayer to quash the S.T. No. 40 of 2017, arising out of Crime No. 240 of 2015, under Section 363, Section366, Section376 IPC and Section 3/4 POCSO Act, P.S. Bhadohi, District Sant Ravidas Nagar.

It is argued by the learned counsel for the applicant that the daughter of opposite party no. 2 i.e. victim has married accused-applicant no. 2 and as a proof thereof, notary certificate has been annexed at page 21 and 22 of the paper book. It is further argued that out of the said wedlock, there are two children also. The victim had not supported the prosecution version in her statement u/s 164 SectionCr.P.C. as mentioned in the F.I.R. and has stated that she had gone with the accused of her own free will and had married him. In supplementary affidavit, which has been filed today by him, he has given proof of birth of children. All these aspects have not been taken into consideration while submitting charge sheet, which is nothing but an abuse of process of court and needs to be quashed.

Learned A.G.A. has vehemently opposed the prayer of quashing and has drawn attention to the High-school certificate of the victim, which is annexed at page 70 in which date of birth of the victim is recorded as 5.5.1999 and it is argued that on the date of occurrence, age of the victim was 16 years 1 month and 18 days, hence she was a minor, therefore Investigating Officer has not committed any error in submitting charge sheet under Section 376 IPC as well as 3/4 POCSO Act, in view of law laid down by Hon’ble Supreme Court in the case of SectionIndependent Thought vs. Union of India and another, (2017) 10 SCC 800.

I have gone through the F.I.R., it is recorded by the opposite party no. 2 in the F.I.R. that on 23.6.2015 in the evening, one Dara Kulbul Ram had died at the hand of the informant, right then Jagdish, Chhote Lal and Dharmu @ Dharmraj (accused-applicant no. 2) came to his house and gave threat that his niece would be abducted. The opposite party no. 2 was mentally perturbed because of the death of Dara and had gone for his last rites and in the same night i.e. on 23.6.2015, victim was abducted and when he returned on the next day in the morning he came to know about this occurrence, then he lodged the F.I.R..

After investigation by police, after having recorded as many as 13 witnesses, charge sheet has been submitted. These statements of the witnesses cannot be scrutinized in proceedings u/s 482 SectionCr.P.C. as that would require trial. The statement u/s 164 SectionCr.P.C., in which victim has stated that she had gone with the accused of her own free will, does not matter because she was a minor and, hence she could not have been given consent and in view of law laid down in the case of Independent Thought (supra). It is apparent that offence under the above mentioned section is made out. Paragraph nos. 1 and 107 of the said ruling are as follows:

“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.”

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.

However, it is provided that if the applicant no. 2 appears and surrenders before the court below within 45 days from today and moves an application for bail, the same shall be considered by the court below in accordance with law. Till 45 days, no coercive action shall be taken and after expiry of the aforesaid period, coercive action shall be taken against him.

With the aforesaid direction, application u/s 482 Cr.P.C. stands disposed of.

Order Date :- 22.10.2019

A.P. Pandey

 

 

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