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2023 DIGILAW 992 (ALL)

Saurabh v. State of U. P.

2023-04-11

UMESH CHANDRA SHARMA

body2023
JUDGMENT : 1. Learned A.G.A. has filed counter affidavit in Court, which is taken on record. 2. No rejoinder affidavit has been filed by the applicant. 3. Heard Ms. Manju Pandey, learned counsel for the applicant, Sri M.P.S. Chauhan, learned counsel for opposite party no. 2 and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record. 4. Opposite party no. 2 is personally served, but he has not came forward to oppose the applicant and has also not filed any objection/counter affidavit, but on the date of hearing Sri M.P.S. Chauhan, learned counsel for the opposite party no. 2. is present. 5. The present application under Section 482 Cr.P.C has been instituted by the applicant to quash the Charge-Sheet No. 93 of 2022 date 16.05.2022 as well as cognizance order dated 02.06.2022 passed by Additional District Judge / Special Judge (POCSO Act), Bulandshahr, in Case No. 2488 of 2022 - State Vs. Saurabh, arising out of Crime No. 82 of 2022 under Sections 363, 366, 376 I.P.C and 3/4 POCSO Act, Police Station Araniya, District Bulandshahr, pending in the aforesaid court. 6. In brief, the facts of the case are that opposite party no. 2, lodged F.I.R on 12.03.2022 against the applicant stating therein that on 11.03.2022 applicant's minor daughter Nargis aged about 17 years had gone to the filed from the house to preserve the wheat crops from the Neel Gai (Boselaphus Tragocamelus) (blue bull). After some time his wife Sabnam and nephew Liyaquat reached there and saw that neighbour Saurav S/o Devi Lal was taking away his minor daughter alluring on a black motorcycle on the road to village Ghatal. They returned the home and informed him, they search them but could not find, hence his F.I.R be lodged and necessary action be taken. After investigation the charge-sheet has been submitted in the aforesaid Sections against the applicant and a charge-sheet has also been submitted against accused Waris S/o Nanhey Khan, under Sections 363 and 366 I.P.C. 7. The applicant has taken ground that the I.O. has submitted the charge-sheet without proper investigation, virtually the applicant and the informant's daughter loved each other and solemnized marriage on 15.03.2022 in Naini Arya Samaj Mandir. Copy of the marriage certificate has been annexed as Annexure no. 3 to the affidavit. Since the daughter of opposite party no. The applicant has taken ground that the I.O. has submitted the charge-sheet without proper investigation, virtually the applicant and the informant's daughter loved each other and solemnized marriage on 15.03.2022 in Naini Arya Samaj Mandir. Copy of the marriage certificate has been annexed as Annexure no. 3 to the affidavit. Since the daughter of opposite party no. 2 was Muslim by religion, therefore before the marriage she converted herself as Hindu and changed her name from Nargis to Soni Arya and thereafter she approached the Hon'ble High Court by way of Habeas Corpus Writ Petition No. 604 of 2022, which is Annexure No. 4 to the affidavit. During the course of hearing, the Hon'ble High Court summoned his wife with opposite party no. 2. The victim (daughter of the informant) expressed her wish in the Court to go with the applicant at her freewill and without any pressure. Therefore, the allegations against the applicant are baseless and fabricated. 8. There is no criminal history of the applicant and there is no likelihood of his abscondance, hence the application be allowed and the aforesaid criminal proceeding and cognizance order be quashed. 9. The applicant has filed a supplementary affidavit to the effect that at the time of incident, the applicant's daughter was 17 years and eight months of age and she has stated in her statement to the I.O. that at the time of the incident she was 18 years old, she was in love with Suresh, she wanted to with marry him. When she was produced for medical examination, she denied internal and external examination and also stated that she married with the applicant on 10th March, 2022 at her own will and wish and wanted to live with him. Even, in the statement under Section 164 Cr.P.C. the victim has stated to the concerned Magistrate that her age was 18 years, she had gone with the applicant at her own will and wishes. She wanted to marry and live with the applicant without any pressure. The applicant has not committed any illegal act with her. Due to evil intention the informant obtained age certificate from the concerned Nagar Nigam, in which the age of the victim has wrongly been mentioned as 14th July, 2004 only to harass the applicant. She has also stated in the Hon'ble Court that the applicant has not committed any illegal act with her. 10. Due to evil intention the informant obtained age certificate from the concerned Nagar Nigam, in which the age of the victim has wrongly been mentioned as 14th July, 2004 only to harass the applicant. She has also stated in the Hon'ble Court that the applicant has not committed any illegal act with her. 10. Opposite party no. 2 has filed counter affidavit dated 29th January, 2023, that no cause of action has arisen to the applicant to file the present application. The I.O. has submitted charge-sheet after proper investigation and the concerned Judge has taken cognizance on the basis of the facts and evidences available on record. At the time of commission of crime the victim was a minor girl and her date of birth was 14th July, 2004, therefore, at the time of incident she was 17th years and 07 months and 27 days old. There is no relevancy of marriage certificate issued by Aarya Samaj Krishna Nagar, Prayagraj. The victim had neither converted her religion, nor she went with the accused at her sweet will. The victim never married the applicant, she never wished to go with the applicant, virtually she refused to go with the applicant and their habeas corpus writ petition was dismissed by the Hon'ble Court. prima-facie a case under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act is made out against the applicant. 11. The applicant could not make any prima-facie case for interference by this Hon'ble Court for exercising jurisdiction under Section 482 Cr.P.C. The victim has given statement under Section 161 Cr.P.C under the pressure of the applicant and the Police. Under the Police pressure she refused to conduct the medical examination. She has given statement under Section 164 Cr.P.C in present of Police. At the time of incidence and alleged conversion she was minor, therefore there is no relevancy of the aforesaid conversion certificate. Therefore the application be rejected on heavy cost. 12. Heard and perused the record. 13. According to the applicant, at the time of alleged occurrence, the victim was a major girl and she was able to contact physical relation/cohabitation with the accused. She was also able to convert her religion. She was in love with the accused and after converting her religion, she married with the applicant in Arya Samaj Temple, Naini, Allahabad. 13. According to the applicant, at the time of alleged occurrence, the victim was a major girl and she was able to contact physical relation/cohabitation with the accused. She was also able to convert her religion. She was in love with the accused and after converting her religion, she married with the applicant in Arya Samaj Temple, Naini, Allahabad. She also admitted the above facts in High Court in Habeas Corpus Writ Petition No. 604 of 2022. She was neither kidnapped nor abducted nor she was raped. She was not below the age of 18 years, hence there is no applicability of Sections 363, 366, 376 I.P.C and 3/4 POCSO Act. Hence the entire proceedings be quashed. 14. Contrary to that from perusal of record, it transpires that as per school leaving certificate of Class-IV, the date of birth of the victim is 14.07.2004, hence, she was below the age of 18 years at the time of alleged commission of crime. It is common principle of law that a person below the age of 18 years cannot give consent with regard to conversion of his or her religion and such person cannot give consent with regard to Section 376 I.P.C. as Section 375 I.P.C. provides that if a physical relation is being established with or without consent of a lady below 18 years of age, it would not be a valid consent and in that case physical relation with such minor girl would be deemed to be raped under the definition of Section 375 I.P.C. There is no record of the proceedings of Habeas Corpus Writ Petition No. 604 of 2022 to strengthen the version of the applicant that the victim had stated in favour of the applicant in High Court. There is no proof that father of the victim had changed her actual date of birth. If a person is below the age of 18 years and he/she is taken away from his/her lawful guardianship, it may be said that such person had been kidnapped. There is no proof that father of the victim had changed her actual date of birth. If a person is below the age of 18 years and he/she is taken away from his/her lawful guardianship, it may be said that such person had been kidnapped. After due investigation a charge-sheet has been submitted against the accused under Section 363, 366, 376 I.P.C. and 3/4 POCSO Act, hence, on the basis of evidence on record, it cannot be concluded that ongoing criminal proceeding is the abuse of process of Court and to prevent such abuse or to secure the ends of justice, this Court should exercise its inherent jurisdiction to quash the entire criminal proceeding in question. 15. Hence, the proceedings under Section 482 Cr.P.C is not tenable and is liable to be rejected. ORDER The application under Section 482 Cr.P.C is accordingly rejected.