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2025 DIGILAW 171 (ALL)

Mukesh Ram v. State Of U. P.

2025-02-05

RAJEEV MISRA

body2025
JUDGMENT : Rajeev Misra, J. 1. Heard Mr. Dhirendra Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. appearing for State. 2. An affidavit of compliance filed by the learned A.G.A. in Court today, is taken on record. 3. Perused the record. 4. Applicant-Mukesh Ram, who is a charge sheeted accused has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayers:- "It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned cognizance order dated 06.03.2023 passed by the learned Special Judge, POCSO Act, Chandauli and impugned charge sheet dated 25.02.2023 as well as entire criminal proceedings of Special Trial No. 245 of 2023 arising out of Case Crime No. 43 of 2023, under Sections 363 , 366, 376(2)(n) I.P.C. and Section 5 (J)/6 of Protection of Children from Sexual Offences Act, 2012, Police Station Chandauli, District Chandauli, pending before the Court of learned special Judge, POCSO Act, Chandauli. It is, further prayed that this Honb'le Court may kindly be pleased to stay the further proceedings of special Trial No. 245 of 2023, pending before the court of learned Special Judge, POCSO Act, Chandauli, during the pendency of present application before this Hon'ble Court, and/or may pass such other orders as this Hon'ble Court may deem fit and proper under the circumstances of the case." 5. At the very outset, the learned A.G.A. submits that notice of this application has been served upon first informant-opposite party No. 2 on 17.01.2025. However, in spite of service of notice neither any counter affidavit has been filed by first informant-opposite party no. 2 in opposition to this application nor anyone has put in appearance on his behalf to oppose this application even in revised call. 6. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and facing trial before court below in above mentioned sessions trial, however in view of the peculiar facts and circumstances of the case as have emerged on record, the present application is liable to be allowed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant contends that first informant-opposite party no. 2, Mohd. In furtherance of aforesaid submission, the learned counsel for applicant contends that first informant-opposite party no. 2, Mohd. Israil (Father of the prosecutrix) lodged an F.I.R. dated 09.02.2023, which was registered as Case Crime No. 0043 of 2023, under Section 366 , 363, 376(2)(n) I.P.C. and section 5(J)/6 of Protection of Children from Sexual Offences Act, 2012, Police Station Chandauli, District Chandauli. In the aforesaid F.I.R., applicant, Mukesh Ram, has been nominated as solitary named accused. After aforementioned F.I.R. was lodged the prosecutrix solemnized marriage with applicant. As such the prosecutrix is the wife of applicant. By reason of above, the prosecutrix started residing with applicant as his wife. In view of the cohabilitation of the prosecutrix and applicant as husband and wife a son namely, Sagar was born on 28.06.2023. The birth certificate of the child has been brought on record and is at page 93 of the paper book. As per the said certificate, the applicant is shown as the father whereas the prosecutrix is shown as the mother. 7. On the above premise, the learned counsel for applicant contends that criminality, if any, committed by applicant now stands washed off. It is thus submitted by the learned counsel for applicant that no good ground now exists to prolong the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. He therefore submits that present application is liable to be allowed by this Court. 8. Per contra, the learned A.G.A. representing State-opposite party no. 1 has vehemently opposed the present application. Learned A.G.A. submits that since the prosecutrix was a child within the meaning of the term 'child' as defined in POCSO Act on the date of occurrence therefore, criminality committed by applicant shall not stand washed off as as suggested by the learned counsel for applicant. As such, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 9. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the criminal prosecution of applicant commenced when the F.I.R. dated 09.02.2023 was lodged by first informant- opposite party no. 2, Mohd. Israil (father of the prosecutrix). 9. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the criminal prosecution of applicant commenced when the F.I.R. dated 09.02.2023 was lodged by first informant- opposite party no. 2, Mohd. Israil (father of the prosecutrix). Subsequent to the aforesaid F.I.R., the proseutrix has solemnized marriage with applicant. As a result, the proseuctrix became the wife of applicant and started residing with him as his wedded wife. From the cohabilitation of applicant and the prosecutrix i.e. husband and wife a son namely, Sagar was born. The birth certificate of the son is on record at page 93 of the paper book wherein the applicant is shown as the father whereas the prosecutrix is shown as the mother. 10. In view of the aforesaid subsequent development the criminality, if any, committed by applicant shall stand washed off. The bonafide of the prosecutrix is further evident from the fact that the prosecutrix has joined the applicant in the present criminal proceedings inasmuch as she has also filed her affidavit in support of present application. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. 11. At this juncture, reference be made to the judgement of Supreme Court in K. Dhandapani Vs. The State By the Inspector of Police , 2022 SCC OnLine SC 1056. 12. Since the judgement is a short one therefore the same is reproduced in its entirety: "Leave granted. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily wages in a private factory. FIR was registered against him for committing rape under Sections 5 (j)(ii)read with Section 6 , 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous Reason: imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal. Mr. He was convicted after trial for committing the said offences and sentenced to undergo rigorous Reason: imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal. Mr. M.P.Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix. After hearing the matter for some time on 08 th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order." 13. In view of the discussion made above, the present application succeeds and is liable to be allowed. 14. It is accordingly allowed 15. The entire proceedings of Special Trial No. 245 of 2023 arising out of Case Crime No. 43 of 2023, under Sections 363 , 366, 376(2)(n) I.P.C. and Section 5 (J)/6 of Protection of Children from Sexual Offences Act, 2012, Police Station Chandauli, District Chandauli, pending before the Court of learned Special Judge, POCSO Act, Chandauli are hereby quashed. 16. However, in the facts and circumstances of the case, parties shall bear their own costs.