The photocopy of the F.I.R., report of the FSL, Mahanagar, District Lucknow and the School Leaving Certificate of the applicant alongwith School register filed by the learned A.G.A. is taken on record.
Heard Mr. Manoj Kumar Singh, learned counsel for the applicant, Mr. Aniruddh Kumar Singh, learned A.G.A. and perused the record.
The present application has been filed under Section 482 Cr.P.C. for quashing the impugned order dated 16.11.2019 passed by the Special Judge, POCSO Act/F.T.C.-I, Bahraich in Special Sessions Trial No.140 of 2019 arising out of Case Crime No.473 of 2019, under Sections 376AB I.P.C. & Section 5M/6 POCSO Act, P.S. Kaiserganj, District Bahraich.
Learned counsel for the applicant submitted that the learned court below has wrongly passed the order dated 16.11.2019. He further submitted that as per the Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015, the applicant was to be produced before the Juvenile Justice Board for preliminary assessment, but he was not produced.
Learned counsel for the applicant further submitted that his age determination was also not done properly as per the medical report of C.M.O., Bahraich he is aged about 14-15 years, but merely on the basis of concocted facts, the prosecution relied on the School Leaving Certificate of the applicant, as the date of birth of applicant is shown as 16.05.2002 in the school document.
Learned counsel for the applicant further submitted that his trial is to be conducted by the Juvenile Justice Board and he further submitted that the applicant moved an application before the court below on 23.10.2019 but the court below rejected his application ignoring the Aadhaar Card, in which his date of birth is shown as 02.04.2008, therefore, the impugned order is liable to be set aside.
Learned A.G.A. opposes the prayer of the applicant and submitted that there is no illegality in the order passed and he further submitted that the F.I.R. was lodged by the father of the prosecutrix with the allegation that the prosecutrix aged about 7 years was raped by the applicant and she received injuries on her private parts and her clothes were found tattered and he further submitted that the F.I.R. and the medical report was not annexed with the application, deliberately. He further submitted that as per the prosecution case, the date of birth of the applicant is 16.05.2002 and he is above 17 years and he further submitted that the charge sheet was filed by the Investigating Officer under Sections 376AB I.P.C. and Section 3/6 POCSO Act and the court below had taken cognizance and the preliminary assessment was done by the court below and there is no illegality in the order passed by the learned court below on 16.11.2019.
Considering the arguments of the learned counsel for the applicant as well as learned A.G.A. and going through records, it is evident that in the statement dated 23.10.2019, mother of applicant as CW-1 categorically stated that the applicant was born in the Kaiserganj Hospital, District Bahraich, but no documentary evidence was placed by the applicant or her mother before the court below. It is also evident from the record that Mr. Vimal Kumar Srivastav of the Primary School Vijaypur was examined as CW-2 and he proved the date of birth of the applicant as 16.05.2002 which is mentioned in the record of the School. On 09.12.2019, an observation was made by this Court that the applicant may obtain the Kutumb register and place it on record, but he also failed to provide the Kutumb register, in which the detail of the family members are to be maintained by the Panchayat Secretary and Village Pradhan. As per the School Leaving Certificate his date of Birth is 16.05.2002, therefore, at the time of offence he was above 17 years. It is also evident that the learned court below has categorically observed at the time of assessment that the applicant is fully grown up and having good instinct and the nature of offence is very heinous and the court below was competent to proceed for trial and there is no illegality in the order passed by the court below.
Accordingly, the application is hereby dismissed.
Order Date :- 17.12.2019 S. Shivhare