Court No. - 65
Case :- APPLICATION U/S 482 No. - 35600 of 2019 Applicant :- Ritesh @ Vikash Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bishram Tiwari Counsel for Opposite Party :- G.A.,Kaushal Kishore
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Bishram Tiwari, learned counsel for the applicant, Sri Bhaiya Ghanshyam Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire proceeding pursuant to the charge sheet dated 14.03.2019 submitted by Investigating Officer and cognizance taken by the Court dated 29.03.2019 against the applicant in S.T. No. 199 of 2019 (State Vs. Ritesh Urf Vikresh) arising out of Case Crime No. 270 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 The Protection of Children From Sexual Offences Act, Police Station – Nebua Naurangia, District Kushi Nagar, pending in the Court of Ist Additional Sessions Judge/Special Judge, Kushinagar at Padrauna.
It is argued by the learned counsel for the applicant that accused is languishing in prison. The victim is the daughter of the opposite party No. 2 and she is staying with the accused applicant as his wife. The age of victim was 17 years on the date of occurrence as per the ossification test report, which is annexed at page No. 30 of the paper book. This is nothing but an abuse of the process of court as this fact has not been taken into consideration by the Investigating Officer during the investigation of the case, hence the prosecution against the applicant needs to be quashed.
Learned AGA has vehemently opposed the prayer for quashing of the proceeding and has argued that as per the admission of the counsel for the victim, her age is 17 years, therefore, she could not have given consent of marriage to the applicant and therefore offence under Section 3/4 of the POCSO Act would be made out.
I have gone through the First Information Report. In the First Information Report it is recorded by the opposite party No. 2 that one Shahid used to come regularly to the house of the opposite party No. 2, therefore, she has suspected that he has enticed away her daughter/victim aged about 13 years on 14.07.2012 (appears to be wrong as it should be 14.07.2018) at about 03:00 P.M. and would have placed her at some unknown place. About eight days ago she had asked for mobile number from Shahid and Shahid connected number of opposite party No. 2 on the mobile number of the accused applicant Ritesh. Subsequently, when the opposite party No. 2 asked for the mobile number of Ritesh to be given to her, Ritesh accused applicant had restrained Shahid from giving his number to the opposite party No. 2. Because of this the opposite party No.
2 had full suspicion that Shahid and Ritesh were involved in enticing away opposite party No. 2's daughter and the First Information Report was lodged against the accused applicant and Shahid. Investigation was done by the Investigating Officer and after having recorded as many as 18 witnesses the charge sheet was submitted against accused applicant under above mentioned Sections. In the statement of the victim recorded under Section 161 Cr.P.C. the victim has stated that her age is 15 years. One Vikas @ Ritesh (accused applicant) used to talk to her for the last one year and she had gone with him of her own free will and had married him in a temple and she is staying with him as his wife. In the statement recorded under Section 164 Cr.P.C. she has stated that Shahid, Nizam and Kabir belong to her village and three of them colluded to take her away and asked her to marry accused applicant. It is apparent that victim was minor on the date of occurrence and therefore, she could not give consent to marry accused applicant.
This Court places reliance on the law laid down by the Apex Court in Independent Thought vs. Union of India and another, (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are reproduced below:-
"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 (IPC) 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 IPC 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 Article 15(3) of the Constitution as well as contrary to Article 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."
In view of the above position of law, I find that it cannot be denied a cognizable office is made out in the present case and prima facie an offence under Section 3/4 of the POCSO Act as well as under Section 376 IPC would be made out. At this stage, the veracity of the witnesses and other evidence which have been collected by the Investigating Officer cannot be tested in proceedings u/s 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 Cr.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 R.
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 and 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.
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 application under Section 482 Cr.P.C. stands dismissed.
Order Date :- 25.9.2019 LBY