Court No. - 44
Case :- APPLICATION U/S 482 No. - 32513 of 2014 Applicant :- Sonu And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Khanna Counsel for Opposite Party :- Govt. Advocate AND Case :- APPLICATION U/S 482 No. - 32515 of 2014 Applicant :- Tota Ram And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Khanna Counsel for Opposite Party :- Govt. Advocate AND Case :- APPLICATION U/S 482 No. - 27087 of 2014 Applicant :- Devendra @ Monu And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Khanna Counsel for Opposite Party :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
These are three Applications u/s 482 Cr.P.C. although pending in different courts but relate to the same crime number. They are heard together and are being decided by a common judgment.
Heard Sri Raj Kumar Khanna, learned counsel for the applicants and learned A.G.A. None appears for the opposite party no. 2 despite service of notice.
On previous occasion applicant no. 1 Devendra and the victim girl Pooja, applicant no. 2 (in Application U/S 482 No. 27087 of 2014) appeared in person before this Court and stated that they are married with each other and are living together. One child is also born out from their wedlock.
Submission of the learned counsel for the applicants is that victim girl Pooja was major on the date of the incident i.e. 21.1.2012 as her date of birth is 10.6.1993 (annexure no. 4 to the Application U/S 482 No. 27087 of 2014). Referring to the aforesaid High School mark sheet it was further argued that victim was aged about 19 years but no medical examination was conducted by the Investigating Officer. Offence under Section 363, 366 IPC are not made out. Victim had gone along with applicant Devendra on her own freewill and they married. Charge sheet filed in the matter is based on insufficient evidence. Cognizance taken is also illegal. Applicant Sonu and Neetu both were minor, therefore, their case is pending before the Juvenile Justice Board. Applicant Devendra was absconding and hence charge sheet was filed against him as absconder. Referring to the entire evidence collected during the investigation and documents filed in support thereof it was further argued that continuation of the proceeding of the aforesaid criminal cases are abuse of process of law. Further submission is also that no prima facie case is made out. Charge framed against Tota Ram and his wife is also based on no evidence. Thus it was argued that since both the parties are living together and victim was major one, she has expressed before the court to quash the proceedings, hence the application be allowed and entire proceedings be quashed.
Learned A.G.A. opposed the prayer.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire evidence. Opposite party no. 2 was served but no body appeared nor any counter affidavit on his behalf is on record. High School mark sheet of the victim girl annexed along with the Application U/S 482 No. 27087 of 2014 is unrebutted document. Date of birth of the victim in the said mark sheet is shown as 10.6.1993. Offence is said to have been committed on 24.1.2012. If the age of the victim is calculated on the basis of the above facts she was aged about 19 years at the time of the said incident. If this is the position then offence under Sections 363, 366 IPC cannot be attributed against the applicants. It appears that charge sheet was submitted in the matter on insufficient evidence in a hasty manner. Charge was also framed against Tota Ram and Santosh without going through the provisions of Sections 363, 366 IPC and the evidence available on record. If the entire documents annexed with these applications are minutely analysed offences levelled against the applicants are not attracted. Essential ingredients are lacking.
Thus keeping in view the willingness expressed by the victim girl before the court on previous occasion and the discussions made herein above, this Court is of the opinion that continuation of the proceedings of the aforesaid cases will simply be an abuse of process of law.
Thus the applications are hereby allowed.
Proceedings of case no. 94 of 2013 (State Vs. Sonu and another) (crime no. 128 of 2012), under Sections 363, 366 IPC, Police Station Thakurdwara, district Moradabad pending in the court of Juvenile Justice Court, Moradabad; proceedings of S.T. No. 402 of 2013 (State Vs. Tota Ram and others) (crime no. 128 of 2012), under Sections 363, 366 IPC, Police Station Thakurdwara, district Moradabad pending in the court of Additional District & Sessions Judge, Court No. 14, Moradabad and proceedings of case no. 894/9 of 2012 (State Vs. Devendra) (crime no. 128 of 2012), under Sections 363, 366 IPC, Police Station Thakurdwara, district Moradabad pending in the court of Chief Judicial Magistrate, Moradabad are hereby quashed.
Office is directed to place a copy of this order on the record of Application U/S 482 No. 32515 of 2014 (Tota Ram and another Vs. State of U. P. and another) and Application U/S 482 No. 27087 of 2014 (Devendra @ Monu and another Vs. State of U. P. and another).
Order Date :- 23.2.2018 Sachdeva