Court No. - 65
Case :- APPLICATION U/S 482 No. - 32427 of 2019
Applicant :- Sudheer Kumar Jatav
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vinay Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard learned counsel for the applicant Shri Vinay Kumar Tripathi and in opposition, Shri G.P. Singh, learned A.G.A. for the State of U.P. and perused the record.
This application under Section 482 of Cr.P.C. has been moved on behalf of the applicant with a prayer to quash charge sheet dated 24.07.2016 as well as the entire proceedings of S.T. No. 87 of 2016 (State v. Sudheer Kumar), arising out of Case Crime No. 645 of 2016, under Sections 363, 366, 376 of I.P.C. and Section 3/4 of the POCSO Act, Police Station - Bilsanda, District - Pilibhit, pending before Additional Sessions Judge-Ist, Pilibhit.
It is argued by learned counsel for the applicant that the accused-applicant and the victim have married each other; the marriage certificate is annexed at page no. 26 of the paper book. However, no medical examination report has been annexed. Attention of the Court has been drawn to page no. 22 of the paper book, which contains the order of this Court dated 23.01.2017 passed in Criminal Misc. Bail Application No. - 1091 of 2017 (Sudhir Kumar v. State of U.P.), in which the victim's age is contended to be about 18 years. Attention is also drawn towards the order passed by this Court in Criminal Revision No. 3822 of 2018 (Sudheer Kumar v. State of U.P. and Another) at page no. 48 of the paper book, wherein it is recorded that since the victim is adult and has voluntarily entered into wedlock with the revisionist, therefore, she is permitted to live a life as per her wish along with her husband. Drawing attention to these documents, it is argued that the charge-sheet in the present case has been filed erroneously under the above-mentioned sections as no case under the aforesaid sections is made out and the prosecution against the accused-applicant is a malicious one and the same needs to be quashed.
Per contra, learned A.G.A., vehemently opposed the prayer and argued that as per education certificate of the victim, her age is less than 18 years. As per the education certificate at page no. 45 of the paper book, date of birth of the victim is recorded as 20.05.2001, by which her age is found to be 17 years and 4 months on the date of occurrence, which is stated in the order of Chief Judicial Magistrate dated 04.10.2018 annexed at page nos. 45 and 46 of the paper book. It is argued that the victim being minor, could not have done marriage with the accused-applicant and therefore, the Investigating Officer has rightly filed charge-sheet against the applicant under Section 3/4 of the POCSO Act and other sections mentioned above.
I have gone through the F.I.R. It is mentioned in it by the opposite party no. 2/deceased that on 17.05.2016, the accused-applicant had enticed away his daughter, aged about 15 years at about 08.00 A.M. On 18.05.2016, the accused- applicant had left her daughter in front of his house. Thereafter, the victim had narrated the entire happening regarding the said incident and had stated that the accused-applicant had committed rape upon her.
After investigation, the police has submitted charge-sheet under the aforesaid sections, after having recorded the statement of eight witnesses. The veracity of the said statements cannot be scrutinized in proceedings under Section 482 of Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of R.P. Kapur v. The State of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. v. P.P. Sharma, AIR 1991 SC 1260 and lastly Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
In view of above, the prayer for quashing the charge-sheet as well as the entire proceedings in the aforesaid case is refused.
However, the applicants may approach the trial court to seek discharge, if so advised and before the said forum, they may raise all the pleas which have been taken by them here. If such application is made, the same shall be decided by the trial court in accordance with law.
The applicants may appear before Committal Court within 30 days to get their case committed to the Court of Sessions so that the accused may move discharge application before it.
For a period of 30 days from the date of order, no coercive action shall be taken against the applicants, but if the accused does not appear before the Committal Court, the said court shall take coercive steps to procure their attendance.
With aforesaid observations/directions, this application stands finally disposed of.
Order Date :- 26.8.2019
I. Batabyal