Court No. - 49
Case :- APPLICATION U/S 482 No. - 28748 of 2018 Applicant :- Sunil Sahani Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Counter affidavit filed on behalf of State is taken on record.
2. Learned counsel for the applicant is permitted to implead Sushila as opposite party No.4, during the course of the day.
3. Heard learned counsel for the applicant and learned A.G.A. for the State.
4. The present 482 Cr.P.C. application has been filed to quash the impugned orders dated 28.05.2018 and 26.07.2018 passed by the Additional Sessions Judge, Court No.9/Special Judge (POCSO Act), Gorakhpur and Additional Sessions Judge, Court No.7/Special Judge (POCSO Act), Gorakhpur in Case Crime No. 153 of 2018, under Sections- 363, 366, 376 IPC and 3/4 Protection of Children from Sexual Offence Act, 2012, Police Station- Sahjanwa, District- Gorakhpur.
5. Learned counsel for the applicant submits that according to the documentary evidence including the marriage registration certificate, the age of the victim was about 19 years on the date of the incident. It is also stated that in her medical examination, she was found to be about 19 years of age. In such circumstances, it is stated that the learned Court below has erred in not acting on the statement of the alleged victim wherein she falsified the prosecution case and clearly stated that her desire to live with her husband.
6. Relying on the recent judgment of the Supreme Court in the case of Suhani Vs. State of U.P. and Another in Civil Appeal No. 4532 of 2018 decided on 26.04.2018, it has been submitted that victim could not have been sent to the Child Welfare Committee (Pratiksha), Khorabar, Gorakhpur.
7. Then referring to the order dated 28.05.2018 passed by the Additional Sessions Judge, Court No.9/Special Judge (POCSO Act), Gorakhpur, it has been submitted that at that stage the parents of the said opposite party No.4 had not appeared and had not claimed the custody of the said opposite party No.4. Thereafter, applicant had filed an application before the opposite party No.4 to be released. This application of the applicant was rejected by order dated 26.07.2018 passed by Additional Sessions Judge, Court No.7/Special Judge (POCSO Act).
8. Then reference has been made to the medical opinion dated 23.05.2018 prepared by the Chief Medical Officer, Gorakhpur which was prepared during the course of investigation. From that report, it appears that according to the medical opinion, the age of the applicant on the date of her examination was found to be about 19 years. This fact has also been taken note by learned court below.
9. In view of the fact that the opposite party No.4 upon being asked stated that she wants to be set free and she has no mind to continue to stay at the Child Welfare Committee (Pratiksha), Khorabhar, Gorakhpur.
10. Considering the fact that opposite party No.4 does appear to have attained the age of majority as per the medical opinion and further considering the fact that in any case she is not charged with any offence and she further express her mind to be set free, it does not appear to be any use or purpose to allow her detention to continue and further since it amounts to curtailment of her fundamental right to liberty.
11. Consequently, the orders dated 28.05.2018 and 26.07.2018 passed by the Additional Sessions Judge, Court No.9/Special Judge (POCSO Act), Gorakhpur and Additional Sessions Judge, Court No.7/Special Judge (POCSO Act), Gorakhpur are hereby set aside.
12. Let the opposite party No.4, Sushila be released from Court. She may proceed as per his will. The Constable, Shashikiran Ragani, C.P. No. 1703 and Jyoti Singh, Warden, Child Welfare Committee (Pratiksha), Khorabhar, Gorakhpur who have brought her to this Court are discharged from any further obligation.
Order Date :- 19.9.2018 Shubhankar Thakur