Court No. - 65
Case :- APPLICATION U/S 482 No. - 35823 of 2019
Applicant :- Tausif @ Bade
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Jitendra Pal Singh,Pradeep Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Pradeep Kumar Singh, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the Charge-Sheet No. 338 of 2018 dated 16.11.2018 as well as entire criminal proceeding of S.T. No. 142 of 2018 arising out of Case Crime No. 393 of 2018 under Sections 363, 366, 376 I.P.C. and 3/4 of P.O.C.S.O. Act, P.S.
Jahanabad, District Pilibhit.
Learned counsel for the applicant argued that O.P. No.2 is father of the victim and victim has married the accused applicant regarding which he has drawn attention of the Court towards page no. 24 of the paper book in which the victim has stated that she is 19 years old. 15 days ago, she had gone with the accused, thereafter on the next date, she married the accused applicant out of her own free will in Allahabad. Further attention has also been drawn of this Court towards the order of this Court passed in Habeas Corpus Writ Petition No. 54 of 2019 dated 20.02.2019 wherein reference is made of the statement of victim who had stated before court that she is 19 years old and is not literate and had gone with the accused applicant out of her own free will and had married the applicant. The attention is also drawn towards the observation made by the Bench which is as follows:
"In view of the categorical statement made by the corpus before this Court that she is an adult, even as per the record she is an adult and even by appearance and the manner in which she has faced the Court, this Court has got no doubt that she is an adult and is well aware of her rights, a case for grant of indulgence has been made out."
Citing the above piece of evidence, learned counsel for the applicant has argued that I.O. has over-looked all these aspects and has submitted charge-sheet in the present case in routine manner which is nothing but abuse of process of law and the same needs to be quashed.
Learned A.G.A. has vehemently opposed the prayer of quashing and has drawn attention towards the statement of informant which is annexed at page no. 26 of the paper book in which he has stated that his daughter had studied up to class-V and that he was providing Transfer Certificate. He has stated the age of the victim to be 16 years, therefore in view of the above, it is argued that the age of the victim is required to be determined in accordance with the provision of Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015 as has been held in Crl. Misc. Writ Petition No. 20816 of 2016, Nisha Naaz alias Anuradha and Another Vs. State of U.P. & 2 others decided on 6.02.2019 in which decision of Suhani Vs. State of U.P., 2018 SCC Online SC 781 has been distinguished and the finding of Hon'ble Apex Court in Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263 has been followed which provides that victim's age shall also be decided following the same provision as are followed for determining the age of a juvenile which provides as follows:-
"94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —
i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
It would be further pertinent to mention here the judgment of Apex Court rendered in Independent Thought vs. Union of India and another, (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are as under:
"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."
I have gone through the F.I.R.
In F.I.R., it is mentioned by O.P. No.2 that on 26.10.2018 in the after-noon at 12:00 noon, his daughter aged about 16 years was enticed away by the applicant in absence of O.P. No.2 and his wife. He entreated before the family members of the accused applicant to return his daughter but she was not returned. He was threatened and abused also. The police after lodging the F.I.R. investigated the case after recording the statement of as many as five witnesses has submitted charge-sheet which includes the statement of informant as well as his wife. The statement given by the witnesses cannot be disbelieved in proceeding under Section 482 Cr.P.C.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added) 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, 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.
The prayer for quashing the proceedings is refused.
Since it has been apprised by learned counsel for the applicant that accused applicant is already on bail, 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.
With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 26.9.2019
A. Mandhani