Allahabad High Court
Rohan Kashyap vs State Of U.P. Thru. Its Prin. Secy. Home ... on 7 April, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- APPLICATION U/S 482 No. - 1613 of 2022 Applicant :- Rohan Kashyap Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home Deptt. Civil Secrtt. Lko. And Others Counsel for Applicant :- Sandeep Yadav,Naved Ali Counsel for Opposite Party :- G.A., Pawan Bhaskar Hon'ble Karunesh Singh Pawar,J.
The petition has been filed under Section 482 CrPC for quashing cognizance and summoning order dated 22.3.2017, passed by Addl. Sessions Judge/POCSO-5, Lucknow under sections 363, 366, 504, 506 I.P.C. and sections 16 and 17 of Protection of Children from Sexual Offences Act in F.I.R. No.98 of 2017, charge-sheet dated 17.3.2017, P.S. Thakurganj, district Lucknow.
Heard learned counsel for the petitioner and learned A.G.A. for the State as also Mr. Pawan Bhaskar, Advocate who has filed vakalatnama for respondent No.2 along with short counter affidavit, which is taken on record.
Issue notice to respondent No.3 returnable at an early date.
Learned counsel for the petitioner submits that the first information report was lodged by respondent No.3 who is mother of respondent No.2 against the petitioner, his mother and sister which was registered as FIR No.98 of 2017 under sections 363, 366, 504, 506 I.P.C. and sections 16 and 17 of Protection of Children from Sexual Offences Act. Statement of the victim was recorded under Section 164 CrPC wherein she has categorically stated that she on her own accord and free will went with the applicant.The investigating officer has submitted charge-sheet against the petitioner under sections 363, 366, 504, 506 I.P.C. and sections 16 and 17 of Protection of Children from Sexual Offences Act exonerating mother and sister of the petitioner.
It is submitted on behalf of the petitioner that the first information report was lodged with the aid of Section 120-B I.P.C. and sections 16 and 17 of Protection of Children from Sexual Offences Act along with other sections on the allegation that daughter of respondent No.3 was kidnapped by the petitioner with the aid of his mother and sister. However, when the mother and sister of the petitioner have been exonerated and Section 120-B I.P.C. has been dropped, there was no occasion for the investigating officer to file charge-sheet under sections 16 and 17 of Protection of Children from Sexual Offences Act which is a grave error as for filing charge-sheet under sections 16 and 17 of Protection of Children from Sexual Offences Act, there has to be more than one accused for aiding and abeting the offence. Therefore, charge-sheet under sections 16 and 17 of Protection of Children from Sexual Offences Act could not have been filed.
Marriage between the petitioner and respondent No.2 was solemnised at Arya Samaj Mandir, Aliganj, Lucknow and on 17.1.2021, they have been blessed with a son and they are living peacefully.
Learned counsel for respondent No.2 has no objection in case the proceedings are stayed.
On due consideration to the fact that the prosecutrix went along with the petitioner on her own accord and free will and charge-sheet has been filed only against the petitioner and Section 120-B I.P.C. has been dropped by the Investigating Officer, prima facie, it appears that the charge-sheet could not have been filed under sections 16 and 17 of Protection of Children from Sexual Offences Act. The girl was 17 years of age at the time of incident and in view of judgment in Shaheen Parveen and another versus State of U.P. and others [2015(7)ADJ 713 (DB)(LB)], prima facie case for interim relief is made out.
In view of the above, the impugned proceedings shall remain in abeyance, till further orders of the Court.
List on 28.4.2022.
Order Date :- 7.4.2022 kkb/