Allahabad High Court
Atul Tewari vs State Of U.P. Thru. Prin. Secy. (Home) ... on 28 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. - 2132 of 2022 Applicant :- Atul Tewari Opposite Party :- State Of U.P. Thru. Prin. Secy. (Home) And Others Counsel for Applicant :- Siddhartha Sinha,Mohammad Zeeshan Lari Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State as well as Shri Krishankant, learned Advocate appearing for respondent no. 2 who has filed vakalatnama which is taken on record.
This petition has been filed seeking quashing of the order dated 12.04.2022 passed by the learned Special Judge POCSO Act, main Court, Lucknow, with a further direction to the Chief Medical Officer to determine the radiological age of the prosecutrix along with following directions:-
"(ii) direct the Police to verify the genuineness of the age mentioned in the High School Mark Sheet of the Prosecutrix.
(iii) direct the Chief Medical Office to determine the radiological age of the Prosecutrix of Crime No./FIR No.189/2022 u/s 376, 506 IPC & Section 3, 4, 5, 6 POCSO Act, at PS- Gomti Nagar, District Lucknow.
(iv) direct the Police Investigating officer of Crime No/FIR No.189/2022 u/s 376, 506 IPC & Section 3, 4, 5, 6 POCSO Act, at PS- Gomti Nagar, District Lucknow to not close/conclude the investigation until the real age of the prosecutrix is determined."
Learned counsel for the petitioner submits that according to the prosecution case, the date of birth of the prosecutrix is 15.11.2005. The prosecutrix has passed her high school examination from Modern Academy, Gomti Nagar where her date of birth is recorded as 15.11.2005.
Learned counsel for the petitioner further submits that he has come to know from reliable sources that actually the age of the prosecutrix is 15.11.2004 and according to Aadhar Card she was 19 years at the time of commission of offence.
It is further submitted that the Chief Medical Officer, Lucknow has declined to ascertain the radiological age of the prosecutrix since there is a high school marksheet of the prosecutrix and in that her age is mentioned as 15.11.2005.
It is further submitted that the petitioner is seriously prejudiced by the action of Chief Medical Officer and no prejudice will be caused to the prosecution if the radiological age of the prosecutrix is ascertained.
Learned A.G.A. as well as private respondent has submitted that the petitioner being the accused has no right of audience at the per-cognizance stage. In this regard he has relied on the judgment of the Division Bench of this Court reported in "(2021) 115 SCC 70, Ajay Kumar Pandey Vs. State of U.P. and others".
It is further submitted that the statement as well as pleading made by the petitioner that age of the prosecutrix is actually 15.11.2004, has no logical stand. It is merely a bald assertion without there being any substance in it and no documentary proof has been filed by the petitioner in support of his contention in the petition.
It is further submitted that on the basis of bald assertion it cannot be said that the high school marksheet and the date of birth recorded therein of the prosecutrix is disputed. It is also submitted that since the date of birth in the high school marksheet is not disputed, therefore, there is no occasion for determining the radiological age of the prosecutrix.
On due consideration to the argument advanced and perusal of the record as well as considering the law laid down by the Division Bench of this Court in the case of Ajay Kumar Pandey (supra), I am of the opinion that at the per-cognizance stage, the petitioner being the accused has no right to interfere in the investigation. The investigation is still pending and at this stage, it will not be appropriate to issue any direction to the investigating officer as prayed by the petitioner. Once the police report is filed and the cognizance stage is over, the petitioner will be well within the rights may challenge the proceedings at the appropriate stage. The petition being premature and devoid of merits is dismissed accordingly.
Order Date :- 28.4.2022 R.C.