Delhi High Court - Orders
State (Nct) Of Delhi vs Shehnawaz @ Bhoora on 23 March, 2023
Author: Amit Sharma
Bench: Amit Sharma
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 159/2019
STATE (NCT) OF DELHI ..... Petitioner
Through: Mr. Aman Usman, APP for the State
with S.I. Rooma Yadav, P.S. Paschim
Vihar.
Versus
SHEHNAWAZ @ BHOORA ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
ORDER
% 23.03.2023
1. The present petition under Section 397 read with Section 482 of the Cr.P.C. seeks setting aside of the order dated 30.11.2018 in SC No. 261/16 arising out of FIR No. 108/2012 registered at P.S. Mianwali Nagar, passed by Ms. Vrinda Kumari, learned ASJ-07, Special Judge (POCSO) Act, West District, Tis Hazari Courts, Delhi, whereby the learned ASJ has discharged the respondent herein for offences under Sections 363/376/366 of the IPC.
2. The case of the prosecution, as per the chargesheet is that the prosecutrix was found missing by her father (complainant) on 12.05.2012 at about 06:30 AM. An FIR was initially registered under Section 363 of the IPC. Despite efforts, the prosecutrix could not be traced. On 12.08.2014, the prosecutrix reported at the police station alongwith her child and informed Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24 the Investigating Officer that she was married to the respondent herein. It is stated that she provided copies of Nikahnama as proof of her marriage with the respondent herein.
3. It is further stated that the statement of the prosecutrix was recorded under Section 164 of the Cr.P.C., wherein she stated that she had left with the present respondent for Ajmer and before leaving, they had married each other. In the said statement, the prosecutrix further stated that she had left with the respondent willingly and no one lured or enticed her. It is further stated that she had a one year old daughter with the present respondent.
4. As per the case of the prosecution, the school leaving certificate collected by the Investigating Officer reflected the date of birth of the prosecutrix as 13.09.1996. However, it is further noted that the birth certificate bearing no. 223954 dated 05.01.1996 issued by the Registrar (Birth & Death), Nangloi, Delhi, provided by the prosecutrix reflected her date of birth as 12.02.1995. As per the said birth certificate, the prosecutrix was about 16 years and 2 months old on the day when she was found missing and as per the school leaving certificate, the prosecutrix was 15 years and 08 months old at that time.
5. The learned Additional Sessions Judge, while considering the aforesaid case, at the time of consideration on charge, made the following observations:
"6. The record shows that despite having been provided with the copy of Nikahnama, no effort was made by the police to verify the same. Further, the copy of this document was not even filed with the charge sheet by the IO. It was upon the direction of the Court after production of the original Nikahnama by Ld. Counsel for the accused during arguments on point of charge that the IO filed verification report on 21.07.2018. This report of IO suggests that Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24 the person who had solemnized the marriage, namely, Sh. Abdul Kalam said that he was neither priest / Qazi nor did he have any stamp nor did he conduct any process related to Nikah. The statement in writing of Shri Abdul Kalam annexed with the verification report, however, suggests the contrary. As per this statement dated 04.07.2018 of Shri Abdul Kalam, he had got the prosecutrix and accused married on 23.11.2012. He also verified Nikahnama. He stated that the register in which the entries were made got destroyed because of termites. He also stated that the said Nikahnama was signed by one Advocate Sh. Abdul Sattar and two witnesses namely Sh. Islamuddin and Intezar Ahmed apart from Ihe Qazi Sh. Abdul Kalam himself and bride and the bridegroom. He also stated that no ID proof was taken at the time of solemnizing marriage.
7. The record also shows that the prosecutrix as well as the accused have been residing together as husband and wife since 12.05.2012. They have three kids. As has been noted above, the IO did not make any timely effort to verify the Nikahnama and also failed to place it on record alongwith charge sheet. The statement of Sh. Abdul Kalam was recorded about 06 years after he had solemnized marriage between the prosecutrix and the accused. His statement dated 04.07.2018. Therefore, should be considered in the light of such circumstances. He has categorically verified the Nikahnama and that the Nikah was performed by him in presence of two witnesses and an Advocate. Prosecutrix and the accused do not dispute the fact of their marriage. The Court, therefore, does not find any ground to doubt the Nikahnama of the prosecutrix and the accused.
8. Since the prosecutrix was more than 15 years old when she left her home to stay with the accused as his wife, the offence u/s 376 IPC was not made out against the accused in light of Exception 2 to Section 375 IPC which provides as follows :
Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
9. The record also shows that the prosecutrix voluntarily joined the company of the accused after their Nikah was performed on 23.11.2012. In her statement u/s 164 Cr.P.C., she has denied having been lured or enticed by the accused in any manner. In such circumstances and in view of the Judgment of Hon'ble Supreme Court of India in a case titled as „S.Varadarajan vs. State of Madras, 1965 SCR (1) 243', the offence u/s 363/366 IPC is not Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24 made out against the accused.
10. The accused is, therefore, discharged of offences u/s 363/366/376 IPC."
6. The learned Additional Sessions Judge further observed in the impugned order as under:
"11. When the prosecutrix left the protection of her father and family on 12.05.2012, POCSO Act 2012 had not been enacted. This Act came into effect on 14.11.2012. The victim married the accused only on 23.11.2012. There is, however, no cogent material on record to suggest that they entered into physical relationship prior to their marriage. No doubt, on and after 23.11.2012. the victim was still a minor but she contracted a valid Muslim marriage. Even under Section 3 (1) of the Prohibition of Child Marriage Act, 2006, every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. The petition for annulling such child marriage can be filed by the contracting party who was a child at the time of marriage at any time but before the child completes two years of attaining majority. In the instant case, the prosecutrix has not filed any such petition. Thus, under the secular law as well as under the personal law, the marriage between the prosecutrix and the accused is a valid marriage now"
7. Learned APP for the State submits that learned Additional Sessions Judge erred in passing the impugned order inasmuch as the prosecutrix was admittedly a minor when she went missing and therefore, her consent would be vitiated.
8. Having perused the record of the case, this Court is of the opinion that the observations made by the learned Additional Sessions Judge while discharging the present respondent are without any infirmity or illegality.
9. It is well settled that the scope of exercise of powers under Section 397 CrPC is limited. The revisional Court is only required to satisfy itself of the correctness and legality of the findings in the impugned order. The Court Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24 must exercise jurisdiction under Section 397 CrPC only when the decision against which the revision is directed is perverse in law and has been passed by not correctly appreciating or ignoring evidence on record.
10. This court does not find any perversity in the impugned order. The learned ASJ, based on the material on record, has rightly discharged the respondent herein. The Hon'ble Supreme Court, in Dilawar Balu Khurane v. State of Maharashtra, (2002) 2 SCC 135 has observed that while framing charges, the Judge has the power to ascertain whether the materials on record disclose 'grave suspicion' against the accused, which has not been explained. It has been held as under:
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 :
1979 SCC (Cri) 609] )."
11. In view of the facts and circumstances of the case, this Court finds no Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24 reason to interfere with the impugned order. The learned Additional Sessions Judge has correctly appreciated the provisions of law and judicial precedents on the subjet. The present revision petition is dismissed and disposed of accordingly.
12. Pending applications, if any, also stand disposed of.
AMIT SHARMA, J MARCH 23, 2023/ab Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:29.03.2023 12:14:24