Jharkhand High Court
Khushbu Kumari vs The State Of Jharkhand And Anr on 18 January, 2017
Equivalent citations: 2018 (2) AJR 70
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 51 of 2016
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Khushbu Kumari ... ... Petitioner
Versus
1. The State of Jharkhand
2. Bhagwat Sao ... ... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Umesh Kumar Choubey, Advocate
For the State : Mr. Ashish Jha, A.P.P.
For the O.P. No. 2. : Mr. Sajid Yunus Warsi, Advocate
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13/18.01.2017Heard Mr. Umesh Kumar Choubey, learned counsel for the petitioner and Mr. Ashish Jha, learned A.P.P. for the State as well as Mr. Sajid Yunus Warsi, learned counsel for the opposite party no. 2.
This application is directed against the order dated 21.12.2015 passed in Misc. Case No. 2 of 2015 by which the learned Additional Sessions Judge-1st Cum- Special Judge (Protection of Children from Sexual Offence), Hazaribagh has declared the opposite party no. 2 to be a juvenile.
It has been submitted by the learned counsel for the petitioner that the first date of occurrence is of November, 2013 and subsequent thereto the act of establishing physical relationship with the petitioner by the opposite party no. 2 continued unabated and ultimately on 22.03.2015 on the refusal on the part of the opposite party no.2 to solemnize marriage with the petitioner the matter was reported which subsequently led to institution of the First Information Report. It has been submitted that the act of the opposite party no. 2 was a continuous offence which fact has not been properly appreciated by the learned court below as the juvenility of the opposite party no. 2 has been declared merely on the basis of the first date of occurrence i.e. November, 2013 without considering the subsequent act carried out by the opposite party no.2. It has been submitted that even as per 164 Cr.P.C statement of the petitioner it would appear that on 23.03.2015 the opposite party no. 2 had once again established physical relationship with the petitioner and such statement has not been taken into consideration as the opposite party no. 2 was definitely a major as according to the Matriculation Certificate the -2- date of birth of the opposite party no. 2 is 12.12.1996. In support of his contention learned counsel for the petitioner has submitted that the offence itself continued and the question of juvenility could be decided on the last date of occurrence. He has relied upon on the judgment passed in the case of Vimal Chadha versus Vikas Choudhary & Anr. reported in 2008 (3) Eastern Criminal Cases 253 (SC).
Mr. Sajid Yunus Warsi, learned counsel appearing for the opposite party no. 2 has vehemently opposed the prayer made by the petitioner and has submitted that in formal First Information Report the incident has wrongly been mentioned as November, 2013 to 22.03.2015. It has been submitted that the First Information Report itself reveal that on November, 2013 the petitioner is alleged to have established physical relationship with the opposite party no. 2 and so far as 22.03.2015 is concerned the same is with respect to the refusal on the part of the opposite party no. 2 to solemnize marriage with the petitioner which cannot be construed to be an offence u/s 376 of the Indian Penal Code or u/s 4 of the POCSO Act, 2012. Learned counsel for the opposite party no. 2 further submits that the learned court below while conducting the inquiry and on examining the witnesses has rightly taken November, 2013 as the date of occurrence while declaring the opposite party no. 2 to be a juvenile. It has therefore been submitted that no error has been committed by the learned court below and therefore no interference is necessitated in the impugned order dated 21.12.2015.
It appears from the First Information Report that the allegation made against the opposite party no. 2 is of establishing physical relation with the petitioner which started in November, 2013. It further appears that on 23.03.2015 the opposite party no.2 refused to solemnize marriage with the petitioner which led the petitioner to inform her relations about the sexual assault committed upon her by the opposite party no.2 and which ultimately led to institution of Sadar (Mufassil) P.S. Case No. 333 of 2015. The allegations made in the First Information Report has been substantiated by the petitioner in her statement recorded u/s 164 of the Cr.P.C. which to a certain extent reflect that the offence of establishing physical relationship on the pretext of -3- marriage continued unabated. The learned court below has merely taken into consideration the first date of occurrence of November, 2013 in coming to the conclusion that the opposite party no. 2 was a juvenile on the date of such occurrence. No consideration has been made with respect to the statement of the informant/petitioner recorded u/s 164 of the Cr.P.C. to conclusively prove that the opposite party no. 2 was indeed a juvenile on the date of occurrence.
In such circumstances, therefore, the impugned order dated 21.12.2015 passed in Misc. Case No. 2 of 2015 being bereft of the necessary facts which has been stated above is unsustainable in the eye of law and the same is hereby quashed and set aside. The matter is remanded back to the learned Additional Sessions Judge-1st Cum- Special Judge (Protection of Children from Sexual Offence), Hazaribagh to pass a fresh order in accordance with law after hearing the parties and after consideration of the materials available on record. The exercise indicated above should be concluded within a period of three weeks' from the date of receipt/production of a copy of this order.
(R. Mukhopadhyay, J.) Alok/-