Allahabad High Court
Bharat Lal vs State Of U.P. And Anr on 24 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD 1. Court No. - 65 Case :- APPLICATION U/S 482 No. - 35000 of 2019 Applicant :- Bharat Lal Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Krishna Murari Tripathi Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Krishna Murari Tripathi, learned counsel for the applicant and Sri B.A. Khan, learned A.G.A. for the State.
2. This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceeding of Special Sessions Trial No. 38 of 2015 arising out of Case Crime No. 356 of 2014 under Sections 363, 366-A, 376 I.P.C. and 3/4 of P.O.C.S.O. Act, P.S., Myorepur, District Sonbhadra.
3. Learned counsel for the applicant has argued that O.P. No.2 has falsely implicated the accused applicant in the present case. The victim who is daughter of O.P. No.2 has not supported the prosecution version before the trial court where she has been examined as P.W.2, hence this is nothing but malicious prosecution of the accused applicant. He has also drawn attention of this Court towards the order dated 2.09.2014 passed in Writ C No. 41734 of 2014 in which at page no. 23 of the paper book, it is recorded that in Ossification Test, the age of the victim was found to be 19 years, hence, she was major on the date of occurrence.
4. Learned A.G.A. has opposed the prayer of quashing and has further argued that in F.I.R., the age of the victim is mentioned as 15 years. During investigation, the I.O. had found the victim to be minor and accordingly chargesheet has been submitted under the above-mentioned sections including P.O.C.S.O. Act.
5. As regards the present case, it may be mentioned here that it is admitted to the learned counsel for the applicant that victim was less than 18 years as according to the educational record, she was minor on the date of occurrence. 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."
6. I have gone through the F.I.R. which is annexed at page no. 16 in which O.P. No.2 has mentioned that on 20.03.2014 at about 7:00 p.m., his daughter/victim aged about 15 years had gone to attend nature's call with her younger sister, when she did not return, O.P. No.2 had enquired from other daughter as to where the victim is? Thereafter she told him that accused, Bharat Lal had taken her away. Thereafter the O.P. No.2 went towards the house of father of the accused who is co-accused in this case and found that Amrik, his wife and son were consuming liquor and saying that now we will see what happens as the daughters of pandit has been abducted by the accused applicant. After the investigation, the charge-sheet has been submitted against the accused applicant. The statement of victim recorded under Section 164 Cr.P.C. has not been annexed.
7. 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)"
8. 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.
9. Since the trial is already proceeding in the present case, the quashing of the proceeding is refused with the direction that trial court shall decide this case as expeditiously as possible.
10. With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 24.9.2019 A. Mandhani