Allahabad High Court
Gufran Shaikh @ Gani Munawwar vs State Of U.P. And Another on 28 July, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 10258 of 2021 Applicant :- Gufran Shaikh @ Gani Munawwar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Aftab Alam Counsel for Opposite Party :- G.A.,Anand Kumar Singh Hon'ble Gautam Chowdhary,J.
Heard Sri Aftab Alam, learned counsel for the applicant, Sri Anand Kumar Singh, learned counsel for opposite party no.2 and learned A.G.A. and also perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Special Session Trial No. 926 of 2020 (State Vs. Gufran Shaikh), arising out of Case Crime No.356 of 2019, under Sections 363, 366, 376 I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) SC/ST (Prevention of Atrocities Act), 1989, Police Station Badagaon, District Varanasi, pending in the court of Additional District and Sessions Judge/ Special Judge (POCSO Act), Varansi as well as to quash charge-sheet dated 10.10.2020 and also to quash the cognizance order dated 08.12.2020 passed in the aforesaid case.
Learned counsel for the applicant submits that the daughter of the opposite party no.2 has solemnised marriage out of her own free and consent and is residing with the applicant without any threat or coercion. He further submits that perusal of the statement of the victim recorded under Section 164 Cr.P.C. goes to show that the victim has not levelled any allegation against the applicant and that she has solemnised marriage with the applicant. He next submits that since the victim has solemnised marriage with the applicant out of her own volition, therefore, the proceedings against the applicant is bad in law and is liable to be quashed. Learned counsel for the applicant has placed reliance on a judgement of Meghalaya High Court in the case of Shri. Olius Mawiong & Anr. Vs. State of Meghalaya & Anr. in support of his contention.
Pertinent to the present case, relevant portion of the aforesaid judgement is reproduced hereinbelow:-
"16. The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled.
17. This is precisely the case here where a minor girl who is living with a man as husband and wife with the blessings of the family members, has to witness her husband being prosecuted under the POCSO Act only because of her age being under 18 years. In fact, in the present case, the age of the minor girl is said to be about 17 years and 7 months which is only about 5 months less than 18 years at the time of reportage of the alleged offence.
18. Be that as it may, this Court is in agreement with the opinion expressed by some of the Hon'ble High Courts on this issue.
19. The learned counsel for the petitioners referring to the case of Teiborlang Kurkalang (supra), wherein in a similarly situated case, this Court has allowed the prayer made therein and has set aside the FIR and quashed the related proceedings before the Trial Court.
20. The ratio in the case of Teiborlang Kurkalang was arrived at by following the precedent laid down in cases of similar nature, particularly the case of Ranjit Rajbanshi (supra) also relied upon by the petitioners wherein at para 47, 48 and 49 of the same, the Hon'ble Calcutta High Court has opined as follows:
"47. In the present case, the victim girl was admittedly 16 years old and studied in Class XII at the relevant point of time. She was not nave enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.
48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as a unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.
49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."
21. Similarly, in the case of Vijayalakshmi (supra), the Hon'ble Madras High Court at para 11 and 18 has expressed as under:
11. ?There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.
18. ... Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act."
22. In the light of the above, this Court is convinced that the case of the petitioners has to be looked at pragmatically, taking the above observations into consideration to give relief to the parties. This will meet the ends of justice as is inherently found in this Court's exercise of the power under Section 482 Cr.P.C.
23. This petition is accordingly allowed. The FIR in Pynursla P.S. Case No 30 (5) of 2021 under Section 5 (j) (ii) (q)/6 of the POCSO Act, 2012 and the proceedings in Special POCSO Case No. 63 of 2021 are hereby set aside and quashed.
24. Petition disposed of. No costs."
Learned counsel for the opposite party no.2 and A.G.A. could not dispute the facts noted above.
Having heard learned counsel for the applicant and having perused the record, it transpires that the victim had eloped out of her own free will, love and affection and she had solemnised marriage without any force or coercion. At present, both the applicant and the victim are living happily as husband and wife. The victim in her statement recorded under Section 164 Cr.P.C. she has unambiguously stated that she has gone out of her own volition and after that perform marriage with the applicant.
Perusal of the aforesaid judgment clearly bring out the settled position in law.
Considering the facts in entirety, this Court is of the opinion, that no useful purpose may be served in proceeding against the applicant and thus the entire proceedings of the aforesaid case is liable to be quashed.
Accordingly, the proceedings of Special Session Trial No. 926 of 2020 (State Vs. Gufran Shaikh), arising out of Case Crime No.356 of 2019, under Sections 363, 366, 376 I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) SC/ST (Prevention of Atrocities Act), 1989, Police Station Badagaon, District Varanasi, pending in the court of Additional District and Sessions Judge/ Special Judge (POCSO Act), Varansi as well as charge-sheet dated 10.10.2020 and also the cognizance order dated 08.12.2020 passed in the aforesaid case, are quashed.
Order Date :- 28.7.2022 Abhishek Singh