Allahabad High Court
Mustakeem And Anr vs State Of U.P. And Anr on 1 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 65 Case :- APPLICATION U/S 482 No. - 36908 of 2019 Applicant :- Mustakeem And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Manoj Singh Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard learned counsel for the applicants Shri Manoj Singh and in opposition Shri G.P. Singh, learned A.G.A. for the State and perused the record.
2. This application under Section 482 of Cr.P.C. has been moved on behalf of the applicants with a prayer to quash the Charge Sheet No. 42A of 2019 dated 27.05.2019 as well as the entire proceedings in S.S.T. No. 96 of 2019 (State v. Mustakeem and Another), arising out of Case Crime No. 0011 of 2019, under Sections 363, 366, 368, 376 of I.P.C. and Section 3/4 of POCSO Act, Police Station - Kakrauli, District - Muzaffar Nagar, pending in the court of Additional Sessions Judge, Court No. 8, Muzaffar Nagar.
3. It is argued by learned counsel for the applicants that daughter of opposite party no. 2, who is victim in this case, has married the accused-applicant no. 1 Mustakeem. The marriage certificate is annexed at Page No. 26 of the Paper Book. The said marriage has also been got registered, registration certificate whereof is annexed at Page No. 28 of the Paper Book. In the medical examination, the C.M.O. has found her age to be between 18-19 years. The Medical Certificate is annexed at Page No. 35 of the paper book. In the statement under Section 164 of Cr.P.C., she has stated in favour of the accused that she has already married him. Her mother used to quarrel with her and told her that she should go somewhere and consume poison and when her mother came to know about the fact that she had married the accused, a false F.I.R. has been lodged against the applicant. She had gone with the applicant on her own freewill. The I.O. has erroneously submitted charge-sheet in this case, which is nothing but sheer abuse of the process of court and simply on the basis of the school-leaving certificate of the victim, in which her date of birth is recorded at 21.04.2002, she has been taken to be a minor girl.
4. On the other hand, learned A.G.A. vehemently opposed the quashing of the charge-sheet as well as the criminal proceedings and pointed out the age of the victim to 16 years 8 months and 24 days i.e. less than 18 years on the date of the occurrence. Hence, she was minor. In view of that, she was not qualified to give consent for marriage. Therefore, the I.O. has not committed any mistake in filing charge-sheet against the applicant.
5. I have gone through the F.I.R. Opposite party no. 2, father of the victim, has mentioned that on 14.01.2019, in the morning, Billo, the elder sister of accused-applicant no. 1 Mustakeem had come to the house of opposite party no. 2 and had taken away with her his daughter/victim. Prior to that also, on 13.01.2019, Billo had come to opposite party's house and often used to talk to the victim. On the said date, when she had been taken away and did not return for long and could not be found, opposite party no. 2 subsequently came to know that Billo and her mother had facilitated fleeing away of the victim with the main accused-applicant Mutakeem and in this occurrence, co-accused Aasif (applicant no. 2 in the present case) was also involved in facilitating the victim in fleeing away with the applicant Mustakeem.
6. After investigation, charge-sheet has been submitted by the I.O. after recording statement of four witnesses, in the above-mentioned sections. It is settled position of law that age of the victim will be determined as per provision of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 as has been held in Criminal Misc. Writ Petition No. 20816 of 2016 (Nisha Naaz alias Anuradha and Another v. State of U.P. & 2 others) decided on 6.02.2019 in which decision of Suhani v. State of U.P. reported in 2018 SCC Online SC 781 has been distinguished and the finding of Hon'ble Apex Court in Jarnail Singh v. 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."
7. Further reliance has been placed upon the law laid down by Hon'ble Apex Court in Independent Thought vs. Union of India and another reported in (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are as under :-
"1. The issue before us is a limited but one of considerable public importance whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape Exception 2 to Section 375 of the Penal Code, 1860 (IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil."
"107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC in the present case W.P. (C) No. 382 of 2013 Page 68 this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus."
8. In view of the above position of law, it is apparent that the victim being minor as per school-leaving certificate, the fact as to whether she was major or minor on the date of occurrence will have to be decided by the trial court and the same cannot be determined in proceedings under Section 482 of Cr.P.C.
9. Time and again, it has been highlighted by Hon'ble Apex 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, Hon'ble Apex 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 supplied)
10. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of R.P. Kapur v. The State of Punjab, AIR 1960 SC 866, State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. v. P.P. Sharma, AIR 1991 SC 1260 and lastly Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
11. In view of above, the prayer for quashing the charge-sheet as well as the entire proceedings in the aforesaid case is refused.
12. However, the applicants may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, they may raise all the pleas which have been taken by him here.
13. The applicants shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law.
14. For a period of 30 days, no coercive action shall be taken against the accused applicants in the aforesaid case. But if the accused do not appear before the court below, the court below shall take coercive steps to procure their attendance.
15. With the aforesaid observations/directions, the instant application stands disposed of.
Order Date :- 1.10.2019 I. Batabyal