Allahabad High Court
Monu @ Mukesh Kumar vs State Of U.P. And Another on 16 January, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Order reserved on 20.12.2018 Order delivered on 16.1.2019 Court No. - 53 Case :- APPLICATION U/S 482 No. - 19550 of 2015 Applicant :- Monu @ Mukesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Sharma Counsel for Opposite Party :- Govt. Advocate, Rajesh Kumar Dubey Hon'ble Umesh Chandra Tripathi,J.
1. Heard Sri Dinesh Kumar Sharma, learned counsel for the applicant, Sri Om Prakash, learned A.G.A., for the State and Sri Rajesh Kumar Dubey, learned counsel for the opposite party No. 2.
2. This application under Section 482 Cr.P.C., has been filed for quashing the entire proceedings of Criminal Case No. 932 of 2015 (State Vs. Monu @ Mukesh Kumar) arising out of Case Crime No. 14 of 2015 under Sections 363 and 366 IPC, Police Station Dadri, District Gautam Budh Nagar pending in the Court of Addtional Sessions Judge, Fast Track Court, Gautam Budh Nagar.
3. Brief facts of the case are that Sri Tej Pal Singh has lodged first information report on 13.1.2015 at 5:45 PM with allegation that applicant (Monu @ Mukesh Kumar) and his brother Bhupesh have abducted the prosecutrix aged about 16 years, daughter of informant on 6.12.2014 at about 4:00 PM. After investigation, police has submitted chargesheet against applicant Monu @ Mukesh Kumar for the offence punishable under Sections 363 and 366 IPC.
4. Learned counsel for the applicant relying upon the judgment of Hon'ble Apex Court in Suhani and Anr., Vs. State of U.P. and others reported in 2018 SCC OnLine 781 contended that as per medical report, prosecutrix is major. The actual date of birth of prosecutrix is 10.5.1995 and in school certificate, her date of birth is wrongly mentioned as 10.5.1998. At the time of occurrence, she was in love and affection with applicant Monu @ Mukesh Kumar. Both have solemnized their marriage according to Hindu customs and rites on 10.9.2014 at Arya Samaj Mandir, Sector-9, Vijay Nagar, District Ghaziabad. Their marriage was registered on 21.11.2014 before the Registrar, Hindu Marriages, District Ghaziabad and presently, they have a child born from their wedlock. Accordingly, offence under Sections 363 and 366 IPC is not made out against the applicant.
5. Learned A.G.A., and learned counsel for the opposite party No. 2 (Tej Pal Singh) contended that as per high school certificate, prosecutrix is minor on the date of occurrence. As such, offence under Sections 363 and 366 IPC is made out against the applicant, even so, prosecutrix has gone with the applicant with her own sweet will.
6. In Suhani's case (supra), Hon'ble Apex Court has not laid down the universal principle that the age of the prosecutrix/victim shall be determined on the basis of medical report and not on the basis of school certificate. In that particular case, Hon'ble Apex Court got medically examined the prosecutrix by the concerned department of All India Institute of Medical Sciences, New Delhi. On the basis of opinion of Institute, prosecutrix was declared major by Apex Court.
7. How the age of the victim/prosecutrix shall be determined is discussed by the Apex Court in Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263. Hon'ble Apex Court has held as under:-
"20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-
rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
8. Accordingly, the age of victim/prosecutrix shall be determined as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Only if it is found that school certificate is fabricated or date of birth mentioned in the school certificate is not correct, other document may be relied for determination of the age of victim/prosecutrix. In this particular case, in the high school certificate, date of birth of prosecutrix is mentioned as 10.5.1998. Accordingly, on the date of occurrence i.e. 6.12.2014, she was about 16 years, 7 months. At the cognizance stage, it cannot be said that the high school certificate is either fabricated or date of birth of the prosecutrix mentioned in the high school certificate is not correct. On the basis of ossification test, medical officer, Gautam Budh Nagar opined on 15.1.2015, that age of the prosecutrix is above 18 years and below 22 years. Whether date of birth of the prosecutrix mentioned in the high school certificate is correct or not, will be decided on the basis of evidence adduced during the trial. It is not possible at this stage to come at any conclusion about the correctness of the date of birth of the prosecutrix mentioned in the high school certificate. As such, at this stage, it cannot be said that offence under Sections 363 and 366 IPC is not made out.
9. A three Judge Bench of Hon'ble Apex Court in Parbatbhai Aahir & Ors. v. State of Gujarat & Ors. AIR 2017 SC 4843, after carefully perusing and analyzing the observations made by Hon'ble Apex Court previously in various cases, laid down the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
10. Accordingly, to secure the ends of justice, criminal proceedings may be quashed in exercise of jurisdiction under Section 482 Cr.P.C., even though, cognizable offence is made out. This is admitted fact that applicant Monu @ Mukesh Kumar and prosecutrix have solemnized their marriage on 10.9.2014. Their marriage was registered on 21.11.2014 before Registrar, Hindu Marriages, District Ghaziabad. They have a child from their wedlock. From perusal of the bail order dated 14.5.2015 passed by this Court in Criminal Misc. Bail Application No. 16744 of 2015 (Monu @ Mukesh Kumar Vs. State of U.P.), it appears that applicant was in custody for more than 4 months.
11. In such peculiar facts and circumstances of the case, I am of the view that no useful purpose would be served to continue the proceedings of the above mentioned case. Accordingly, the entire proceedings of Criminal Case No. 932 of 2015 (State Vs. Monu @ Mukesh Kumar) arising out of Case Crime No. 14 of 2015 under Sections 363 and 366 IPC, Police Station Dadri, District Gautam Budh Nagar is hereby quashed.
12. Consequently, this application under Section 482 Cr.P.C., is allowed.
Order Date :- 16.1.2019 Jaswant