Gujarat High Court
Jayesh Hiralal Nayak & 6 vs State Of Gujarat on 15 June, 2015
R/CR.RA/221/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER
PASSED BY SUBORDINATE COURT) No. 221 of 2015
==============================================================
JAYESH HIRALAL NAYAK & 6....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
==============================================================
Appearance:
MR V B MALIK, ADVOCATE for the Applicant(s) No. 1 - 7
Ms HANSA PUNANI, APP for the Respondent(s) No. 1
==============================================================
CORAM: HONOURABLE Ms. JUSTICE SONIA
GOKANI 15th June 2015
ORAL ORDER
Aggrieved by the order of learned Sessions Judge, Dhrangadhra in Sessions Case No. 24 of 2014 dated 8th April 2015, the present revision application has been preferred seeking to challenge the order of rejection of discharge application of the applicants-accused vide Exh. 11 in the said Sessions case.
It is the case of prosecution that the prosecutrix and her parents followed Islam. The marriage of prosecutrix with the original accused no. 7 and the applicant no. 1 herein was performed as per the Muslim Personal law and with the consent of the parties the Nikah had been Page 1 of 5 R/CR.RA/221/2015 ORDER performed. Under section 11 of the Protection of Children from Sexual Offences Act, 2012 ["POCSO" for short] so also under section 3 & 16 of the said Act and also under Section 376 read with 114 IPC, after the investigation, the chargesheet had been laid.
It is the case of the applicants that Islam permits marriage at the age of 15 years, therefore, the limitation prescribed under the law for marriage of 18 years for the girl would not come in the way of the applicants. Moreover, the Court added Sections 4 & 17 of the POCSO which are the provisions prescribed for punishment under Section 3 and 16 respectively, that also has aggrieved the applicants.
Learned advocate Mr. Malik appearing for all the applicants has urged that it is an internal dispute of the family which has brought to the fore the factum of child marriage. He has urged that the girl's statement also reveals that the paternal uncle of the girl since did not enjoy good relationship with the family, has complained against such marriage. He urged that the applicants are not only aggrieved by imposition of Section 4 & 17 of the Page 2 of 5 R/CR.RA/221/2015 ORDER POSCO but also for non grant of their application where they made a request for discharge from all the offences. He has fervently urged that the radiological report is clearly indicative of the fact that the prosecutrix is between 16 -18 years and therefore also, this Court requires to interfere with the order of discharge passed by the learned Sessions Judge, Dhrangadhra.
Learned APP Ms. Punani has urged that the very object of the Act of 2012 is to protect the children who are not adequately protected, as they require security at the tender age. She urged that the age of prosecutrix was 13 years at the time of her so-called marriage, and therefore, the trial Court was right in not discharging the applicants- accused of the charges levelled against them. She further urged that Section 3 of the POSCO Act, 2012 speaks of penetrative sexual assault; Section 4 prescribes punishment for penetrative sexual assault and Section 16 likewise is with respect to abetment of an offence and section 17 prescribes punishment for abetment. Such additions, therefore, would not warrant any interference.
Having thus heard both the sides, for the reasons to Page 3 of 5 R/CR.RA/221/2015 ORDER follow hereinafter, this application deserves dismissal.
When there is sufficient ground existing for the Court to frame the charges on the basis of evidence that may be adduced by the prosecution by way of paper of chargesheet, the Court cam frame the charges. Once the case is presented to the Court, it is required of the Court to sift through the material and it becomes its bounden duty to ensure that the reasonable ground is made out from such material for the Court to frame the charges. The law on the subject is well-settled. It is also reiterated recently, referring to all earlier laws by the Apex Court in case of L Krishna Reddy v. State by Station House Officer & Ors., reported in (2014) 14 SCC 401.
As could be noticed from the material on record, the birth date of the prosecutrix is 10th September 1999. The marriage according to the prosecution took place with the applicant no.1 herein on 23rd August 2013 when the prosecutrix was only 13 years old. The trial Court has rightly observed that the victim being less than 15 years of age, the provisions of POSCO Act 2012 which are otherwise meant for protecting the abuse of the children Page 4 of 5 R/CR.RA/221/2015 ORDER have been rightly invoked, even if the parents were agreeable to such marriage, the law will take its own course. Moreover, addition of Sections 4 & 17 is merely incidental as substantive provisions of Sections 3 & 16 were already forming part of the chargesheet. On neither count, this application warrants interference at the hands of this Court. Moreover, there is no grave miscarriage of justice nor there is any manifest illegality which deserves indulgence.
Resultantly, Criminal Misc. Application fails and the same is rejected.
{Ms. Sonia Gokani, J.} Prakash* Page 5 of 5