Monday, September 25, 2023

Allahabad High Court quashes proceedings against man under POCSO, notes application of law cannot be applied mathematically

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The Allahabad High Court while allowing an application said that the application of law is not a mathematical theorem and cannot be applied in vacuum. The people of the State are subjects and if the application of law is applied mathematically, sometimes it would lead to a disastrous result.

A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by Hasnain @ Malik.

The application u/s 482 Cr.P.C is being filed by Hasnain @ Malik s/o Irfan, r/o Kesarpur, P.S Sirauli, District Bareilly who is facing prosecution in Criminal Case under section 363, 366, 506, 376(2)N of I.P.C and Section-6 of POCSO Act, P.S -Sirauli, District Bareilly arising out of Charge sheet dated 26.11.2019 in Case as well as cognizance/ summoning order dated 24.12.2019, pending in the court of Additional Session Judge/Special Judge, POCSO Act, Bareilly.

The facts of the case are that the father of the victim Natthu Shah has lodged an F.I.R against the sole named accused applicant on 16.6.2019 for the incident said to have taken place on 13.6.2019 u/s 363, 366, 506 I.P.C at Police Station Sirauli, District Bareilly, with the allegations that on 13.6.2019 around 8.00 in the evening the applicant has enticed away his daughter by extending threats. Her whereabouts was not known and thus an F.I.R was registered under the aforesaid sections of I.P.C.

After the F.I.R was lodged, the victim girl has approached the High Court by filing a Writ, wherein the Division Bench of the Court order dated 22.7.2019 have protected the interest of the petitioners and her husband.

It was also directed to the victim girl to get her medical examination conducted. Thereafter, the girl was put for medical examination and as per the report of C.M.O, Prayagraj, her age was recorded as 17 years at the time of incident.

After the recovery of the girl, she was sent to the Rajkiya Mahila Sharnalaya, Bareilly vide order dated 12.9.2019 passed by the Child Welfare Committee, Bareilly. Thereafter, her husband filed a habeas corpus writ petition, which was eventually allowed in favour of husband on 6.1.2021.

In the affidavit sworn by the victim girl herself filed in support of the 482 application, it has been mentioned that the girl has got married on 12.6.2019 as per Muslim Rites and customs and from this relationship one baby daughter was born on 23.12.2021 and now both of them are happily and peacefully residing as husband and wife.

Counsel for the applicant has drawn attention of the Court to the testimony of father of the victim Natthu Shah as well as the victim herself, in which they have blasted the prosecution case to its core and on her own she went to Prayagraj for taking the protection from the High Court and since both of them are legally wedded husband and wife, they have established physical relationship number of time, besides this she has also stated that she has given birth to a baby from this wedlock.

When the victim girl was produced before the Court and the Court had occasion to have conversation with her, she in no uncertain terms states that Hasnain @ Malik (present applicant) is her husband and she got married with him and now she wants to go with her husband Hasnain @ Malik. She also unequivocally states before the Court that the allegations made in the F.I.R is concocted and exaggeration of the incident. Father of the victim Natthu Shah too in his testimony has given an entirely different picture of the incident, the Court noted.

“Under these circumstances, the applicant, his wife and their baby child are happily residing as family members and the faith and future of the kid would be at stake in the event the applicant is asked to surrender and face the trial.

The application of law is not a mathematical theorem and cannot be applied in vacuum. The people of the State are subjects and if the application of law is applied mathematically, sometimes it would lead to a disastrous result, when the applicant is leading as a head of a family and he is the bread earner, thus, it would be very cruel to send him to jail putting his poor child in an orphan stage”, the Court observed.

Under these circumstances, I have no hesitation to quash the proceedings of aforesaid case pending against the applicant in the Court of Additional Session Judge/Special Judge, POCSO Act, Bareilly.

“The application stands allowed and the entire aforesaid proceedings is hereby quashed.

However, it is made clear that this order would be made effective and absolute, when the applicant along with his wife would get their marriage registered within two months and thereafter produce its copy to the concerned court for passing an appropriate order, in the light of the observations made in this order”, the Court ordered.

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