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Allahabad High Court rejects application to quash POCSO case

The Allahabad High Court rejected an application while noting that it is a common principle of law that a person below 18 cannot give consent to convert his or her religion. Similarly, consent given by those below 18 for physical relations would not be a valid consent and in that case, physical relation with a minor girl would be deemed to be raped under the definition of Section 375 IPC.

A single-judge bench of Justice Umesh Chandra Sharma passed this order while hearing an application under Section 482 filed by Saurabh.

The application under Section 482 CrPC has been instituted by the applicant to quash the charge-sheet date 16.05.2022 as well as cognizance order dated 02.06.2022 passed by Additional District Judge / Special Judge (POCSO Act), Bulandshahr, in Case under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Araniya, District Bulandshahr, pending in the aforesaid court.

The facts of the case are that opposite party no 2, lodged FIR on 12.03.2022 against the applicant stating therein that on 11.03.2022 applicant’s minor daughter aged about 17 years had gone to the field from the house to protect wheat crops from Nilgai.

After some time, his wife and nephew Liyaquat reached there and saw that neighbour Saurabh S/o Devi Lal was taking away his minor daughter on a black motorcycle on the road to village Ghatal. They returned home and informed him, they searched for them but could not find, hence this FIR be lodged and necessary action be taken.

After investigation the charge-sheet has been submitted in the aforesaid Sections against the applicant and a charge-sheet has also been submitted against accused Waris S/o Nanhey Khan, under Sections 363 and 366 IPC.

The applicant has taken ground that the IO has submitted the charge-sheet without proper investigation, virtually the applicant and the informant’s daughter loved each other and solemnized marriage on 15.03.2022 in Naini Arya Samaj Mandir. Since the daughter of opposite party no 2 was Muslim by religion, therefore before the marriage she converted herself as Hindu and changed her name and thereafter she approached the High Court by way of Habeas Corpus Writ Petition.

During the course of hearing, the High Court summoned his wife with opposite party no 2. The victim (daughter of the informant) expressed her wish in the Court to go with the applicant at her freewill and without any pressure. Therefore, the allegations against the applicant are baseless and fabricated, the Court observed.

There is no criminal history of the applicant and there is no likelihood of his absconding, hence the Court allowed the application and the aforesaid criminal proceeding and cognizance order be quashed.

The Court noted that,

The applicant has filed a supplementary affidavit to the effect that at the time of incident, the applicant’s daughter was 17 years and eight months of age and she has stated in her statement to the I.O. that at the time of the incident she was 18 years old, she was in love with Suresh, she wanted to with marry him. When she was produced for medical examination, she denied internal and external examination and also stated that she married the applicant on 10th March, 2022 at her own will and wish and wanted to live with him.

Even in the statement under Section 164 CrPC the victim has stated to the concerned Magistrate that her age was 18 years, she had gone with the applicant of her will and wishes. She wanted to marry and live with the applicant without any pressure. The applicant has not committed any illegal act with her. Due to evil intentions the informant obtained an age certificate from the concerned Nagar Nigam, in which the age of the victim has wrongly been mentioned only to harass the applicant. She has also stated in the Court that the applicant has not committed any illegal act with her.

Opposite party no 2 has filed a counter affidavit dated January 29, 2023, that no cause of action has arisen to the applicant to file the application. The IO has submitted a charge-sheet after proper investigation and the concerned Judge has taken cognizance on the basis of the facts and evidence available on record. At the time of commission of crime the victim was a minor girl and her date of birth was July 14, 2004, therefore, at the time of incident she was 17th years and 07 months and 27 days old. There is no relevance of the marriage certificate issued by Arya Samaj Krishna Nagar, Prayagraj. The victim had neither converted her religion, nor she went with the accused at her sweet will. The victim never married the applicant, she never wished to go with the applicant, virtually she refused to go with the applicant and their habeas corpus writ petition was dismissed by the Court. Prima facie a case under Sections 363, 366, 376 IPC and 3/4 POCSO Act is made out against the applicant.

The applicant could not make any prima-facie case for interference by the Court for exercising jurisdiction under Section 482 CrPC. The victim has given a statement under Section 161 CrPC under the pressure of the applicant and the Police. Under the Police pressure, she refused to conduct the medical examination. She has given a statement under Section 164 CrPC in the presence of Police. At the time of incidence and alleged conversion, she was minor, therefore there is no relevancy of the aforesaid conversion certificate. Therefore the application will be rejected on heavy cost.

According to the applicant, at the time of alleged occurrence, the victim was a major girl and she was able to have physical relations/cohabitation with the accused. She was also able to convert her religion. She was in love with the accused and after converting her religion, she married the applicant in Arya Samaj Temple, Naini, Allahabad.

She also admitted the above facts in High Court in Habeas Corpus Writ Petition. She was neither kidnapped nor abducted nor she was raped. She was not below the age of 18 years, hence there is no applicability of Sections 363, 366, 376 IPC and ¾ POCSO Act. Hence the entire proceedings be quashed.

“Contrary to that from perusal of record, it transpires that as per school leaving certificate of Class-IV, the date of birth of the victim is 14.07.2004, hence, she was below the age of 18 years at the time of alleged commission of crime. It is common principle of law that a person below the age of 18 years cannot give consent with regard to conversion of his or her religion and such person cannot give consent with regard to Section 376 IPC as Section 375 IPC provides that if a physical relation is being established with or without consent of a lady below 18 years of age, it would not be a valid consent and in that case physical relation with such minor girl would be deemed to be raped under the definition of Section 375 IPC. There is no record of the proceedings of Habeas Corpus Writ Petition to strengthen the version of the applicant that the victim had stated in favour of the applicant in High Court. There is no proof that the father of the victim had changed her actual date of birth. If a person is below the age of 18 years and he/she is taken away from his/her lawful guardianship, it may be said that such person had been kidnapped. After due investigation a chargesheet has been submitted against the accused under Section 363, 366, 376 I.P.C and ¾ POCSO Act, hence, on the basis of evidence on record, it cannot be concluded that ongoing criminal proceeding is the abuse of process of Court and to prevent such abuse or to secure the ends of justice, this Court should exercise its inherent jurisdiction to quash the entire criminal proceeding in question. Hence, the proceedings under Section 482 CrPC is not tenable and is liable to be rejected,” the Court further observed while rejecting the application.

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