Posco Act Maharajganj as well as the prosecution of the v. Kothibhar, District Maharajganj

1. Heard Mr. Pawan Kumar, the learned counsel for applicants and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Smt Ekta Chauhan, who is prosecutrix and applicants-2 and 3 who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to allow this application and quash the charge sheet dated 21.01.2019 and the Summoning order dated 25.09.2019 passed by the learned Special Judge Posco Act Maharajganj as well as the prosecution of the applicant under sections 363,366,376 IPC & 16/17 Posco Act which is pending in court of Special Judge Posco Act Maharajganj as Session Trial case No. 515 of 2019, State versus Ramesh Mali. Case Crime No. 250 of 2018, Police Station Kothibhar, District Maharajganj. It is also prayed that during the pendency of the present application the further proceedings of the above noted case may also very graciously be kept in abeyance, or to pass such other and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise the Applicant shall suffer irreparable loss and injury."

4. Present application came up for admission on 25.11.2024 and this Court passed the following order:- "1. Heard leaned counsel for applicants and learned Additional Government Advocate appearing for opposite party no.1-State.

2. Issue notice to opposite parties no.2,3 & 4, returnable at an early date.

3. Opposite parties are granted time to file their counter affidavit.

4. List this case on 06.01.2025, as fresh along with service report."

5. Subsequent to above order dated 25.11.2024 office has submitted reported dated 03.01.2025 stating therein that notice issued opposite party-3 has been served though office, however, no notice could be served upon first informant inasmuch as opposite party-2 is reported to be dead.

6. Learned counsel for applicant submits that though applicants 2 and 3 are named and charge sheeted accused and facing trial before Court below, however, in view of the peculiar facts and circumstance of the case as have emerged on record, the criminal prosecution of applicants 2 and 3 cannot be sustained any further. As such, present application is liable to be allowed.

7. In furtherance of aforesaid submission, the learned counsel for applicants submits that present criminal prosecution of applicants commenced, when the FIR dated 22.06.2018 was lodged by first informant opposite party-2 Kailash Chauhan (father of the prosecutrix) and was registered as Case Crime No.0250 of 2018 under sections 363, 366, I.P.C., and 16/17 POCSO Act, Police Station Kothibhar, District Maharajganj.

8. However, subsequent to the aforementioned FIR, applicant-2 solemnized marriage with the prosecutrix Smt. Ekta Chauhan on 09.10.2018. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. From the aforesaid wedlock/ cohabitation of presecutrix and applicant as husband and wife two children namely Satyam-boy and Satya-girl were born. The birth certificates of the children have brought on record and are at pages 59 and 60 of the paper book. As per the aforesaid documents applicant-2 Ramesh Mali is shown as father, whereas prosecutrix is shown as the mother. Marriage so solemnized by the parties has also been registered under the provisions of Uttar Pradesh Marriage Registration Rules, 2017. Once the marriage of the parties has been registered under the relevant rules then there is a statutory presumption regarding existence of a valid and legal marriage. The bona fide of the parties is further explicit from the fact that prosecutrix has joined the accused applicants in present proceedings inamuch as the affidavit filed in support of present application has also been sworn by the prosecutrix. On the above premise, the learned counsel for applicants submits that in view of abovenoted subsequent developments that have taken place, the criminality if any, committed by applicants 2 and 3 now stands washed off. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicants 2 and 3. In case the criminal prosecution of applicants 2 and 3 is allowed to continue, then a happy family shall stand broken. To buttress his submission he has referred to the judgments of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056 and Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433, wherein, the Apex Court quashed the criminal prosecution of accused therein on the ground that the accused has solemnized marriage with the prosecutrix. On the above premise, the leaned counsel for applicants submits that present application is also liable to be allowed by this Court.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submits that since on the date of occurrence the prosecutrix was a child within the meaning of the term child as defined in the POCSO Act, therefore, in view of above, the criminality if any, committed by applicants 2 and 3 against minor shall not get wiped out on account of the subsequent developments as suggested by the learned counsel for applicants. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

10. Having heard, the learned counsel for applicants, the learned A.G.A. for State, and upon perusal of record, this Court finds that criminal prosecution of applicants commenced, when the FIR dated 22.06.2018 was lodged by first informant opposite party-2 Kailash Chauhan (father of the prosecutrix). As per the office report dated 03.01.2025 the first informant has died. The applicant- 2 solemnized marriage with the prosecutrix Smt. Ekta Chauhan on 09.10.2018. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. The marriage of the parties has also been registered under the provision of U.P. Marriage Registration Rules, 2017. As such, there is a statutory provision regarding valid and legal marriage of the parties. From the aforesaid wedlock/ cohabitation of presecutrix and applicant as husband and wife two children namely Satyam-boy, Satya-girl were born. In the birth certificates of the children applicant-2 Ramesh Mali is shown as father, whereas prosecutrix is shown as the mother. In view of abovenoted subsequent developments that have taken place, the criminality if any, committed by applicants 2 and 3 now stands washed off. The bona fide of the parties is further explicit from the fact that prosecutrix has joined the applicants 2 and 3 in present proceedings inamuch as the affidavit filed in support of present application has been sworn by the prosecutrix herself. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicants 2 and 3. In case the criminal prosecution of applicants 2 and 3 is allowed to continue, then a happy family shall stand broken.

11. At this juncture, reference be made to the judgment of the Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056, wherein the Court quashed the proceedings under the POCSO Act against accused on the ground that he has solemnized marriage with the prosecutrix. Since the judgment is a short one therefore, the same is reproduced in it's entirety. ""1. Leave granted.

2. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He worksas a woodcutter on daily wages in a private factory. FIR was registered against him forcommitting rape under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal.

3. Mr. M.P. Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children. 4. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

5. After hearing the matter for some time on 08th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life.

6. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him.

7. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with maternal uncle.

8. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of.

9. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order."

12. Similar view has been expressed by the Apex Court in the case of Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433.

13. In view of the discussion made above, this Court finds that the ratio laid down by the Apex Court in the cases of K. Dhandapani (Supra) and Mafat Lal (Supra) are squarely attracted in the present case as the accused herein has solemnized marriage with the prosecutrix.

14. As a result, the present application succeeds and is liable to be allowed.

15. It is, accordingly, allowed.

16. The entire proceedings in Sessions Trial Case No. 515 of 2019, (State versus Ramesh Mali) arising out of Case Crime No. 250 of 2018 under Sections 363, 366, 376 IPC & 16/17 POCSO, Police Station Kothibhar, District Maharajganj., now pending in the court of Special Judge POCSO Act Maharajganj are, hereby, quashed.

17. In the facts and circumstances of the case, parties shall bear their own cost. Order Date :- 6.3.2025 Imtiyaz

1. Heard Mr. Pawan Kumar, the learned counsel for applicants and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Smt Ekta Chauhan, who is prosecutrix and applicants-2 and 3 who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to allow this application and quash the charge sheet dated 21.01.2019 and the Summoning order dated 25.09.2019 passed by the learned Special Judge Posco Act Maharajganj as well as the prosecution of the applicant under sections 363,366,376 IPC & 16/17 Posco Act which is pending in court of Special Judge Posco Act Maharajganj as Session Trial case No. 515 of 2019, State versus Ramesh Mali. Case Crime No. 250 of 2018, Police Station Kothibhar, District Maharajganj. It is also prayed that during the pendency of the present application the further proceedings of the above noted case may also very graciously be kept in abeyance, or to pass such other and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise the Applicant shall suffer irreparable loss and injury."

4. Present application came up for admission on 25.11.2024 and this Court passed the following order:- "1. Heard leaned counsel for applicants and learned Additional Government Advocate appearing for opposite party no.1-State.

2. Issue notice to opposite parties no.2,3 & 4, returnable at an early date.

3. Opposite parties are granted time to file their counter affidavit.

4. List this case on 06.01.2025, as fresh along with service report."

5. Subsequent to above order dated 25.11.2024 office has submitted reported dated 03.01.2025 stating therein that notice issued opposite party-3 has been served though office, however, no notice could be served upon first informant inasmuch as opposite party-2 is reported to be dead.

6. Learned counsel for applicant submits that though applicants 2 and 3 are named and charge sheeted accused and facing trial before Court below, however, in view of the peculiar facts and circumstance of the case as have emerged on record, the criminal prosecution of applicants 2 and 3 cannot be sustained any further. As such, present application is liable to be allowed.

7. In furtherance of aforesaid submission, the learned counsel for applicants submits that present criminal prosecution of applicants commenced, when the FIR dated 22.06.2018 was lodged by first informant opposite party-2 Kailash Chauhan (father of the prosecutrix) and was registered as Case Crime No.0250 of 2018 under sections 363, 366, I.P.C., and 16/17 POCSO Act, Police Station Kothibhar, District Maharajganj.

8. However, subsequent to the aforementioned FIR, applicant-2 solemnized marriage with the prosecutrix Smt. Ekta Chauhan on 09.10.2018. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. From the aforesaid wedlock/ cohabitation of presecutrix and applicant as husband and wife two children namely Satyam-boy and Satya-girl were born. The birth certificates of the children have brought on record and are at pages 59 and 60 of the paper book. As per the aforesaid documents applicant-2 Ramesh Mali is shown as father, whereas prosecutrix is shown as the mother. Marriage so solemnized by the parties has also been registered under the provisions of Uttar Pradesh Marriage Registration Rules, 2017. Once the marriage of the parties has been registered under the relevant rules then there is a statutory presumption regarding existence of a valid and legal marriage. The bona fide of the parties is further explicit from the fact that prosecutrix has joined the accused applicants in present proceedings inamuch as the affidavit filed in support of present application has also been sworn by the prosecutrix. On the above premise, the learned counsel for applicants submits that in view of abovenoted subsequent developments that have taken place, the criminality if any, committed by applicants 2 and 3 now stands washed off. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicants 2 and 3. In case the criminal prosecution of applicants 2 and 3 is allowed to continue, then a happy family shall stand broken. To buttress his submission he has referred to the judgments of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056 and Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433, wherein, the Apex Court quashed the criminal prosecution of accused therein on the ground that the accused has solemnized marriage with the prosecutrix. On the above premise, the leaned counsel for applicants submits that present application is also liable to be allowed by this Court.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submits that since on the date of occurrence the prosecutrix was a child within the meaning of the term child as defined in the POCSO Act, therefore, in view of above, the criminality if any, committed by applicants 2 and 3 against minor shall not get wiped out on account of the subsequent developments as suggested by the learned counsel for applicants. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

10. Having heard, the learned counsel for applicants, the learned A.G.A. for State, and upon perusal of record, this Court finds that criminal prosecution of applicants commenced, when the FIR dated 22.06.2018 was lodged by first informant opposite party-2 Kailash Chauhan (father of the prosecutrix). As per the office report dated 03.01.2025 the first informant has died. The applicant- 2 solemnized marriage with the prosecutrix Smt. Ekta Chauhan on 09.10.2018. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, she is residing with the applicant as his legally wedded wife. The marriage of the parties has also been registered under the provision of U.P. Marriage Registration Rules, 2017. As such, there is a statutory provision regarding valid and legal marriage of the parties. From the aforesaid wedlock/ cohabitation of presecutrix and applicant as husband and wife two children namely Satyam-boy, Satya-girl were born. In the birth certificates of the children applicant-2 Ramesh Mali is shown as father, whereas prosecutrix is shown as the mother. In view of abovenoted subsequent developments that have taken place, the criminality if any, committed by applicants 2 and 3 now stands washed off. The bona fide of the parties is further explicit from the fact that prosecutrix has joined the applicants 2 and 3 in present proceedings inamuch as the affidavit filed in support of present application has been sworn by the prosecutrix herself. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicants 2 and 3. In case the criminal prosecution of applicants 2 and 3 is allowed to continue, then a happy family shall stand broken.

11. At this juncture, reference be made to the judgment of the Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056, wherein the Court quashed the proceedings under the POCSO Act against accused on the ground that he has solemnized marriage with the prosecutrix. Since the judgment is a short one therefore, the same is reproduced in it's entirety. ""1. Leave granted.

2. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He worksas a woodcutter on daily wages in a private factory. FIR was registered against him forcommitting rape under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal.

3. Mr. M.P. Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children. 4. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

5. After hearing the matter for some time on 08th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life.

6. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him.

7. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with maternal uncle.

8. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of.

9. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order."

12. Similar view has been expressed by the Apex Court in the case of Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433.

13. In view of the discussion made above, this Court finds that the ratio laid down by the Apex Court in the cases of K. Dhandapani (Supra) and Mafat Lal (Supra) are squarely attracted in the present case as the accused herein has solemnized marriage with the prosecutrix.

14. As a result, the present application succeeds and is liable to be allowed.

15. It is, accordingly, allowed.

16. The entire proceedings in Sessions Trial Case No. 515 of 2019, (State versus Ramesh Mali) arising out of Case Crime No. 250 of 2018 under Sections 363, 366, 376 IPC & 16/17 POCSO, Police Station Kothibhar, District Maharajganj., now pending in the court of Special Judge POCSO Act Maharajganj are, hereby, quashed.

17. In the facts and circumstances of the case, parties shall bear their own cost. Order Date :- 6.3.2025 Imtiyaz