✦ High Court of India

Deepak Kumar v. State of U.P. and

Case Details High Court of India

Court

High Court of India

Bench

Cr.P.C. issued by learned Addl. Session Special Cr.P.C. issued by learned Addl. Session Addl. Session Court of Addl. Session

Length

2,189 words

Acts & Sections

Code of Criminal Procedure §482 Code of Criminal Procedure §82

1. Heard Mr. Mohd. Monis, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. At the very outset learned AGA submits that notice of Application under Section 482 Cr.P.C. No.8513 of 2025 (Deepak Kumar Vs. State of U.P. and 3 others) has been served upon first informant-opposite party no.2 on 01.03.2025. However in spite of service of notice neither any counter affidavit has been filed by first informant/opposite party no.2 in opposition to this application nor any one has put in appearance on his behalf to oppose this application even in revised call.

4. Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

5. By means of Crl. Misc. Application No.8513 of 2025 (Deepak Kumar Vs. State of U.P. and 3 Others) under Section 528 BNSS applicant-Deepak Kumar, who is a charge sheeted accused and facing trial before Court below, has approached this Court with the following prayer:- "It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application under Section 528 of B.N.S.S. and quash the impugned order dated

12.12.2024 for Non bailable warrant as well as proceeding under section 82 Cr.P.C. issued by learned Addl. Session Judge/Special Judge POCSO Act, Court No.1, Kushinagar at Padrauna in Session Trial No.127 of 2018 arising out of Case Crime No.0080 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Kaptanganj, District Kushinagar. It is further be pleased to stay the effect and operation of the impugned order dated 12.12.2024 for non bailable warrant as well as proceeding under Section 82 Cr.P.C. issued by learned Addl. Session Judge/Special Judge POCSO Act, Court No.1, Kushinagar at Padrauna in Session Trial No.127 of 2018 (State vs. Deepak) pending before the court of learned Addl. Session Judge/Special Judge POCSO Act, Court No.1, Kushinagar at Padrauna arising out of Case Crime No.0080 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Kaptanganj, District Kushinagar, during the pendency of present application under Section 528 of B.N.S.S. before this Hon'ble Court, otherwise the applicant shall suffer irreparable loss and injury. And/or pass any suitable order which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case. It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and further be pleased to quash the entire proceeding of Session Trial No.127 of 2018 (State Vs. Deepak) pending in the Court of Addl. Session Judge/Special Judge POCSO Act, Court No.1, Kushinagar at Padrauna as well as charge sheet no.01 of 2018 dated 26.3.2018 submitted under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act and cognizance order dated 5.4.2018 taking by Addl. Session Judge/Special Judge POCSO Act, Court No.1 Kushinagar at Padrauna as well as impugned Non bailable warrant dated 5.2.2021 issued by Addl. Session Judge/Special Judge POCSO Act, Court No.1 Kushinagar at Padrauna to secure the ends of justice. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Session Trial No.127 of 2018 (State Vs. Deepak) pending in the court of Addl. Session Judge/Special Judge POCSO Act, Cout No.1 Kushinagar at Padrauna, arising out of Case Crime No.0080 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 3/4 POCSO Act and cognizance order dated 5.4.2018 taking by Addl. Session Judge/Special Judge POCSO Act, Court No.1 Kushinagar at Padrauna as well as impugned Non bailable warrant dated 5.2.2021 issued by Addl. Session Judge/Special Judge POCSO Act, Court No.1 Kushinagar at Padrauna during pendency of present criminal application under Section 482 Cr.P.C. to secure the ends of justice. And/or other and further order be passed which the Hon'ble Court may deem fit and proper in the fact and circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury."

6. By means of subsequent Application under Section 482 Cr.P.C. No. 8968 of 2021 (Deepak Kumar Vs. State of U.P. and another) applicant has made the following prayer:- "It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and further be pleased to quash the entire proceeding of Session Trial no. 127 of 2018 (State Vs. Deepak) pending in the court of Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna, arising out of case Crime no. 0080 of 2018, under section 363, 366, 376 I.P.C. and section 3/4 POCSO Act police station - Kaptanganj, District Kushi Nagar, as well as Charge sheet no. 01 of 2018 dated 26.3.2018 submitted under section 363, 366, 376 I.P.C. and section 3/4 POCSO Act and cognizance order dated 5.4.2018 taking by Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna as well as impugned Non bailable warrant dated 5.2.2021 issued by Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna to secure the ends of justice. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Session Trial no. 127 of 2018 (State Vs. Deepak) pending in the court of Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna, arising out of case Crime no. 0080 of 2018, under section 363, 366, 376 I.P.C. and section 3/4 POCSO Act police station Kaptanganj, District Kushi Nagar, as well as Charge sheet no. 01 of 2018 dated 26.3.2018 submitted under section 363, 366, 376 I.P.C. and section 3/4 POCSO Act and cognizance order dated 5.4.2018 taking by Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna as well as impugned Non bailable warrant dated 5.2.2021 issued by Addl. Session Judge/ Special Judge POCSO Act, Court no. 1 Kushinagar at Padrauna, during the pendency of present Criminal application under section 482 Cr.P.C. to secure the ends of justice. And/or, other and further order be passed which the Hon'ble Court may deem fit and proper in the fact and circumstance of the case, otherwise the applicant shall suffer irreparable loss and injury"

7. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and facing trial before court below, however, in view of the facts as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such the present application is liable to be allowed by this Court.

8. In furtherance of aforesaid submission the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 28.2.2018 was lodged by first informant-opposite party no.2 Smt. Kalindi Devi (mother of prosecutrix) and was registered as Case Crime No.0080 of 2018, under Sections 363, 366 and Section 3/4 of POCSO Act, Police Station Kaptanganj, District Kushinagar. In the aforesaid FIR applicant Deepak Kumar has been nominated as solitary named accused.

9. However, subsequent to the aforesaid FIR applicant solemnized marriage with the prosecutrix on 26.01.2018 in accordance with Hindu Rites and Customs. By reason above, the prosecutrix became the legally wedded wife of applicant. As such the prosecutrix started residing with the applicant as his legally wedded wife.

10. It is further evident contended by the learned counsel for the applicant that parties have also applied for grant of marriage registration certificate as contemplated under the provisions of U.P. Marriage Registration Rules, 2017. Photocopy of the said application is on record, and is at page 11 of the supplementary affidavit dated 8.4.2025. From the wedlock of the parties two children namely, Divyanshi (daughter) and Divyansh (son) were born. The birth certificates of the aforesaid children has been issued by the hospital concerned which are on record at page 71 and 73 of the paper book. With reference of above the learned counsel for applicant submits that even in the aforesaid birth certificates issued by the hospital concerned applicant is shows as father and prosecutrix is shown as the mother of aforesaid children. Apart from above the bona fide of the parties is further evident from the fact that the prosecutrix has joined the present applicant in present application inasmuch as she has also filed affidavit in support of present application. On the above premise, the learned counsel for applicant submits that in view of aforementioned subsequent developments that have taken place, the criminality if any, committed by applicant now stands washed off. The chances of conviction of accused applicant are now not only remote but also bleak. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, then a happy family shall stand broken. It is then urged by the learned counsel for applicant that the impugned proceedings are therefore, liable to be quashed by this Court.

11. Reference was then made 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 and Shriram Urav Vs. State of Chattigarh passed in Crl. Appeal No.41/2021 decided on 30.01.2025 wherein the Apex Court quashed the proceedings against accused on the ground that he has solemnized marriage with the prosecutrix and court cannot turn a blind eye to the said developments. No exception regarding aforementioned judgments can be carved out in the case of present applicant. On the above premise, the learned counsel for applicant then contends that present application is liable to be allowed by this Court.

12. 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 applicant is a named and charge sheeted accused, therefore, no indulgence be granted by this Court in favour of applicant. Further more the prosecutrix was a child within the meaning of the term child as defined in the POCSO Act on the date of occurrence, therefore, in view of above, the criminality if any, committed by applicant shall not get washed off on account of the subsequent developments as suggested by the learned counsel for applicant. Learned A.G.A. has then referred to the judgment of Supreme Court in State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021, wherein it has been observed by the Apex Court that there can be no compromise in matters under the POCSO Act. Offence complained of against applicant is not only illegal but also immoral. Applicant is guilty of disloding the modesty of the prosecutrix who was a young and innocent girl aged about 18 years on the date of occurrence. As such, no interference is warranted by this Court in present application. However, the learned AGA could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this application with reference to the record at this stage.

13. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix and they are living as a happy family.

14. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that matter requires consideration.

15. Notice on behalf of State- opposite party 1 has been accepted by the learned A.G.A.

16. Issue notice to first informant opposite party-2.

17. All the opposite parties are granted 4 weeks' time to file their respective counter affidavits. Applicant will have 2 weeks thereafter to file his rejoinder affidavits.

18. List this application for admission on 28.05.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above as well the judgment 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 and Shriram Urav Vs. State of Chattigarh passed in Crl. Appeal No.41/2021 decided on 30.01.2025 respectively, as an interim measure, it is hereby provided that until further orders of this Court further proceedings in Session Trial No.127 of 2018 (State vs. Deepak) arising out of Case Crime No.0080 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Kaptanganj, District Kushinagar now pending in the court of learned Addl. Session Judge/Special Judge POCSO Act, Court No.1, Kushinagar at Padrauna shall remain stayed. Order Date :- 16.4.2025 Md Faisal