High Court
Case Details
Acts & Sections
Cited in this judgment
Heard Mr. Juned Alam, the learned counsel for applicant, the learned A.G.A. for State/opposite party-1 and Mr. Mohd. Hamid, Advocate, who has put in appearance on behalf of the prosecutrix/opposite party-5 by filing his vakalatnama, today in Court, which is taken on record. Perused the record. At the very outset, the learned A.G.A. submits that notice of this application under section 528 BNSS has been served upon first informant/opposite party-2 on 19.4.2025. However, inspite of service of notice upon opposite party-2 neither any counter affidavit has been filed by opposite party-2 in opposition to this application nor anyone has put in appearance on his behalf to oppose this application, even in revised call. Applicant- Vipin Prasad who is a charge sheeted accused and facing trial before Court below has approached this Court by means of present application under section 528 BNSS with the following prayer: "It is, Therefore, Most Respectfully Prayed that this Hon'ble Court may graciously be pleased to allow the Present Criminal Misc. Application (U/s 528 of B.N.S.S.) and to Quash the entire Proceeding initiated against the Applicant arising out of Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar (CNR NO. UPKU01- 003973-2020) Pending in the Court of learned Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna and Quash the Impugned Charge- sheet No. 0234/2020 dated 13/11/2020 (Annexure No. 1) submitted by Police in Case Crime No. 245 of 2018 as well as Impugned Quash the Impugned Cognizance-cum-Summoning Order dated 18/12/2020 (Annexure No. 2) Passed by learned Special Judge POCSO Act Court No. 1 Kushinagar at Padrauna against the Applicant in the aforesaid Case. It is further Prayed that this Hon'ble Court may also be pleased to Stay the further Proceeding initiated against the Applicant arising out of Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar (CNR NO. UPKUO1-003973-2020), Pending in Court of learned Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna, during the pendency of this Criminal Misc. Application before this Hon'ble Court. So that Justice may be done with the Applicant. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of case." Mr. Juned Alam, the learned counsel for applicant submits that though applicant is a 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, present application is liable to be allowed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an F.I.R. dated 26.8.2018 was lodged by first informant/opposite party-2 Ram Awadh Sharma (father of the prosecutrix) and was registered as Case Crime No. 245 of 2018, under section 363, 366, 376 IPC, Section 3/4 POCSO Act, Police Station- Severahi, District- Kushinagar. In the aforesaid F.I.R., an unknown person has been arraigned as solitary accused. However, prior to aforesaid F.I.R. dated 26.8.2018, applicant had solemnized marriage with the prosecutrix on 18.6.2018, in accordance with Hindu Rites and Customs. Accordingly, the prosecutrix became the legally wedded wife of applicant. Consequently, the prosecutrix is residing with the applicant as his legally wedded wife. The bonafide of the parties is further evident from the fact that parties have applied for registration of marriage ertificate as contemplated under the U.P. Marriage Registration Rules, 2017. Photo copy of the application for registration of Marriage/grant of Marriage Registration certificate has been brought on record which is at page 85 of the paper book. It is further submitted by the learned counsel for applicant that from the wedlock of prosecutrix and applicant, two children were born. The birth certificates of the children so born are on record and is at pages 90 and 91 of the paper book respectively. As per the said birth certificates, applicant is shown as the father whereas the prosecutrix is shown as the mother of the children born out of the co-habitation of applicant and the prosecutrix as husband and wife. On the aforesaid pemise, the learned counsel for applicant submits that criminality if any committed by the applicant now stands washed of. It is further contended by the learned counsel for applicant that prosecutrix who has been impleaded as opposite party-5 has put in appearance and filed a short counter affidavit. However, in the short counter affidavit so filed on her behalf, no objection has been raised by the prosecutrix in opposition to this application. He, therefore contends that there is nothing on record up to this stage to doubt the bonafide of the parties The parties alongwith their children are living happily. On the above conspecuts, the learned counsel for applicant submits that no useful purpose shall be served in prolonging the criminal prosecution of applicant. In view of the subsequent developments that have taken place, the chances of conviction of accused appicnat is not only remote but also bleak. It is thus urged by the learned counsel for applicant that in case the criminal prosecution of applicant is allowed to continue a happy family shall stand broken. As such, present application is liable to be allowed by this Court. Learned counsel for applicant has then referred to judgements 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) 6 SCC 589 and Shriram Urav Vs. State of Chhattisgarh, Criminal Appeal No. 41 of 2021. With reference to above the learned counsel for applicant submits that the Apex Court in aforementioned judgements quashed the criminal prosecution of accused therein on the ground that the accused has solemnized marriage with the prosecutrix and court cannot turn a blind eye to the said development. Drawing a parallel between the ratio laid down in aforementioned judgements and the facts of the present case as note dherien above, it is urged by the learned counsel for applicant that there is no such distinguishing feature in the present case so as to deny the benefit of aforementioned judgements of Supreme Court to the accused applicant. On the edifice fo aforesaid submissions, the learned counsel for applicants contends that impugned proceedings pending against applicant before Court below are liable to be quashed by this Court. 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 his favour. Learned A.G.A. further submits that since the prosecutrix was a child within the meaning of the term child as defined under the POCSO Act, therefore, the subsequent development if any will not wash off the criminality committed by applicant, as suggested by the learned counsel for applicant. Applicant is guilty of dislodging the modesty of the prosecutrix, who was a young and innocent girl aged less than 18 years of age at the time of occurrence. Consequently, the criminality committed by applicant is not private in nature but a crime against society. According to the learned A.G.A. in liew of the law laid down by Supreme Court in State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021 no compromise can be entered into by the prosecutrix in proceedings under the POCSO Act. As such, no interfrence is warranted by this Court in present application. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. On the other hand Mr. Mohd. Hamid, the learned counsel representing the prosecutrix/opposite party-5 in support of this application submits that he has received instructions not to oppose this application. He further submits that it is now an admitted fact to the parties that the prosecutrix has solemnized marriage with accused applicant and is residing with him as his legally wedded wife. From the aforesaid wedlock two children were born. The parties alongwith their children are living together as a happy family. He therefore contends that he cannot have any objection, in case the present application is decided by this Court taking into consideration aforementioned facts. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix. The prosecutrix is now the legally wedded wife of applicant. From the aforesaid wedlock two children were born. Furthermore the parties are living together as a happy family. Having heard the learned counsel for applicants, the learned A.G.A. for State/opposite party-1, the learned counsel representing the prosecutrix/opposite party-5 and upon perusal of record, this Court finds that the matter requires consideration. Notice on behalf of State/opposite party - 1 has been accepted by the learned A.G.A. Mr. Mohd. Hamid, has put in appearance on behalf of the prosecutrix/opposite party-5. Issue notice to first informant/opposite party-2. All the opposite parties may file their respective counter affidavits within four weeks. Applicant will have two weeks thereafter to file his rejoinder affidavit. List this application for admission on 1.7.2025. When the matter is listed next, the name of Mr. Mohd. Hamid shall be published in the cause list as counsel for prosecutrix/opposite party-5. Considering the facts and circumstances of the case, the submissions urged by learned counsel for applicants in support of this application as noted herein above, as well as the judgements of the Supreme Court referred to above, as an interim measure, it is hereby provided that until further orders of this Court, further proceedings in Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar now Pending in the Court of Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna, shall remain stayed. Order Date :- 22.4.2025 Arshad
Heard Mr. Juned Alam, the learned counsel for applicant, the learned A.G.A. for State/opposite party-1 and Mr. Mohd. Hamid, Advocate, who has put in appearance on behalf of the prosecutrix/opposite party-5 by filing his vakalatnama, today in Court, which is taken on record. Perused the record. At the very outset, the learned A.G.A. submits that notice of this application under section 528 BNSS has been served upon first informant/opposite party-2 on 19.4.2025. However, inspite of service of notice upon opposite party-2 neither any counter affidavit has been filed by opposite party-2 in opposition to this application nor anyone has put in appearance on his behalf to oppose this application, even in revised call. Applicant- Vipin Prasad who is a charge sheeted accused and facing trial before Court below has approached this Court by means of present application under section 528 BNSS with the following prayer: "It is, Therefore, Most Respectfully Prayed that this Hon'ble Court may graciously be pleased to allow the Present Criminal Misc. Application (U/s 528 of B.N.S.S.) and to Quash the entire Proceeding initiated against the Applicant arising out of Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar (CNR NO. UPKU01- 003973-2020) Pending in the Court of learned Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna and Quash the Impugned Charge- sheet No. 0234/2020 dated 13/11/2020 (Annexure No. 1) submitted by Police in Case Crime No. 245 of 2018 as well as Impugned Quash the Impugned Cognizance-cum-Summoning Order dated 18/12/2020 (Annexure No. 2) Passed by learned Special Judge POCSO Act Court No. 1 Kushinagar at Padrauna against the Applicant in the aforesaid Case. It is further Prayed that this Hon'ble Court may also be pleased to Stay the further Proceeding initiated against the Applicant arising out of Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar (CNR NO. UPKUO1-003973-2020), Pending in Court of learned Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna, during the pendency of this Criminal Misc. Application before this Hon'ble Court. So that Justice may be done with the Applicant. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of case." Mr. Juned Alam, the learned counsel for applicant submits that though applicant is a 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, present application is liable to be allowed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an F.I.R. dated 26.8.2018 was lodged by first informant/opposite party-2 Ram Awadh Sharma (father of the prosecutrix) and was registered as Case Crime No. 245 of 2018, under section 363, 366, 376 IPC, Section 3/4 POCSO Act, Police Station- Severahi, District- Kushinagar. In the aforesaid F.I.R., an unknown person has been arraigned as solitary accused. However, prior to aforesaid F.I.R. dated 26.8.2018, applicant had solemnized marriage with the prosecutrix on 18.6.2018, in accordance with Hindu Rites and Customs. Accordingly, the prosecutrix became the legally wedded wife of applicant. Consequently, the prosecutrix is residing with the applicant as his legally wedded wife. The bonafide of the parties is further evident from the fact that parties have applied for registration of marriage ertificate as contemplated under the U.P. Marriage Registration Rules, 2017. Photo copy of the application for registration of Marriage/grant of Marriage Registration certificate has been brought on record which is at page 85 of the paper book. It is further submitted by the learned counsel for applicant that from the wedlock of prosecutrix and applicant, two children were born. The birth certificates of the children so born are on record and is at pages 90 and 91 of the paper book respectively. As per the said birth certificates, applicant is shown as the father whereas the prosecutrix is shown as the mother of the children born out of the co-habitation of applicant and the prosecutrix as husband and wife. On the aforesaid pemise, the learned counsel for applicant submits that criminality if any committed by the applicant now stands washed of. It is further contended by the learned counsel for applicant that prosecutrix who has been impleaded as opposite party-5 has put in appearance and filed a short counter affidavit. However, in the short counter affidavit so filed on her behalf, no objection has been raised by the prosecutrix in opposition to this application. He, therefore contends that there is nothing on record up to this stage to doubt the bonafide of the parties The parties alongwith their children are living happily. On the above conspecuts, the learned counsel for applicant submits that no useful purpose shall be served in prolonging the criminal prosecution of applicant. In view of the subsequent developments that have taken place, the chances of conviction of accused appicnat is not only remote but also bleak. It is thus urged by the learned counsel for applicant that in case the criminal prosecution of applicant is allowed to continue a happy family shall stand broken. As such, present application is liable to be allowed by this Court. Learned counsel for applicant has then referred to judgements 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) 6 SCC 589 and Shriram Urav Vs. State of Chhattisgarh, Criminal Appeal No. 41 of 2021. With reference to above the learned counsel for applicant submits that the Apex Court in aforementioned judgements quashed the criminal prosecution of accused therein on the ground that the accused has solemnized marriage with the prosecutrix and court cannot turn a blind eye to the said development. Drawing a parallel between the ratio laid down in aforementioned judgements and the facts of the present case as note dherien above, it is urged by the learned counsel for applicant that there is no such distinguishing feature in the present case so as to deny the benefit of aforementioned judgements of Supreme Court to the accused applicant. On the edifice fo aforesaid submissions, the learned counsel for applicants contends that impugned proceedings pending against applicant before Court below are liable to be quashed by this Court. 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 his favour. Learned A.G.A. further submits that since the prosecutrix was a child within the meaning of the term child as defined under the POCSO Act, therefore, the subsequent development if any will not wash off the criminality committed by applicant, as suggested by the learned counsel for applicant. Applicant is guilty of dislodging the modesty of the prosecutrix, who was a young and innocent girl aged less than 18 years of age at the time of occurrence. Consequently, the criminality committed by applicant is not private in nature but a crime against society. According to the learned A.G.A. in liew of the law laid down by Supreme Court in State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021 no compromise can be entered into by the prosecutrix in proceedings under the POCSO Act. As such, no interfrence is warranted by this Court in present application. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. On the other hand Mr. Mohd. Hamid, the learned counsel representing the prosecutrix/opposite party-5 in support of this application submits that he has received instructions not to oppose this application. He further submits that it is now an admitted fact to the parties that the prosecutrix has solemnized marriage with accused applicant and is residing with him as his legally wedded wife. From the aforesaid wedlock two children were born. The parties alongwith their children are living together as a happy family. He therefore contends that he cannot have any objection, in case the present application is decided by this Court taking into consideration aforementioned facts. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix. The prosecutrix is now the legally wedded wife of applicant. From the aforesaid wedlock two children were born. Furthermore the parties are living together as a happy family. Having heard the learned counsel for applicants, the learned A.G.A. for State/opposite party-1, the learned counsel representing the prosecutrix/opposite party-5 and upon perusal of record, this Court finds that the matter requires consideration. Notice on behalf of State/opposite party - 1 has been accepted by the learned A.G.A. Mr. Mohd. Hamid, has put in appearance on behalf of the prosecutrix/opposite party-5. Issue notice to first informant/opposite party-2. All the opposite parties may file their respective counter affidavits within four weeks. Applicant will have two weeks thereafter to file his rejoinder affidavit. List this application for admission on 1.7.2025. When the matter is listed next, the name of Mr. Mohd. Hamid shall be published in the cause list as counsel for prosecutrix/opposite party-5. Considering the facts and circumstances of the case, the submissions urged by learned counsel for applicants in support of this application as noted herein above, as well as the judgements of the Supreme Court referred to above, as an interim measure, it is hereby provided that until further orders of this Court, further proceedings in Sessions Case No. 609 of 2020 (State Vs. Vipin Prasad) relating to Case Crime No. 245 of 2018 Under Section 363, 366, 376, I.P.C. And Section 3/4 Protection of Children's From Sexual Offence Act, Police Station Severahi, District Kushinagar now Pending in the Court of Special Judge POCSO Act Court No. 1, Kushinagar at Padrauna, shall remain stayed. Order Date :- 22.4.2025 Arshad