Ayyub Malik v. State Of Uttarakhand another

Presence:- Mr. Akash Saniyal, learned counsel holding brief of Mr. Aditya Singh, learned counsel for the applicant. Mr. S.S. Chauhan, learned Deputy Advocate General along with Mr. Vikas Uniyal, learned Brief Holder for the State. Mr. Aditya Pratap Singh, learned counsel for respondent no.2. ---------------------------------------------------------------------- Hon'ble Pankaj Purohit, J. By means of present C482 application, applicant has put to challenge the summoning order dated 07.01.2021 as well as the entire proceedings of Criminal Case No.10 of 2021, State vs. Ayyub, pending in the learned Additional District Judge, Haridwar.

2. Brief facts of the case are that respondent no.2 lodged an FIR against the applicant on 01.06.2020 with the allegation that on 24.05.2020 at around 6 o’ clock in the morning daughter of respondent no.2, aged 17 years, went somewhere from the house without informing anyone; after searching for long, she was nowhere to be found, one Vasim told respondent no.2 that he saw his daughter going with applicant in the morning. It is further stated in the FIR that applicant induced respondent’s daughter and took her with him. 1

3. After lodging of the first information report, the Investigating Officer submitted the charge- sheet on 11.11.2020. Thereafter, learned Magistrate took cognizance on the said charge-sheet vide its order dated

07.01.2021 and issued summons to the applicant.

5. Heard learned counsel for the parties. Learned counsel for the applicants submits that while taking cognizance, learned Magistrate failed to appreciate the material evidence collected by the Investigating Officer and passed impugned summoning order. He further submits that applicant got married on 29.05.2020 with respondent no.2’s daughter and the present FIR is lodged on 01.06.2020 and applicant has not assaulted respondent’s daughter physically. He also submits that from perusal of the FIR as well as statement of witnesses, no offence under Sections 363, 366, 376(2)(6) and 5(5)/6 POCSO Act is made out against the applicant.

6. State has filed its counter affidavit. In the counter affidavit of the State, it is stated that victim is minor at the time of alleged incident as per the statements of the Manager and Principal of the School and the trial court after appreciating all the evidence available on record has rightly summoned the applicant.

7. Learned counsel for respondent no.2 submits that the applicant has raised the serious disputed question of facts before this Court and the same can only be examined during course of trial, thus the present C482 application is liable to be dismissed

8. Respondent no.2 has also filed his counter affidavit. In the said counter affidavit, it is stated that 2 once the daughter of respondent no.2 has not attained the age of majority then the alleged marriage has no value in the eyes of law. In the counter affidavit, respondent no.2 has adopted the version of the counter affidavit filed on behalf of the State.

9. Learned counsel for respondent no.2 relied upon the judgment rendered by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No.3 of 2023 in IN RE: Right to Privacy of Adolescents, Criminal Appeal No.1451 of 2024 decided on 20.08.2024. Relevant paras of the said judgment are quoted hereinbelow:- “37. It is the responsibility of the State to take care of helpless victims of such heinous offences. Time and again, we have held that the right to live a dignified life is an integral part of the fundamental right guaranteed under Article 21 of the Constitution of India. Article 21 encompasses the right to lead a healthy life. The minor child, who is the victim of the offences under the POCSO Act, is also deprived of the fundamental right to live a dignified and healthy life. The same is the case of the child born to the victim as a result of the offence. All the provisions of the JJ Act regarding taking care of such children and rehabilitating them are consistent with Article 21 of the Constitution of India. Therefore, immediately after the knowledge of the commission of a heinous offence under the POCSO Act, the State, its agencies and instrumentalities must step in and render all possible aid to the victim children, which will enable them to lead a dignified life. The failure to do so will amount to a violation of the fundamental rights guaranteed to the victim children under Article 21. The police must strictly implement subsection (6) of Section 19 of the POCSO Act. If that is not done, the victim children are deprived of the benefits of the welfare measures under the JJ Act. Compliance with Section 19(6) is of vital importance. Non-compliance thereof will lead to a violation of Article 21.

38. Unfortunately, in our society, due to whatever reasons, we find that there are cases and cases where the parents of the victims of the offences under the POSCO Act abandon the victims. In such a case, it is the duty of the State to provide shelter, food, clothing, education opportunities, etc., to the victim of the offences as provided in law. Even the child born to such a victim needs to be taken care of in a similar manner by the State. After the victim attains the majority, the State will have to ensure that the victim of the offence can stand on his/her legs and, at least, think of leading a 3 dignified life. That is precisely what Section 46 of the JJ Act provides. Sadly, in the present case, there is a complete failure of the State machinery. Nobody came to rescue the victim of the offence, and thus, for her survival, no option was left to her but to seek shelter with the accused.”

10. Having heard learned counsel for the parties and having gone through the entire record, this Court is of the view that the argument advanced by learned counsel for the applicant is not sustainable at this stage as the same would require evidence to substantiate the said argument. This Court while sitting in the inherent jurisdiction under Section 482 of Cr.P.C. is not enjoined to sift the evidence between the parties and the same can be done only by the trial court. Accordingly, no case is made out to interfere in the present C482 application and the same is dismissed.

11. Pending application, if any, stands disposed of accordingly. AK (Pankaj Purohit, J.) 19.06.2025 4