Learned A.G.A. has referred to the judgment of Supreme Court in State of Kerala v. Hafsal Rahman N.R., Special Leave Petition

1. Heard Mr. Rupendra Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 528 BNSS has been served upon first informant opposite party No.2 on 25.02.2025. However, in spite of service of notice upon first informant opposite party-2 neither any counter affidavit has been filed by first informant/opposite party No.2 in opposition to this application nor anyone has put appearance on his behalf to oppose this application even in revised call.

4. Applicant-Wasit Alias Wasit Ali, who is a named as well as charge sheeted accused and facing trial before Court below, has now 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 quash the charge sheet dated 08.09.2024 and cognizance order dated 19.12.2024 as well as entire proceeding of Criminal Case No.424 of 2024 (State Vs. Wasit) arising out of Case Crime No.424 of 2024 under section 137 (2), 87, 64 BNS and 3/4 POCSO Act, Police Station Mundha Pandey, District Moradabad, in term of the compromise made in between the applicant and opposite party no.2 (informant) dated 29.01.2025, pending in the court of Principal Judge (Juvenile Justice Board), Moradabad. It is further prayed that this Hon'ble Court may graciously be pleased to stay the entire proceeding of Criminal Case No.424 of 2024 (State Vs. Wasit) arising out of Case Crime No.424 of 2024 under section 137(2), 87, 64 BNS and 3/4 POCSO Act, Police Station Mundha Pandey, District Moradabad, in term of the compromise made in between the applicant and opposite party no.2 (informant) dated 29.01.2025, pending in the court of Principal Judge (Juvenile Justice Board), Moradabad, during the pendency of the present application under section 528 of BNSS, 2023 before this Hon'ble Court. Otherwise the applicant shall suffer irreparable loss and injury. And/or pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

5. At the very outset, the learned counsel for applicant submits that due to inadvertence, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Moradabad, who are necessary and proper parties in this application under Section 528 BNSS., as it challenges the proceedings under POCSO Act also could not be impleaded as party respondents in present application. He, therefore, seeks permission of Court to amend the cause title of this application by impleading respondents/opposite parties 3 and 4. aforementioned authorities

6. Prayer made by the learned counsel for applicant is bona-fide. Same is not opposed by the learned A.G.A.

7. Accordingly, it is allowed.

8. Let necessary amendment/correction in the cause title of this application be carried out by the learned counsel for applicant during course of the day by impleading, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Mau as party respondents/opposite parties 3 and 4.

9. Learned counsel for applicant submits that present applicant has been filed challenging the impugned proceedings on two grounds i.e. merits as well as on the basis of compromise. With regard to the second ground raised in support of this application, the learned counsel for applicant submits that during pendency of above- mentioned criminal proceedings parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a compromise was entered into. Subsequently, the terms of compromise were reduced in writing by way of a compromise deed dated 29.01.2025. Copy of said compromise deed has been brought on record as annexure 8 to the affidavit filed in support of this application.

10. On the above premise, the learned counsel for applicant submits that the impugned criminal proceedings are liable to be quashed by this Court. In view of the compromise entered into by the parties no useful purpose shall now be served in prolonging the criminal prosecution of applicant as the chances of conviction of applicant are not only remote but also bleak in view of the compromise entered into by the parties. He, therefore contends that present application is therefore, liable to be allowed by this Court.

11. So far as the challenge to the impugned proceedings on the merits is concerned, the learned counsel for applicant submits that as per the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., copies of which are on record at pages 43 and 51 of the paper book, the learned counsel for applicants submits that prosecutrix herself is a willing party and secondly, no overt act was committed by the applicant so as to dislodge the modesty of the prosecutrix by committing aggravated sexual assault or penetrative sexual assault. He, therefore, submits that in view of above, no criminality can be alleged to have been committed by applicant. Parties wanted to solemnize marriage but they were below 18 years of age. Consequently, they refrained from doing so. On the above conspectus, he, therefore, submits that impugned proceedings cannot be sustained in law and fact and, therefore, same are liable to be quashed 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. has 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 that there can be no compromise in proceedings under the POCSO Act. In view of above, the learned A.G.A. submits that the compromise entered into by the parties as is evident from the compromise deed, copy of which has been brought on record at page 47 of the paper book is wholly misconceived. Therefore, no interference is warranted by this Court in present application on the basis of said compromise.

13. With regard to the challenge to the impugned proceedings on the merits of the case is concerned, the learned A.G.A. submits that it is an undisputed fact that prosecutrix is minor as she was below 18 years of age on the date of occurrence. Whether, prosecutrix herself accompanied the applicant willingly or she was enticed away by the applicant is a question of fact which cannot be decided in proceedings under Section 528 BNSS. Same is a triable issue and can be answered either way during course of trial where parties can lead evidence in respect of their respective cases. Learned A.G.A. then invited the attention of the Court to the charge sheet/police submitted by Investigating Officer, copy of which has been appended as annexure-1 to the affidavit filed in support of present application. With reference to the same, the learned A.G.A. submits that in the aforementioned charge sheet/police report as many as 7 prosecution witnesses have been nominated. However, the statements of the said witnesses previously recorded under Section 161 Cr.P.C. have not been brought on record. Furthermore, no averment has been made in the affidavit with regard to the other material collected by the Investigating Officer during course of investigation and relied upon in the charge sheet now the said material has not been brought on record. In the absence of above, the veracity of the proceedings pending against applicant before Court below cannot be examined by this Court. To buttress his submission the learned A.G.A. has referred to the judgment of Supreme Court in Kaptan Singh Vs. State of U.P. (2021) 9 SCC 35. On the above premise, the learned A.G.A. thus submits that no interference is warranted by this Court in present application.

14. When confronted with above, the learned counsel for applicant could not overcome the same.

15. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. As such, no good ground exists to entertain the present application.

16. As a result, the present application fails and is liable to be dismissed.

17. It is, accordingly, dismissed. Order Date :- 8.5.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad

1. Heard Mr. Rupendra Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 528 BNSS has been served upon first informant opposite party No.2 on 25.02.2025. However, in spite of service of notice upon first informant opposite party-2 neither any counter affidavit has been filed by first informant/opposite party No.2 in opposition to this application nor anyone has put appearance on his behalf to oppose this application even in revised call.

4. Applicant-Wasit Alias Wasit Ali, who is a named as well as charge sheeted accused and facing trial before Court below, has now 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 quash the charge sheet dated 08.09.2024 and cognizance order dated 19.12.2024 as well as entire proceeding of Criminal Case No.424 of 2024 (State Vs. Wasit) arising out of Case Crime No.424 of 2024 under section 137 (2), 87, 64 BNS and 3/4 POCSO Act, Police Station Mundha Pandey, District Moradabad, in term of the compromise made in between the applicant and opposite party no.2 (informant) dated 29.01.2025, pending in the court of Principal Judge (Juvenile Justice Board), Moradabad. It is further prayed that this Hon'ble Court may graciously be pleased to stay the entire proceeding of Criminal Case No.424 of 2024 (State Vs. Wasit) arising out of Case Crime No.424 of 2024 under section 137(2), 87, 64 BNS and 3/4 POCSO Act, Police Station Mundha Pandey, District Moradabad, in term of the compromise made in between the applicant and opposite party no.2 (informant) dated 29.01.2025, pending in the court of Principal Judge (Juvenile Justice Board), Moradabad, during the pendency of the present application under section 528 of BNSS, 2023 before this Hon'ble Court. Otherwise the applicant shall suffer irreparable loss and injury. And/or pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

5. At the very outset, the learned counsel for applicant submits that due to inadvertence, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Moradabad, who are necessary and proper parties in this application under Section 528 BNSS., as it challenges the proceedings under POCSO Act also could not be impleaded as party respondents in present application. He, therefore, seeks permission of Court to amend the cause title of this application by impleading respondents/opposite parties 3 and 4. aforementioned authorities

6. Prayer made by the learned counsel for applicant is bona-fide. Same is not opposed by the learned A.G.A.

7. Accordingly, it is allowed.

8. Let necessary amendment/correction in the cause title of this application be carried out by the learned counsel for applicant during course of the day by impleading, the High Court Legal Services Committee, High Court, Allahabad and the District Legal Services Committee, Mau as party respondents/opposite parties 3 and 4.

9. Learned counsel for applicant submits that present applicant has been filed challenging the impugned proceedings on two grounds i.e. merits as well as on the basis of compromise. With regard to the second ground raised in support of this application, the learned counsel for applicant submits that during pendency of above- mentioned criminal proceedings parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a compromise was entered into. Subsequently, the terms of compromise were reduced in writing by way of a compromise deed dated 29.01.2025. Copy of said compromise deed has been brought on record as annexure 8 to the affidavit filed in support of this application.

10. On the above premise, the learned counsel for applicant submits that the impugned criminal proceedings are liable to be quashed by this Court. In view of the compromise entered into by the parties no useful purpose shall now be served in prolonging the criminal prosecution of applicant as the chances of conviction of applicant are not only remote but also bleak in view of the compromise entered into by the parties. He, therefore contends that present application is therefore, liable to be allowed by this Court.

11. So far as the challenge to the impugned proceedings on the merits is concerned, the learned counsel for applicant submits that as per the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., copies of which are on record at pages 43 and 51 of the paper book, the learned counsel for applicants submits that prosecutrix herself is a willing party and secondly, no overt act was committed by the applicant so as to dislodge the modesty of the prosecutrix by committing aggravated sexual assault or penetrative sexual assault. He, therefore, submits that in view of above, no criminality can be alleged to have been committed by applicant. Parties wanted to solemnize marriage but they were below 18 years of age. Consequently, they refrained from doing so. On the above conspectus, he, therefore, submits that impugned proceedings cannot be sustained in law and fact and, therefore, same are liable to be quashed 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. has 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 that there can be no compromise in proceedings under the POCSO Act. In view of above, the learned A.G.A. submits that the compromise entered into by the parties as is evident from the compromise deed, copy of which has been brought on record at page 47 of the paper book is wholly misconceived. Therefore, no interference is warranted by this Court in present application on the basis of said compromise.

13. With regard to the challenge to the impugned proceedings on the merits of the case is concerned, the learned A.G.A. submits that it is an undisputed fact that prosecutrix is minor as she was below 18 years of age on the date of occurrence. Whether, prosecutrix herself accompanied the applicant willingly or she was enticed away by the applicant is a question of fact which cannot be decided in proceedings under Section 528 BNSS. Same is a triable issue and can be answered either way during course of trial where parties can lead evidence in respect of their respective cases. Learned A.G.A. then invited the attention of the Court to the charge sheet/police submitted by Investigating Officer, copy of which has been appended as annexure-1 to the affidavit filed in support of present application. With reference to the same, the learned A.G.A. submits that in the aforementioned charge sheet/police report as many as 7 prosecution witnesses have been nominated. However, the statements of the said witnesses previously recorded under Section 161 Cr.P.C. have not been brought on record. Furthermore, no averment has been made in the affidavit with regard to the other material collected by the Investigating Officer during course of investigation and relied upon in the charge sheet now the said material has not been brought on record. In the absence of above, the veracity of the proceedings pending against applicant before Court below cannot be examined by this Court. To buttress his submission the learned A.G.A. has referred to the judgment of Supreme Court in Kaptan Singh Vs. State of U.P. (2021) 9 SCC 35. On the above premise, the learned A.G.A. thus submits that no interference is warranted by this Court in present application.

14. When confronted with above, the learned counsel for applicant could not overcome the same.

15. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. As such, no good ground exists to entertain the present application.

16. As a result, the present application fails and is liable to be dismissed.

17. It is, accordingly, dismissed. Order Date :- 8.5.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad