High Court · 2025

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Arvind Prabodh Dubey, learned counsel for the applicant, Sri Vinod Pandey, learned counsel for opposite party no. 2 and learned AGA for the State.

2. The instant application has been preferred for challenging order dated 07.03.2025 passed by learned Special Judge, POCSO-II, Gorakhpur in S.T. No. 1090 of 2021 (State vs. Anil Kumar Singh) arising out of Case Crime No. 92 of 2021 in pursuance to Sections 376, 506 IPC and Section 5/6 of POCSO Act, Police Station Cantt, District Gorakhpur.

3. Learned counsel for the applicant submitted that the entire trial is based upon a single question in respect of determination of age pertains to the victime i.e. opposite party no. 2 which attracted Section 5/6 of POCSO Act and the trial was commenced after committing before the learned Court of Session Judge, POCSO Act. It is further submitted by learned counsel for the applicant that in respect of determination of actual age, relevant educational documents have been proved by concerned Institution but at the same time, as per the demand of defence, two defence witnesses have been summoned i.e. Principal and Clerk of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria and Principal, Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur.

4. In compliance of summoning of defence witnesses, Rohit Singh (Clerk) being DW-1 of Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur recorded his testimony, wherein the entire disclosure has been made in respect of Priya Pandey D/o mother Rajvendi Pandey and father Abhay Pandey R/o Jharkhandi Mandir, Kunraghat, Gorakhpur and also submitted that Priya Pandey studied from Class VIth to Xth i.e. from education session 2004-05 to 2008-09 at Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur and the date of birth of Priya Pandey is recorded in the educational records as 26.04.1994, through this date of birth, Priya Pandey appeared in Class Xth examination with Roll No. 5252536.

5. DW-1 also submitted that the date of birth of Priya Pandey as 26.04.1994 has been received from transfer certificate issued by earlier Institution i.e. Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria.

6. In pursuance to summoning orders issued against Principal and Clerk of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria, it has been informed through concerned police station that the same Institution has already been closed for the last 5 to 6 years.

7. Applicant preferred specific objection that once the defence witnesses has already been allowed by learned court concerned, it is mandated in pursuance to Section 91 of Cr.P.C. to call/summon concerned competent authorities of educational department for receiving the documents which corroborates the date of birth as submitted by DW-1 i.e. 26.04.1994 since it is the sole defence available to the applicant for proving his not guilty. to brought the defence

8. Learned counsel for the applicant submitted that while passing order dated 07.03.2025, learned Court of Special Judge, POCSO- II, Gorakhpur returned with the finding that it is the onus and burden of the relevant certificates/documents on record for proving his non-involvement, specifically attraction of Section 5/6 of POCSO Act. Learned counsel for the applicant further submitted that while assailing order dated 07.03.2025 that the custodian of the relevant documents in shape of certificates/register in shape of scroll pertaining to victim can only be obtained by way of summoning the concerned authorities of the educational department, it is impossible to produce those documents which are not in the custody of the applicant and as such the finding recorded by learned concerned court is perverse and the same is liable to be set-aside.

9. Per contra, Sri Vinod Pandey, learned counsel for opposite party no. 2 vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for the applicant on the ground that the tactics adopted by the applicant is only to delay the proceedings which is near about finalization in shape of arriving over the stage of Section 313 Cr.P.C. and once it has already been substantially proved that the victim was minor at the time of committing offence by the applicant, there is hardly any case arising for controverting the date of birth which is not related to the victim but one Priya Pandey who is no concerned with the matter. So far as regarding State is concerned, learned AGA supported the order dated 07.03.2025 and submitted that last opportunity has already been granted in favour of the applicant for producing relevant documents which might be in nature of controverting the age which has been mentioned by the prosecution and as such the instant application is liable to be dismissed.

10. After hearing rival submissions extended by learned counsel for the parties, one thing is consensus arrived by both the learned counsels appearing for the applicant as well as for opposite party no. 2 that victim has already received education from Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur, the testimony recorded by DW-1 is specifically and crystal clear that one Priya Pandey whose parental identity is the same as having with the victim and as such the same cannot be disputed only on the instance of change of name since no cross-examination has been available in respect of the name concerned and the identity of one Priya Pandey which is not matching with the parental identity of the victim.

11. The determination of age which has been obtained by institution of DW-1 from earlier Institution is material to be examined by learned court concerned and as such denial to the objection preferred at the behest of the applicant was unjustified.

12. If in any case any education institution has inoperative, it is possible to call upon concerned competent authorities from the educational department who have the relevant documents of that period when the Institution was operative, so far as regarding the exercise of power is concerned, the same is very much available under Section 91 of Cr.P.C. and by way of not invoking the same order dated 07.03.2025 is not sustainable in the eye of law.

13. In view of aforementioned facts and circumstances, order dated 07.03.2025 passed by learned Special Judge, POCSO-II, Gorakhpur in S.T. No. 1090 of 2021 (State vs. Anil Kumar Singh) arising out of Case Crime No. 92 of 2021 in pursuance to Sections 376, 506 IPC and Section 5/6 of POCSO Act, Police Station Cantt, District Gorakhpur is hereby set-aside and the matter is remitted back to learned Court of Special Judge, POCSO-II, Gorakhpur for ensuring the documents as suggested by defence in shape of educational certificate/records of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria which might having date of birth of the victim was that which may be corroborated with the statement recorded by DW-1.

14. The instant application stands allowed accordingly. Order Date :- 18.4.2025 #Vik/- VIKRAM GUPTA VIKRAM GUPTA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Arvind Prabodh Dubey, learned counsel for the applicant, Sri Vinod Pandey, learned counsel for opposite party no. 2 and learned AGA for the State.

2. The instant application has been preferred for challenging order dated 07.03.2025 passed by learned Special Judge, POCSO-II, Gorakhpur in S.T. No. 1090 of 2021 (State vs. Anil Kumar Singh) arising out of Case Crime No. 92 of 2021 in pursuance to Sections 376, 506 IPC and Section 5/6 of POCSO Act, Police Station Cantt, District Gorakhpur.

3. Learned counsel for the applicant submitted that the entire trial is based upon a single question in respect of determination of age pertains to the victime i.e. opposite party no. 2 which attracted Section 5/6 of POCSO Act and the trial was commenced after committing before the learned Court of Session Judge, POCSO Act. It is further submitted by learned counsel for the applicant that in respect of determination of actual age, relevant educational documents have been proved by concerned Institution but at the same time, as per the demand of defence, two defence witnesses have been summoned i.e. Principal and Clerk of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria and Principal, Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur.

4. In compliance of summoning of defence witnesses, Rohit Singh (Clerk) being DW-1 of Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur recorded his testimony, wherein the entire disclosure has been made in respect of Priya Pandey D/o mother Rajvendi Pandey and father Abhay Pandey R/o Jharkhandi Mandir, Kunraghat, Gorakhpur and also submitted that Priya Pandey studied from Class VIth to Xth i.e. from education session 2004-05 to 2008-09 at Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur and the date of birth of Priya Pandey is recorded in the educational records as 26.04.1994, through this date of birth, Priya Pandey appeared in Class Xth examination with Roll No. 5252536.

5. DW-1 also submitted that the date of birth of Priya Pandey as 26.04.1994 has been received from transfer certificate issued by earlier Institution i.e. Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria.

6. In pursuance to summoning orders issued against Principal and Clerk of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria, it has been informed through concerned police station that the same Institution has already been closed for the last 5 to 6 years.

7. Applicant preferred specific objection that once the defence witnesses has already been allowed by learned court concerned, it is mandated in pursuance to Section 91 of Cr.P.C. to call/summon concerned competent authorities of educational department for receiving the documents which corroborates the date of birth as submitted by DW-1 i.e. 26.04.1994 since it is the sole defence available to the applicant for proving his not guilty. to brought the defence

8. Learned counsel for the applicant submitted that while passing order dated 07.03.2025, learned Court of Special Judge, POCSO- II, Gorakhpur returned with the finding that it is the onus and burden of the relevant certificates/documents on record for proving his non-involvement, specifically attraction of Section 5/6 of POCSO Act. Learned counsel for the applicant further submitted that while assailing order dated 07.03.2025 that the custodian of the relevant documents in shape of certificates/register in shape of scroll pertaining to victim can only be obtained by way of summoning the concerned authorities of the educational department, it is impossible to produce those documents which are not in the custody of the applicant and as such the finding recorded by learned concerned court is perverse and the same is liable to be set-aside.

9. Per contra, Sri Vinod Pandey, learned counsel for opposite party no. 2 vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for the applicant on the ground that the tactics adopted by the applicant is only to delay the proceedings which is near about finalization in shape of arriving over the stage of Section 313 Cr.P.C. and once it has already been substantially proved that the victim was minor at the time of committing offence by the applicant, there is hardly any case arising for controverting the date of birth which is not related to the victim but one Priya Pandey who is no concerned with the matter. So far as regarding State is concerned, learned AGA supported the order dated 07.03.2025 and submitted that last opportunity has already been granted in favour of the applicant for producing relevant documents which might be in nature of controverting the age which has been mentioned by the prosecution and as such the instant application is liable to be dismissed.

10. After hearing rival submissions extended by learned counsel for the parties, one thing is consensus arrived by both the learned counsels appearing for the applicant as well as for opposite party no. 2 that victim has already received education from Udaya Public School, Mahadeo Jharkhandi, Kunraghat, Gorakhpur, the testimony recorded by DW-1 is specifically and crystal clear that one Priya Pandey whose parental identity is the same as having with the victim and as such the same cannot be disputed only on the instance of change of name since no cross-examination has been available in respect of the name concerned and the identity of one Priya Pandey which is not matching with the parental identity of the victim.

11. The determination of age which has been obtained by institution of DW-1 from earlier Institution is material to be examined by learned court concerned and as such denial to the objection preferred at the behest of the applicant was unjustified.

12. If in any case any education institution has inoperative, it is possible to call upon concerned competent authorities from the educational department who have the relevant documents of that period when the Institution was operative, so far as regarding the exercise of power is concerned, the same is very much available under Section 91 of Cr.P.C. and by way of not invoking the same order dated 07.03.2025 is not sustainable in the eye of law.

13. In view of aforementioned facts and circumstances, order dated 07.03.2025 passed by learned Special Judge, POCSO-II, Gorakhpur in S.T. No. 1090 of 2021 (State vs. Anil Kumar Singh) arising out of Case Crime No. 92 of 2021 in pursuance to Sections 376, 506 IPC and Section 5/6 of POCSO Act, Police Station Cantt, District Gorakhpur is hereby set-aside and the matter is remitted back to learned Court of Special Judge, POCSO-II, Gorakhpur for ensuring the documents as suggested by defence in shape of educational certificate/records of Netaji Subhas Chandra Bose Educational Institution in Town Area Bhatni, Deoria which might having date of birth of the victim was that which may be corroborated with the statement recorded by DW-1.

14. The instant application stands allowed accordingly. Order Date :- 18.4.2025 #Vik/- VIKRAM GUPTA VIKRAM GUPTA High Court of Judicature at Allahabad High Court of Judicature at Allahabad