Further the Apex Court in the case of Ramji Lal Bairwa Another v. State of Rajasthan Others

2. Heard Sri Sandip Kumar Shukla, learned counsel for the applicant, Sri Shashi Kant Pandey, learned counsel for the State and perused the material brought on record. Sri Zahid Khan, learned counsel for the opposite party no.2 is not present even when the matter is taken in the revised list.

3. This application under Section 482 Cr.P.C. has been filed by the applicant- Amrit Lal Pasi, with the prayer to allow this application and quash the entire proceeding as well as impugned charge-sheet dated 30.07.2015 & cognizance order dated 17.08.2015 in Special Trial No. 73 of 2015 (State Vs. Amrit Lal Pasi) arising out of Case Crime No. 146 of 2014, under Sections 363, 366 I.P.C. and Section 3/4 POCSO Act, Police Station Husainganj, District Fatehpur, pending in the Court of Additional Session Judge / Special Judge (POCSO Act), Fatehpur with a further prayer that proceeding of the aforesaid case be stayed.

4. The facts in the case are that a first information report was lodged on 28.05.2014 against the applicant by the opposite party no.2 with the allegation that he is a labour and takes care of his family from the said income. His father has died around 6-7 years back and he is the person taking care of his family. On 27.05.2014 a baraat had come to his village and his family was busy in it wherein at about 06 p.m. after vidai when he went to his house where other family members were present his sister was not at the house. He and his family members then searched for his sister throughout night and at various places but she could not be traced. In the morning his brother and he again started searching his sister and them some people of the village told him that the applicant Amrit Lal Pasi has lured her and enticed her away. His sister is a minor and is a student of class-6. Her date of birth is 17.07.2002. She while going from the house has taken jewellery of his wife worth about Rs. 50,000/- and cash Rs. 5000/-. Amrit Lal is a boy of bad antecedents. A report be lodged and action be taken.

5. The investigation in the matter took place and the victim was recovered who was interrogated under Section 161 Cr.P.C. and also her statement under Section 164 Cr.P.C. was recorded. Her medical examination was conducted by the C.M.O. concerned who opined her to be about 20 years of age. The investigation concluded and a Charge-Sheet No. 84/2015 dated 30.07.2015 was submitted against the applicant for offences under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act on which the court concerned vide order dated 17.08.2015 took cognizance and summoned the accused. The present application under Section 482 Cr.P.C. has thus been filed before this Court.

6. Learned counsel for the applicant submitted that the Investigating Officer has considered the School Leaving Certificate of class-6th of the victim and has charged the applicant under the POCSO Act which is incorrect. It is submitted that the age given by the C.M.O. should prevail over the said document. Further while placing paragraph 13 to 16 and 19 of the affidavit and annexure-9 particularly it is submitted that the victim and the applicant have solemnized marriage and are living together as husband & wife since the last more than 08 years and 02 children have taken birth from the said relationship. It is submitted that the compromise / settlement dated 05.08.2023 has also been drawn between the victim and the applicant and they have amicably entered into a settlement through the same. It is submitted that the proceedings be thus quashed.

7. Per contra, learned counsel for the State opposed the prayer for quashing. It is submitted that the facts of the case are that the applicant as of now has been charged under the POCSO Act apart from other sections of I.P.C. It is submitted that in so far as determination of age of the victim is concerned, the same is to be done by the trial court at the appropriate stage. It is submitted that since the matter relates to a case under the POCSO Act, the same cannot be quashed on the basis of compromise. It is submitted that the present case is such in which the trial has to take place and reach to its logical conclusion. It is submitted that the present application under Section 482 Cr.P.C. be dismissed.

8. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant is named in the first information report and there is an allegation of his enticing away and alluring the victim girl who was stated to be a minor. The charge-sheet has been submitted against the applicant in Sections of I.P.C. and POCSO Act on which the court concerned has taken cognizance and summoned him. The fact as to whether the victim was a minor at the time of incident or not has to be decided by the trial court at the appropriate stage, if raised before it.

9. In so far as the proceedings under the POCSO Act is concerned, the same cannot be quashed in view of the judgement of the Apex Court in the case of In Re: Right to Privacy of Adolescents [Suo Motu Writ Petition (C) No. 3 of 2023] decided on 20.08.2024 paragraph 22, 23 & 23.1. Further the Apex Court in the case of Ramji Lal Bairwa & Another Vs. State of Rajasthan & Others: [Criminal Appeal No. 3403 of 2023 @ SLP (Crl.) No. 12912 of 2022] decided on 07.11.2024 held that offence under the POCSO Act is heinous offence and not of private nature and hence the same cannot be quashed on the basis of compromise. Further this Court in the case of Sanjeev Kumar Vs. State of U.P. and 03 Others: Neutral Citation No. - 2024:AHC:56128 in Application U/S 482 9169 of 2024 has also observed that offence under the POCSO Act cannot be quashed on the basis of compromise.

10. Looking to the facts of the matter, the limited argument on behalf of the applicant and the judgements of the Apex Court in the case of In Re: Right to Privacy of Adolescents (supra), Ramji Lal Bairwa & Another (supra) and Sanjeev Kumar (supra), as the proceedings of the present case are under the POCSO Act also, the same cannot be quashed.

11. The present petition is devoid of any merits and is accordingly, dismissed. Order Date :- 6.1.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

2. Heard Sri Sandip Kumar Shukla, learned counsel for the applicant, Sri Shashi Kant Pandey, learned counsel for the State and perused the material brought on record. Sri Zahid Khan, learned counsel for the opposite party no.2 is not present even when the matter is taken in the revised list.

3. This application under Section 482 Cr.P.C. has been filed by the applicant- Amrit Lal Pasi, with the prayer to allow this application and quash the entire proceeding as well as impugned charge-sheet dated 30.07.2015 & cognizance order dated 17.08.2015 in Special Trial No. 73 of 2015 (State Vs. Amrit Lal Pasi) arising out of Case Crime No. 146 of 2014, under Sections 363, 366 I.P.C. and Section 3/4 POCSO Act, Police Station Husainganj, District Fatehpur, pending in the Court of Additional Session Judge / Special Judge (POCSO Act), Fatehpur with a further prayer that proceeding of the aforesaid case be stayed.

4. The facts in the case are that a first information report was lodged on 28.05.2014 against the applicant by the opposite party no.2 with the allegation that he is a labour and takes care of his family from the said income. His father has died around 6-7 years back and he is the person taking care of his family. On 27.05.2014 a baraat had come to his village and his family was busy in it wherein at about 06 p.m. after vidai when he went to his house where other family members were present his sister was not at the house. He and his family members then searched for his sister throughout night and at various places but she could not be traced. In the morning his brother and he again started searching his sister and them some people of the village told him that the applicant Amrit Lal Pasi has lured her and enticed her away. His sister is a minor and is a student of class-6. Her date of birth is 17.07.2002. She while going from the house has taken jewellery of his wife worth about Rs. 50,000/- and cash Rs. 5000/-. Amrit Lal is a boy of bad antecedents. A report be lodged and action be taken.

5. The investigation in the matter took place and the victim was recovered who was interrogated under Section 161 Cr.P.C. and also her statement under Section 164 Cr.P.C. was recorded. Her medical examination was conducted by the C.M.O. concerned who opined her to be about 20 years of age. The investigation concluded and a Charge-Sheet No. 84/2015 dated 30.07.2015 was submitted against the applicant for offences under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act on which the court concerned vide order dated 17.08.2015 took cognizance and summoned the accused. The present application under Section 482 Cr.P.C. has thus been filed before this Court.

6. Learned counsel for the applicant submitted that the Investigating Officer has considered the School Leaving Certificate of class-6th of the victim and has charged the applicant under the POCSO Act which is incorrect. It is submitted that the age given by the C.M.O. should prevail over the said document. Further while placing paragraph 13 to 16 and 19 of the affidavit and annexure-9 particularly it is submitted that the victim and the applicant have solemnized marriage and are living together as husband & wife since the last more than 08 years and 02 children have taken birth from the said relationship. It is submitted that the compromise / settlement dated 05.08.2023 has also been drawn between the victim and the applicant and they have amicably entered into a settlement through the same. It is submitted that the proceedings be thus quashed.

7. Per contra, learned counsel for the State opposed the prayer for quashing. It is submitted that the facts of the case are that the applicant as of now has been charged under the POCSO Act apart from other sections of I.P.C. It is submitted that in so far as determination of age of the victim is concerned, the same is to be done by the trial court at the appropriate stage. It is submitted that since the matter relates to a case under the POCSO Act, the same cannot be quashed on the basis of compromise. It is submitted that the present case is such in which the trial has to take place and reach to its logical conclusion. It is submitted that the present application under Section 482 Cr.P.C. be dismissed.

8. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant is named in the first information report and there is an allegation of his enticing away and alluring the victim girl who was stated to be a minor. The charge-sheet has been submitted against the applicant in Sections of I.P.C. and POCSO Act on which the court concerned has taken cognizance and summoned him. The fact as to whether the victim was a minor at the time of incident or not has to be decided by the trial court at the appropriate stage, if raised before it.

9. In so far as the proceedings under the POCSO Act is concerned, the same cannot be quashed in view of the judgement of the Apex Court in the case of In Re: Right to Privacy of Adolescents [Suo Motu Writ Petition (C) No. 3 of 2023] decided on 20.08.2024 paragraph 22, 23 & 23.1. Further the Apex Court in the case of Ramji Lal Bairwa & Another Vs. State of Rajasthan & Others: [Criminal Appeal No. 3403 of 2023 @ SLP (Crl.) No. 12912 of 2022] decided on 07.11.2024 held that offence under the POCSO Act is heinous offence and not of private nature and hence the same cannot be quashed on the basis of compromise. Further this Court in the case of Sanjeev Kumar Vs. State of U.P. and 03 Others: Neutral Citation No. - 2024:AHC:56128 in Application U/S 482 9169 of 2024 has also observed that offence under the POCSO Act cannot be quashed on the basis of compromise.

10. Looking to the facts of the matter, the limited argument on behalf of the applicant and the judgements of the Apex Court in the case of In Re: Right to Privacy of Adolescents (supra), Ramji Lal Bairwa & Another (supra) and Sanjeev Kumar (supra), as the proceedings of the present case are under the POCSO Act also, the same cannot be quashed.

11. The present petition is devoid of any merits and is accordingly, dismissed. Order Date :- 6.1.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad