High Court · 2025

arising out of Case Crime No. 96 of 2021 (State Vs Rajan Chauhan) U/S 363, 366, 376 I.P.C. & 5(J) 2/6 POCSO Act Police Station- Tarkulwa District- Deoria, Pending before Additional District & Session/Special Judge (POCSO) Court No. 01 Deoria. It is further prayed that this Hon'ble Court may kindly be pleased to Stay Impugned Charge sheet dated 08.09.2022 as well as cognizance order dated

26.09.2022 passed by Special Judge (POCSO Act) Court No. 01 Deoria as well as entire proceedings of the session trial No. 436 of 2022, arising out of Case Crime No. 96 of 2021 (State Vs Rajan Chauhan) U/S 363, 366, 376,

1.P.C. & 5(J) 2/6 POCSO Act Police Station- Tarkulwa District- Deoria, Pending before Additional District & Session/Special Judge (POCSO) Court No. 01 Deoria. And or to pass such other or further order which this Hon'ble Court may deem, fit and proper under the facts and circumstances of the case, otherwise the applicants shall suffer irreparable loss and injury which cannot be compensate in any way."

4. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused and also facing trial before court below, however, in view of the peculiar facts and circumstances of the case, the criminal prosecution of applicants cannot be sustained. In furtherance of aforesaid submission, the learned counsel for applicants submits that subsequent to the F.I.R. dated 14.06.2021 lodged by first informant/opposite party-2, Kamruddin (Father of the prosecutrix) and giving rise to present criminal proceedings, the prosecutrix solemnized marriage with applicant on 16.06.2021. Consequently, the prosecutrix became legally wedded wife of applicant. On account of above, the prosecutrix started residing with applicant as his legally wedded wife. On account of cohabitation of the prosecutrix and applicant, a daughter namely Mitthu was born on 02.07.2022. On the above premise, the learned counsel for applicant submits that in view of subsequent development that have taken place, the criminality, if any, committed by applicant now stands washed of. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. He, therefore, submits that present application is liable to be allowed by this Court.

5. Per Contra, the learned A.G.A. representing State-opposite party-2 has vehemently opposed the present application. Learned A.G.A. submits that on the date of occurrence, the prosecutrix was a child within the definition of the term child as defined in the POCSO Act. Therefore, the subsequent development, if any, will not wipe out the criminality committed by the applicant. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record.

6. Mr. Ashok Kumar Yadava, the learned counsel representing first informant/opposite party-2 has adopted the submission urged by the learned A.G.A.

7. Mr. Jai Prakash Singh, the learned counsel representing victim- opposite party-3, however, submits that he has received instructions not to oppose this application. He further submits that it is an admitted case of the prosecutrix that she has solemnized marriage with applicant. On account of cohabitation of the prosecutrix and applicant, a daughter namely Mitthu was born on

02.07.2022. He, therefore, contends that he cannot not have any objection in case the present application is decided by this Court taking into consideration the aforementioned facts.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Ashok Kumar Yadava, the learned counsel representing first informant/opposite party-2, Mr. Jai Prakash Singh, the learned counsel representing victim- opposite party-3 and upon perusal of record this court finds that it is admitted to the parties that after the F.I.R. dated 14.06.2021 was lodged by first informant/opposite party-2, Kamrudding (Father of the prosecutrix), the prosecutrix solemnized marriage with applicant on 16.06.2021. Consequently, prosecutrix became the legally wedded wife of applicant. In view of above, the prosecutrix started residing with applicant as his legally wedded wife. On account of cohabitation of applicant and the prosecutrix as husband and wife, a daughter namely Mitthu was born on

02.07.2022. In view of above, the criminality, if any, committed by applicant shall stand wash off. As such, in case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken.

9. At this juncture, reference be made to the judgement of Supreme Court in K. Dhandapani Vs. The State By the Inspector of Police, 2022 SCC OnLine SC 1056. Since the judgement is a short one therefore the same is reproduced in its entirety: "Leave granted. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily wages in a private factory. FIR was registered against him for committing rape under Sections 5(j) (ii)read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous Reason: imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal. Mr. M.P.Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix. After hearing the matter for some time on 08 th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order."

10. Though applicant is a Hindu and the prosecutrix is a Muslim but simply on account of above, it cannot be said that the marriage of the parties is void.

11. In view of the discussion made above, the present application succeeds and is liable to be allowed.

12. It is accordingly allowed.

13. The entire proceedings of Ssession Trial No. 436 of 2022 (State Vs Rajan Chauhan) arising out of Case Crime No. 96 of 2021 under Sections 363, 366, 376 I.P.C. and Sections 5(J) 2/6 POCSO Act. Police Station- Tarkulwa District- Deoria, now pending in the court of Additional District & Sessions Judge/Special Judge (POCSO Act) Court No. 01, Deoria, are hereby quashed.

14. However, in the facts and circumstances of the case, parties shall bear their own costs Order Date :- 5.2.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad

arising out of Case Crime No. 96 of 2021 (State Vs Rajan Chauhan) U/S 363, 366, 376 I.P.C. & 5(J) 2/6 POCSO Act Police Station- Tarkulwa District- Deoria, Pending before Additional District & Session/Special Judge (POCSO) Court No. 01 Deoria. It is further prayed that this Hon'ble Court may kindly be pleased to Stay Impugned Charge sheet dated 08.09.2022 as well as cognizance order dated

26.09.2022 passed by Special Judge (POCSO Act) Court No. 01 Deoria as well as entire proceedings of the session trial No. 436 of 2022, arising out of Case Crime No. 96 of 2021 (State Vs Rajan Chauhan) U/S 363, 366, 376,

1.P.C. & 5(J) 2/6 POCSO Act Police Station- Tarkulwa District- Deoria, Pending before Additional District & Session/Special Judge (POCSO) Court No. 01 Deoria. And or to pass such other or further order which this Hon'ble Court may deem, fit and proper under the facts and circumstances of the case, otherwise the applicants shall suffer irreparable loss and injury which cannot be compensate in any way."

4. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused and also facing trial before court below, however, in view of the peculiar facts and circumstances of the case, the criminal prosecution of applicants cannot be sustained. In furtherance of aforesaid submission, the learned counsel for applicants submits that subsequent to the F.I.R. dated 14.06.2021 lodged by first informant/opposite party-2, Kamruddin (Father of the prosecutrix) and giving rise to present criminal proceedings, the prosecutrix solemnized marriage with applicant on 16.06.2021. Consequently, the prosecutrix became legally wedded wife of applicant. On account of above, the prosecutrix started residing with applicant as his legally wedded wife. On account of cohabitation of the prosecutrix and applicant, a daughter namely Mitthu was born on 02.07.2022. On the above premise, the learned counsel for applicant submits that in view of subsequent development that have taken place, the criminality, if any, committed by applicant now stands washed of. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. He, therefore, submits that present application is liable to be allowed by this Court.

5. Per Contra, the learned A.G.A. representing State-opposite party-2 has vehemently opposed the present application. Learned A.G.A. submits that on the date of occurrence, the prosecutrix was a child within the definition of the term child as defined in the POCSO Act. Therefore, the subsequent development, if any, will not wipe out the criminality committed by the applicant. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record.

6. Mr. Ashok Kumar Yadava, the learned counsel representing first informant/opposite party-2 has adopted the submission urged by the learned A.G.A.

7. Mr. Jai Prakash Singh, the learned counsel representing victim- opposite party-3, however, submits that he has received instructions not to oppose this application. He further submits that it is an admitted case of the prosecutrix that she has solemnized marriage with applicant. On account of cohabitation of the prosecutrix and applicant, a daughter namely Mitthu was born on

02.07.2022. He, therefore, contends that he cannot not have any objection in case the present application is decided by this Court taking into consideration the aforementioned facts.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Ashok Kumar Yadava, the learned counsel representing first informant/opposite party-2, Mr. Jai Prakash Singh, the learned counsel representing victim- opposite party-3 and upon perusal of record this court finds that it is admitted to the parties that after the F.I.R. dated 14.06.2021 was lodged by first informant/opposite party-2, Kamrudding (Father of the prosecutrix), the prosecutrix solemnized marriage with applicant on 16.06.2021. Consequently, prosecutrix became the legally wedded wife of applicant. In view of above, the prosecutrix started residing with applicant as his legally wedded wife. On account of cohabitation of applicant and the prosecutrix as husband and wife, a daughter namely Mitthu was born on

02.07.2022. In view of above, the criminality, if any, committed by applicant shall stand wash off. As such, in case the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken.

9. At this juncture, reference be made to the judgement of Supreme Court in K. Dhandapani Vs. The State By the Inspector of Police, 2022 SCC OnLine SC 1056. Since the judgement is a short one therefore the same is reproduced in its entirety: "Leave granted. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily wages in a private factory. FIR was registered against him for committing rape under Sections 5(j) (ii)read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous Reason: imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal. Mr. M.P.Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix. After hearing the matter for some time on 08 th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order."

10. Though applicant is a Hindu and the prosecutrix is a Muslim but simply on account of above, it cannot be said that the marriage of the parties is void.

11. In view of the discussion made above, the present application succeeds and is liable to be allowed.

12. It is accordingly allowed.

13. The entire proceedings of Ssession Trial No. 436 of 2022 (State Vs Rajan Chauhan) arising out of Case Crime No. 96 of 2021 under Sections 363, 366, 376 I.P.C. and Sections 5(J) 2/6 POCSO Act. Police Station- Tarkulwa District- Deoria, now pending in the court of Additional District & Sessions Judge/Special Judge (POCSO Act) Court No. 01, Deoria, are hereby quashed.

14. However, in the facts and circumstances of the case, parties shall bear their own costs Order Date :- 5.2.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad