High Court · 2025

1. Heard Mr. Chandra Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Udaiveer Singh, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- " It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application by quashing the order dated 23.10.2024 passed by Special Judge (POCSO Act), Bulandshahr in Special case no. 1977 of 2016 arising out of case crime no. 128 of 2016 under Section 363, 366, 376 I.P.C. and 4 POCSO Act and 3 (2) (5) of S.C. Act, Police Station-Naraura, District-Bulandshahr. Further may be pleased to stay the further proceeding of in case crime no. 128 of 2016 under Section 363, 366, 376 I.P.C. and 4 POCSO Act and 3 (2) (5) of S.C. Act, Police Station-Naraura, District-Bulandshahr. And/or pass such other and further order which this Hon'ble Court may deed fit and proper under the circumstances of the present case."

4. On the matter being taken up, the learned A.G.A. submits that notice of this application has been served upon first informant opposite party 2 on 14.12.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant/opposite party 2 nor any one has put in appearance on his behalf to oppose this application even in revised call.

5.Record shows that in respect of an incident which is alleged to have occurred on 16.08.2016, a delayed F.IR. dated 18.08.2016 was lodged by the first informant/opposite party-2 and was registered as Case Crime No. 0128 of 2016 under Section 366 I.P.C. and Section 3 (2) (5) of SC/ST Act. During course of investigation, the medical examination of the prosecutrix was conducted followed by her medical determination of age. The Chief Medical Officer, Bulandshahr issued a certificate dated 08.11.2016 (Annexure-4 to the affidavit) wherein it was opined that the prosecutrix is aged about 18 to 19 years. There is no document on record in terms of Section 94 (a) or 94 (b) regarding the date of birth of prosecutrix. As such, of necessity the court has to rely upon the age of the prosecutrix determined medically. The aforementioned certificate was issued on the basis of the X-ray plate as well as the X-ray report. The said documents are on record and marked as paper nos. 11-A, 12A-1 and 12A-2. Since the aforesaid documents were not proved in evidence nor the persons i.e. the Radiologist and Technician, who had prepared the aforesaid documents, had appeared before court below to prove the said documents, an application dated 07.10.2024 was filed by accused/applicant to give one opportunity to the accused to give his evidence in the light of above.

6. Court below vide order dated 30.07.2024 allowed aforementioned application and permitted the accused/applicant to produce the witnesses competent to proof the documents i.e. paper nos. 11-A, 12A-1 and 12A-2.

7. However, since the competent witnesses could not be produced before court below on the date fixed, therefore, court below vide order dated 23.10.2024 closed the opportunity of accused applicant to lead defence evidence.

8. Thus feeling aggrieved by the order dated 23.10.2024, accused/applicant has not approached this Court by means of present application under Section 482 Cr.P.C.

9. Learned counsel for applicant in challenge to the order dated 23.10.2024 submits that a paradoxical position has emerged on record. On the one hand, as per the medical opinion, the prosecutrix was major on the date of occurrence. The certificate issued by the Chief Medical Officer, Bulandshahr regarding the age of the prosecutrix is based upon the X-ray report and X-ray Plate, which are also on record as paper nos. 11-A, 12A-1 and 12A-2.. However, since the basis of the opinion expressed by the Chief Medical Officer i.e. aforementioned documents have not been proved in evidence, no benefit can be granted to the accused on the basis of the certificate issued by the Chief Medical Officer, Bulandshahr. Apart from above, the persons competent to prove aforementioned documents i.e. the Radiologist and Technician, are government servants therefore, they are not within control of the accused/applicant. However, irrespective of above, court below has passed the order impugned dated 23.10.2024.

10. Learned counsel for applicant has then referred to the judgement of Supreme Court in Varsha Garg Vs. The State of Madhya Pradesh, 2022 SCC OnLine SC 986 and on basis thereof he submits that since it is the duty of the court to find out the truth, therefore, the persons who had prepared aforementioned documents could be summoned by court below itself. As such, the order impugned is liable to be set aside by this Court.

11. Per contra, the learned A.G.A. has opposed the present application. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that matter requires consideration.

13. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.

14. Issue notice to opposite party-2 through C.J.M. concerned.

15. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice. Notice shall be made returnable on 06.03.2025.

16. Put up as fresh on 06.03.2025.

17. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application, as noted above, as an interim measure, it is provided that till the next date fixed, the further proceedings of Special Case No. 1977 of 2016 (State Vs. Udayveer) arising out of Case Crime No. 128 of 2016 under Sections 363, 366, 376 IPC, Section 4 POCSO Act and 3 (2) (5) of S.C./S.T. Act, Police Station Naraura, District Bulandshahr now pending in the Court of Special Judge (POCSO Act), Bulandshahr, shall remain stayed. Order Date :- 21.1.2025/HSM HARI SHANKER MISHRA High Court of Judicature at Allahabad

1. Heard Mr. Chandra Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Udaiveer Singh, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- " It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application by quashing the order dated 23.10.2024 passed by Special Judge (POCSO Act), Bulandshahr in Special case no. 1977 of 2016 arising out of case crime no. 128 of 2016 under Section 363, 366, 376 I.P.C. and 4 POCSO Act and 3 (2) (5) of S.C. Act, Police Station-Naraura, District-Bulandshahr. Further may be pleased to stay the further proceeding of in case crime no. 128 of 2016 under Section 363, 366, 376 I.P.C. and 4 POCSO Act and 3 (2) (5) of S.C. Act, Police Station-Naraura, District-Bulandshahr. And/or pass such other and further order which this Hon'ble Court may deed fit and proper under the circumstances of the present case."

4. On the matter being taken up, the learned A.G.A. submits that notice of this application has been served upon first informant opposite party 2 on 14.12.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant/opposite party 2 nor any one has put in appearance on his behalf to oppose this application even in revised call.

5.Record shows that in respect of an incident which is alleged to have occurred on 16.08.2016, a delayed F.IR. dated 18.08.2016 was lodged by the first informant/opposite party-2 and was registered as Case Crime No. 0128 of 2016 under Section 366 I.P.C. and Section 3 (2) (5) of SC/ST Act. During course of investigation, the medical examination of the prosecutrix was conducted followed by her medical determination of age. The Chief Medical Officer, Bulandshahr issued a certificate dated 08.11.2016 (Annexure-4 to the affidavit) wherein it was opined that the prosecutrix is aged about 18 to 19 years. There is no document on record in terms of Section 94 (a) or 94 (b) regarding the date of birth of prosecutrix. As such, of necessity the court has to rely upon the age of the prosecutrix determined medically. The aforementioned certificate was issued on the basis of the X-ray plate as well as the X-ray report. The said documents are on record and marked as paper nos. 11-A, 12A-1 and 12A-2. Since the aforesaid documents were not proved in evidence nor the persons i.e. the Radiologist and Technician, who had prepared the aforesaid documents, had appeared before court below to prove the said documents, an application dated 07.10.2024 was filed by accused/applicant to give one opportunity to the accused to give his evidence in the light of above.

6. Court below vide order dated 30.07.2024 allowed aforementioned application and permitted the accused/applicant to produce the witnesses competent to proof the documents i.e. paper nos. 11-A, 12A-1 and 12A-2.

7. However, since the competent witnesses could not be produced before court below on the date fixed, therefore, court below vide order dated 23.10.2024 closed the opportunity of accused applicant to lead defence evidence.

8. Thus feeling aggrieved by the order dated 23.10.2024, accused/applicant has not approached this Court by means of present application under Section 482 Cr.P.C.

9. Learned counsel for applicant in challenge to the order dated 23.10.2024 submits that a paradoxical position has emerged on record. On the one hand, as per the medical opinion, the prosecutrix was major on the date of occurrence. The certificate issued by the Chief Medical Officer, Bulandshahr regarding the age of the prosecutrix is based upon the X-ray report and X-ray Plate, which are also on record as paper nos. 11-A, 12A-1 and 12A-2.. However, since the basis of the opinion expressed by the Chief Medical Officer i.e. aforementioned documents have not been proved in evidence, no benefit can be granted to the accused on the basis of the certificate issued by the Chief Medical Officer, Bulandshahr. Apart from above, the persons competent to prove aforementioned documents i.e. the Radiologist and Technician, are government servants therefore, they are not within control of the accused/applicant. However, irrespective of above, court below has passed the order impugned dated 23.10.2024.

10. Learned counsel for applicant has then referred to the judgement of Supreme Court in Varsha Garg Vs. The State of Madhya Pradesh, 2022 SCC OnLine SC 986 and on basis thereof he submits that since it is the duty of the court to find out the truth, therefore, the persons who had prepared aforementioned documents could be summoned by court below itself. As such, the order impugned is liable to be set aside by this Court.

11. Per contra, the learned A.G.A. has opposed the present application. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that matter requires consideration.

13. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.

14. Issue notice to opposite party-2 through C.J.M. concerned.

15. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice. Notice shall be made returnable on 06.03.2025.

16. Put up as fresh on 06.03.2025.

17. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application, as noted above, as an interim measure, it is provided that till the next date fixed, the further proceedings of Special Case No. 1977 of 2016 (State Vs. Udayveer) arising out of Case Crime No. 128 of 2016 under Sections 363, 366, 376 IPC, Section 4 POCSO Act and 3 (2) (5) of S.C./S.T. Act, Police Station Naraura, District Bulandshahr now pending in the Court of Special Judge (POCSO Act), Bulandshahr, shall remain stayed. Order Date :- 21.1.2025/HSM HARI SHANKER MISHRA High Court of Judicature at Allahabad