Mohd. Raja And Another vs State Of U.P. And Another
2021 Latest Caselaw 7844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- APPLICATION U/S 482 No. - 10309 of 2021
 

 
Applicant :- Mohd. Raja And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sharad Chandra Singh,Satish Chandra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Agarwal,J.

1. Sri Sharad Chandra Singh, learned counsel for the applicants and learned AGA for the State.

2. Learned counsel for the applicants submits that this application has been filed on behalf of the applicants- Mohd. Raja and Smt. Saliha Khatoon seeking quashing of the impugned chargesheet (annexure no.9) filed in Case Crime No.0087 of 2019, under Sections 363, 366 and 376 IPC and Section 3/4 of POCSO Act, Police Station Mishrauliya, District Siddharth Nagar pending in the court of Special Judge, POCSO Act, Siddhartha Nagar.

3. Learned counsel for the applicants submits that as per Muslim law, applicant no.2 had attained the age of puberty when nikah was solemnized between applicant nos.1 and 2 and, therefore, in the light of the law laid down by Hon'ble Supreme Court in case of Juhi Devi vs. State of Bihar, (2005) 13 SCC 376 so also in the light of the judgment of Supreme Court in case of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir, AIR 1982 SC 1297, and in case of Furkan vs. State of U.P. and Another in Criminal Revision No.55 of 2015 decided on 08.09.2015 and so also in case of Hadia Ni Akila, citation of which has not been mentioned by learned counsel for the applicants in para 19 of the application in violation of the basic principles of pleading, prays for the aforesaid reliefs though he admits that on the date of the incident, age of the victim, who has been arrayed as applicant no.2 was only 15 years.

4. Learned counsel for the applicants submits that there is a child from the wedlock and a compassionate and lenient view be taken in the matter.

5. Sri Gambhir Singh, learned AGA submits that all the judgments cited by learned counsel for the applicants are in a different domain and are not applicable to the facts and circumstances of the case.

5. Drawing attention of this Court to the provisions contained in Section 361 IPC, it is submitted that provisions of Muslim law will not override the provisions of IPC and they may be true for the limited purposes of custody as has been laid down in case of Furkan (supra).

6. The judgment of Supreme Court relevant the controversy is in case of Independent Thought vs. Union of India and Another 2017 (10) SCC 800, where it has been held that age of consent for sexual intercourse has been raised to 18 years under Section 375 sixthly to bring it on a par with evolving laws under the provisions of Child Marriage Act and Juvenile Justice (Care and Protection) Act, therefore, girl child below 18 years cannot said to have given implied consent when age of consent is statutorily fixed as 18 years. Supreme Court held that fixing lower age under exception to Section 375 IPC is arbitrarily, discriminatory, irrational, unreasonable, unjust, unfair and violative of girl child's right.

7. Supreme Court also laid down exception to Section 375 IPC, thus to bring offence as already exist in the main part of Section 375 IPC as well as in Sections 3 and 5 of POCSO Act.

8. Placing reliance on the judgment of Supreme Court in case of L.I.C. and Others vs. D.J. Bahadur and Others, 1981 (1) SCC 315, it is held that statutes concerning the rights of children are special laws concerning a special subject of legislation and, therefore, provision of such specific legislations must prevail and take precedence over the provisions of a general law such as IPC.

9. Similarly, it is held that a girl child who is in eminent risk of marriage before attaining the age of 18 years is a child in need of care and protection. It cannot be said with any degree of rationality that such a girl child looses her status as a child in need of care and protection soon after she gets married.

10. In this regard para 97, 98 and 99 of the judgment of Independent Thought (supra) are relevant and, therefore, extracted below:-

"(i) The JJ Act

97. A cursory reading of the JJ Act gives a clear indication that a girl child who is in imminent risk of marriage before attaining the age of 18 years of age is a child in need of care and protection (Section 2 (14) (xii) of the JJ Act). In our opinion, it cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married. The JJ Act provides that efforts must be made to ensure the care, protection, appropriate rehabilitation or restoration of a girl child who is at imminent risk of marriage and therefore a child in need of care and protection. If this provision is ignored or given a go by, it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically, mentally or psychologically ready. The intention of the JJ Act is to benefit a child rather than place her in difficult circumstances. A contrary view would not only destroy the purpose and spirit of the JJ Act but would also take away the importance of Article 15(3) of the Constitution. Surely, such an interpretation and understanding cannot be given to the provisions of the JJ Act.

(ii) The POCSO Act

98. Similarly, the provisions of the POCSO Act make it quite explicit that the dignity and rights of a child below 18 years of age must be recognized and respected. For this purpose, special provisions have been made in the POCSO Act as for example Section 28 thereof which provides for the establishment of a Special Court to try offences under the Act. Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit an offence Under Section 3 (penetrative sexual assault) or Under Section 5 (aggravated penetrative sexual assault) then the Special Court shall presume that such a person has committed or abetted or attempted to commit the offence unless the contrary is proved. Similarly, the procedure and powers of a Special Court have been delineated in Section 33 of the POCSO Act and this Section provides for not only a child friendly atmosphere in the Special Court but also child friendly procedures, some of which are given in subsequent Sections of the statute. Once again the legislative slant is in favour of a child thereby giving substantive meaning to Article 15(3) of the Constitution.

99. However, of much greater importance and significance is Section 42-A of the POCSO Act. This Section provides that the provisions of the POCSO Act are in addition to and not in derogation of the provisions of any other law in force which includes the Indian Penal Code. Moreover, the Section provides that in the event of any inconsistency between the provisions of the POCSO Act and any other law, the provisions of the POCSO Act shall have overriding effect. It follows from this that even though the Indian Penal Code decriminalizes the marital rape of a girl child, the husband of the girl child would nevertheless be liable for punishment under the provisions of the POCSO Act for aggravated penetrative sexual assault."

11. As far as law laid down in case of Juhi Devi (supra) is concerned, fact of that case were that Supreme Court believed medical boards medical report over the certificates produced by the father of the applicant and permitted her to be released from remand home and go with her husband.

12. In that judgment, neither the provisions of Juvenile Justice Act have been discussed and at the time of delivery of that judgment, POCSO Act was not enacted, therefore, this judgment in case of Juhi Devi (supra) will have no relevance to the facts of the present case.

13. In case of Jaya Mala (supra), deals with the issue of determination of age through radio-logical and orthopedic test. It has been held that Court can take judicial notice that margin of error in age ascertained by such determination as two years on either side but in the present case, when this judgment is examined in terms of the provisions contained in Section 94 of the Juvenile Justice Act, which prescribes a specific scheme for determination of age of a juvenile, and specially when it is admitted fact by learned counsel for the applicant themselves that the girl was only aged 15 years at the time of marriage, no cognizance can be taken in the light of law laid down in case of Jaya Mala (supa) and Independent Thought (supra).

14. As far as law laid down in case of Furkan is concerned, it is again based on the judgment of Supreme Court in case of Juhi Devi (supra) dealing with issue of keeping the victim in remand home when her age was determined to be between 16-17 years.

15. This judgment of Furkan also takes into consideration another judgment of Division Bench of this High Court in case of Smt. Reena vs. State of U.P. And Others decided on 24.05.2012 (Habeas Corpus Writ Petition No.10180 of 2012), wherein it has been held that personal liberty of a person should be of paramount consideration and in such cases, with a view to protect personal liberty of a person, court should lean towards considering the medical age then to consider the age, which is recorded in school documents.

16. All these judgments are prior to the judgment of Supreme Court in Independent Thought and have not considered the relevant provisions of the Juvenile Justice Act and the Rules made thereunder, therefore, they are of no avail to the applicants specially once the law has been laid down in case of Independent Thought (supra) that special law will prevail over the general law.

17. Therefore this petition deserves to fail and is dismissed.

Order Date :- 13.7.2021

Ravi/-