Krishan vs State Of U.P. And Another
2022 Latest Caselaw 11978 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 82
 

 
Case :- APPLICATION U/S 482 No. - 25656 of 2022
 

 
Applicant :- Krishan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vikas Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Heard Mohd.Shakib, learned counsel for applicant and Shri. Chandan Agarwal, learned A.G.A.

By means of this application, applicant has prayed for quashing the entire proceedings of Special Session Trial No.1349 of 2021, (State Vs. Krishan), arising out of charge-sheet dated 16.6.2019, submitted in case crime no.64 of 2019, under sections 363, 366, 376 I.P.C. and Section 4 POCSO Act, 2012, Police Station-Narsaina, District-Bulandshahr, as well as cognizance order dated 24.9.2021 which is pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), District-Bulandshahr.

Learned counsel for applicant submits that according to medical certificate, age of the victim is about 16-17 years. She has not supported the case of the prosecution in her statement recorded under Section 164 Cr.P.C., wherein she has specifically stated that with her own will she has stayed with the applicant, therefore, no offence is made out under Sections 363, 366, 376 I.P.C. and Section 4 POCSO Act, as such the proceedings initiated against the applicant be quashed.

Per contra, learned A.G.A. submits that age of the victim even on the basis of her medical examination is less than 18 years and the consent of a minor if any, is immaterial, therefore, at this stage there is no ground to quash the criminal proceedings.

The scope of powers under inherent jurisdiction has been reiterated by Supreme Court in Ramveer Upadhyay & Anr Vs. State of U.P. & Anr, 2022 SCC OnLine SC 484 as well as in Daxaben Vs. State of Gujarat & Ors, 2022 SCC OnLine SC 936.

In the present case, victim is less than 18 years, therefore, she is a minor girl and as held in Rasool Vs. State, 1976 Crlj 363 All and Sanjay Vs. State of U.P., Criminal Appeal No.2027 of 2015 decided on 2.8.2019 as well as Section 375 I.P.C. makes it clear that the offence under Section 375 (sixthly) as well as definition of a minor under the POCSO Act, where the victim is less than 18 years, sexsual intercourse with or without her consent amounts to rape.

In the present case, after lodging of the F.I.R., investigation was conducted and thereafter charge-sheet was filed and as such there is a prima-facie case against the applicant.

In view of the judgment of Ramveer Upadhyay & Daxaben (supra), it is not a case that no case is made out against the applicant.

This application is rejected.

Order Date :- 31.8.2022

SB