Saddam vs State Of U.P. And Another
2022 Latest Caselaw 8647 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 83
 

 
Case :- APPLICATION U/S 482 No. - 9506 of 2022
 

 
Applicant :- Saddam
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Janardan Yadav
 
Counsel for Opposite Party :- G.A.,Bindu Kumari
 

 
Hon'ble Gautam Chowdhary,J.

Heard Sri Janardan Yadav, learned counsel for the applicant, Ms. Bindu Kumari, learned counsel for the opposite party no.2, learned A.G.A. and perused the record.

The present application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Special Case No. 23 of 2017 (State Vs. Saddam) arising out of Case Crime No. 25 of 2016 under Sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act, Police Station Phoolpur, District Azamgarh pending before learned Special Judge Rape and POCSO, Court No.2, District Azamgarh as well as to quash the charge sheet dated 28.01.2017 and also to quash the cognizance order dated 03.05.2017 passed in the aforesaid case.

Learned counsel for the applicant submits that the daughter of the opposite party no.2 has solemnised marriage out of her own free and consent and is residing with the applicant without any threat or coercion. He further submits that perusal of the statement of the victim recorded under Section 164 Cr.P.C. goes to show that the victim has not levelled any allegation against the applicant and that she has solemnised marriage with the applicant. He next submits that since the victim has solemnised marriage with the applicant out of her own volition and that the victim is deponent of the present case, therefore, the proceedings against the applicant is bad in law and is liable to be quashed.

Ms. Bindu Kumari, learned counsel for the opposite party no.2 submits that the first informant is present before this Court and that the first informant does not want to pursue the case. She has further stated that the opposite party no.2 has no objection, in case, the proceedings of the instant case is quashed.

Learned counsel for the applicant has placed reliance on a judgement of Meghalaya High Court in the case of Shri. Olius Mawiong & Anr. Vs. State of Meghalaya & Anr. in support of his contention.

Pertinent to the present case, relevant portion of the aforesaid judgement is reproduced hereinbelow:-

16. The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled.

17. This is precisely the case here where a minor girl who is living with a man as husband and wife with the blessings of the family members, has to witness her husband being prosecuted under the POCSO Act only because of her age being under 18 years. In fact, in the present case, the age of the minor girl is said to be about 17 years and 7 months which is only about 5 months less than 18 years at the time of reportage of the alleged offence.

18. Be that as it may, this Court is in agreement with the opinion expressed by some of the Hon'ble High Courts on this issue.

19. The learned counsel for the petitioners referring to the case of Teiborlang Kurkalang (supra), wherein in a similarly situated case, this Court has allowed the prayer made therein and has set aside the FIR and quashed the related proceedings before the Trial Court.

20. The ratio in the case of Teiborlang Kurkalang was arrived at by following the precedent laid down in cases of similar nature, particularly the case of Ranjit Rajbanshi (supra) also relied upon by the petitioners wherein at para 47, 48 and 49 of the same, the Hon'ble Calcutta High Court has opined as follows:

"47. In the present case, the victim girl was admittedly 16 years old and studied in Class XII at the relevant point of time. She was not nave enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.

48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as a unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.

49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."

21. Similarly, in the case of Vijayalakshmi (supra), the Hon'ble Madras High Court at para 11 and 18 has expressed as under:

11. ?There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.

18. ... Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act."

22. In the light of the above, this Court is convinced that the case of the petitioners has to be looked at pragmatically, taking the above observations into consideration to give relief to the parties. This will meet the ends of justice as is inherently found in this Court's exercise of the power under Section 482 Cr.P.C.

23. This petition is accordingly allowed. The FIR in Pynursla P.S. Case No 30 (5) of 2021 under Section 5 (j) (ii) (q)/6 of the POCSO Act, 2012 and the proceedings in Special POCSO Case No. 63 of 2021 are hereby set aside and quashed.

24. Petition disposed of. No costs."

Learned A.G.A. could not dispute the aforesaid fact.

Having heard learned counsel for the applicant and having perused the record, it transpires that the victim had eloped out of her own free will, love and affection and she had solemnised marriage without any force or coercion. At present, both the applicant and the victim are living happily as husband and wife. The victim in her statement recorded under Section 164 Cr.P.C. as well as statement given before this Court has also not made any allegation against the applicant and she has unambiguously stated that she has gone out of her own volition to perform marriage with the applicant.

Perusal of the aforesaid judgment clearly bring out the settled position in law.

Considering the facts in entirety, this Court is of the opinion, that no useful purpose may be served in proceeding against the applicant and thus the entire proceedings of the aforesaid case is liable to be quashed.

Accordingly, the proceedings of Special Case No. 23 of 2017 (State Vs. Saddam) arising out of Case Crime No. 25 of 2016 under Sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act, Police Station Phoolpur, District Azamgarh pending before learned Special Judge Rape and POCSO, Court No.2, District Azamgarh as well as charge sheet dated 28.01.2017 and cognizance order dated 03.05.2017 passed in the aforesaid case, are quashed.

Order Date :- 1.8.2022

S.Ali