Allahabad High Court
Smt. Soni And Another vs State Of U.P. And 3 Others on 1 October, 2024
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:160531
Court No. - 84
Case :- CRIMINAL REVISION No. - 5368 of 2023
Revisionist :- Smt. Soni And Another
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Ajay Singh Sengar,Vijay Singh Sengar
Counsel for Opposite Party :- G.A.,Raju Kanaujia
Hon'ble Sanjay Kumar Singh,J.
1. Heard Mr. Vijay Singh Sengar, learned counsel for the revisionists and Mr. Deepak Mishra, learned Additional Government Advocate assisted by Ms. Priyanka Singh, learned Brief Holder for the State. None appeared on behalf of the informant.
2. The instant criminal revision under Section 397/401 Cr.P.C. has been preferred on behalf of the revisionists, namely, Soni and Shiv Singh against the order dated 04.09.2023 passed by the learned Special Judge (POCSO Act), Auraiya in Miscellaneous Application No. 337 of 2023 arising out of Case Crime No. 293 of 2022, under Sections 363, 366, 376, 504, 506 I.P.C. and Section 3/4 POCSO Act, Police Station Auraiya, District Auraiya, whereby on refusal of victim to go with her father, the concerned Station House Officer was directed to produce the victim before the Child Welfare Committee, Auraiya for legal protection keeping in mind the victim's three months old daughter and inform the Court about the action taken.
3. Assailing the impugned order dated 04.09.2023, main substratum of argument of learned counsel for the revisionists is that revisionist No.2-Shiv Singh is husband of revisionist No. 1-Soni (victim). Since the victim is major aged more than 18 years and has refused to go with her father, therefore, her custody should be given to accused-revisionist No. 2-Shiv Singh.
4. On the other hand, learned Additional Government Advocate for the State vehemently opposed the prayer of the revisionists by contending that revisionist No. 2 is accused in the present case and is facing trial for the offence of kidnapping the victim and committing rape on her, etc. During investigation, as per educational record of the victim, her date of birth was found 25.08.2007 and as such, on the date of incident dated 15.04.2022, victim was a minor child. Accordingly, charge-sheet under Sections 363, 366, 376, 504, 506 I.P.C. and Section 3/4 POCSO Act has been submitted against revisionist No. 2. Much emphasis has been given by contending that it was the revisionist No. 2, who enticed away the victim and committed rape on her, which resulted in her pregnancy. The alleged marriage of revisionist No. 2 with the victim is no marriage in the eyes of law and the same has no legal sanctity. It is also pointed out that no authorisation of victim / revisionist No.1 with regard to filing of this criminal revision on her behalf has been filed along with this criminal revision. Lastly, supporting the order dated 04.09.2023, it is submitted that the Child Welfare Committee is a competent authority to take care of the victim and her child in all respect as per the POCSO Rules, 2020 framed under the POCSO Act 2012, therefore, there is no legal error in passing the order dated 04.09.2023 by learned Special Judge (POCSO Act), Auraiya.
5. Having heard the submissions of learned counsel for the parties and perusing the record, I find that the complainant, who is father of the victim got the F.I.R. lodged on 19.04.2022 regarding third incident dated 15.04.2022 against Shiv Singh (revisionist No. 2), Gaya Prasad, mother of Shiv Singh and Prem Chandra, alleging inter alia that earlier on 03.09.2019, his minor daughter was molested by Shiv Singh. Regarding the said first incident dated 03.09.2019, F.I.R. was lodged against Shiv Singh and Manjeet which was registered at Case Crime No. 623 of 2019, under Sections 354, 120B I.P.C. and Section 7/8 POCSO Act. Thereafter, with regard to second incident dated 16.11.2019, F.I.R. was lodged against revisionist No. 2-Shiv Singh at Case Crime No. 713 of 2019, under Section 363/366 I.P.C., in which victim was recovered from the possession of revisionist No. 2 on 16.11.2019 and he was sent to jail. In Case Crime No. 713 of 2019, statement under Section 164 Cr.P.C. of the victim was recorded, in which she has made allegation of rape against Shiv Singh (revisionist No. 2), accordingly, Section 376 I.P.C. was further added during investigation in the said case. Thereafter, he was released on bail after spending two years in jail. The statement of the victim has been recorded in the court concerned in both the above cases arising out of Case Crime No. 623 of 2019 and 713 of 2019. On 15.04.2022 complainant had gone to the Court, because in a case arising out of Case Crime No. 713 of 2019, his statement was to be recorded in the court but the same could not be recorded and next date was fixed for 05.05.2022. When he came back to his home, he came to know that his daughter is missing and she has been enticed away by Shiv Singh, in which family members of Shiv Singh are also involved. When victim was produced before the concerned court below, she refused to go with her father. Considering the said facts and circumstances of the case, the learned trial court vide order dated 04.09.2023 directed the Station House Officer to produce the victim before the Child Welfare Committee, Auraiya for legal protection keeping in mind the victim's three months old daughter, which cannot be said to be illegal. On 06.09.2023, victim was produced before Child Welfare Committee, Auraiya and thereafter vide order dated 06.09.2023, victim was sent to Rajkiya Bal Grah, Swaroop Nagar, Kanpur Nagar. So far as claim of the revisionist No. 2 that on 15.04.2022, he had solemnized marriage with the victim in Kali Temple, Kanpur Nagar and therefore, he is husband of the victim / revisionist No. 1 is concerned, I find that during investigation, it was found that on the date of incident dated 15.04.2022, victim was minor aged about 14 years, 7 months and 24 days, hence averment of alleged marriage has no legal sanctity. Considering the prosecution case and defence of the accused / revisionist No. 2 at this stage, issue about the age and marriage of victim with revisionist No.2 are a disputed question of facts, which can be adjudicated by the trial court at the appropriate stage of trial. Though revisionist No. 2 in the affidavit has disclosed that the revisionists have applied online for registration of their marriage on 17.07.2023 but did not mention any fact about registration of the same as to whether said marriage has been registered or not. No document of registration of alleged marriage has been filed. The victim in her statement under Section 164 Cr.P.C. neither made allegation of rape against revisionist No. 2 nor stated any thing about her marriage with revisionist No. 2. It is also not in dispute that till date, the charge for the offence under POCSO Act against revisionist No. 2 has not been dropped or set aside by the competent court and the same is intact. Hence, at this stage in view of Section 2(d)(i) of POCSO Act, the victim shall be treated as minor child considering her date of birth being 25.08.2007 as per certificate dated 05.09.2019 issued by the Principal, Maharani Ahilyabai Holkar Inter College, Fafoond Road, Auraiya (Annexure No. 7 to the affidavit), unless contrary is proved by the accused at the appropriate stage of trial. This Court is of the view that in the matter of custody of minor victim of rape, the mental health and welfare of the victim as well as other attending circumstances are a paramount consideration for the said purpose. This Court is also of the opinion that under Section 375 Sixthly I.P.C., the consent of minor is immaterial. In several matters, it is found that that a minor girl can be easily lured into giving consent for sexual intercourse since she does not have the capacity to understand the implication thereof. Since revisionist No. 2 is accused and is facing three trials relating to sexual harassment of same victim arising out of Case Crime Nos. 623 of 2019, 713 of 2019 and present Case Crime No. 293 of 2022 and she in her statement under Section 164 Cr.P.C. recorded in Case Crime No. 713 of 2019 has made allegation of rape against Shiv Singh (revisionist No. 2), therefore, in order to ensure fair trial, it would not be proper and safe to handover the custody of the victim and her child to revisionist No. 2 during the pendency of the trial of the accused-revisionist No. 2. It is also relevant to note that the revisionist No. 2 in paragraph No. 19 has stated false fact that he has no criminal history and even till today, not a single F.I.R. has been lodged against him whereas, he is accused in three cases as disclosed in the F.I.R. of this case itself. The consequential order dated 06.09.2023 passed by the concerned Child Welfare Committee on production of victim and her child before it, has also not been challenged in the present case, whereas this criminal revision has been filed on 07.10.2023 after passing order dated 06.09.2023 by the Child Welfare Committee. So far as judgment of Division Bench of this Court in the case of Raj Kumari versus Superintendent, Women Protection House, 1997 LawSuit (All) 63, relied upon on behalf of the revisionists is concerned, the same is distinguishable on the facts of this case. In the said case alleged husband of the victim was not accused for the offence even under Sections 363, 366 I.P.C. wheres, in the present case revisionist No. 2 is charge-sheeted accused for the offence under Sections 363, 366, 376, 504, 506 I.P.C. and Section 3/4 POCSO Act. In the case of Raj Kumari (supra), the order was passed in Habeas Corpus Petition. It is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect. Here it would also be apposite to mention that in exercise of powers conferred by Section 45 of the POCSO Act, 2012, the Central Government has framed POCSO Rules, 2020, wherein certain duties and responsibilities have been provided upon the shoulders of Child Welfare Committee for the welfare of child and in the light of the same, I do not find any illegality in the order dated 04.09.2023.
6. In view of the above, the instant criminal revision lacks merit and is, accordingly, dismissed.
7. However, it is made clear that if, the victim has any grievance, she can move an appropriate application independently before the concerned Child Welfare Committee through the Superintendent, Rajkiya Bal Grah, Swaroop Nagar, Kanpur Nagar, which shall be considered by the Child Welfare Committee concerned in accordance with law.
8. The Chairman, Child Welfare Committee, Auraiya and the Superintendent, Rajkiya Bal Grah, Swaroop Nagar, Kanpur Nagar are directed to take care of the victim and her child in all respects as per law. They shall also ensure that the proper food, nutrition and milk etc. are provided to the victim as well as her child and monthly report regarding health, etc. of the victim and her child shall be submitted before the concerned Special Judge and father of the victim shall also be informed accordingly.
9. The Special Judge (POCSO Act), Auraiya shall make an endeavour to conclude the trial of the case expeditiously fixing short dates in the light of provisions of Section 35(2) of the POCSO Act without granting any adjournment to either of the parties.
10. The Superintendent of Police, Auraiya shall ensure the production of all the remaining prosecution witnesses on the dates fixed before the trial court.
11. Copy of this order be sent to the Chairman, Child Welfare Committee, Auraiya, the Superintendent, Rajkiya Bal Grah, Swaroop Nagar, Kanpur Nagar, the Special Judge (POCSO Act), Auraiya and the Superintendent of Police, Auraiya for information and compliance.
12. The informant (father of victim) and victim may also be informed about this order immediately.
Order Date :- 1.10.2024
Kashifa
