Amit Kumar vs State Of U.P. And Another
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Allahabad High Court

Amit Kumar vs State Of U.P. And Another on 5 April, 2025

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:48822
 
Court No. - 70
 

 
Case :- APPLICATION U/S 528 BNSS No. - 6944 of 2025
 

 
Applicant :- Amit Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pankaj Kumar Mishra
 
Counsel for Opposite Party :- Saurabh Mishra,G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Pankaj Kumar Mishra, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Saurabh Mishra, the learned counsel representing first informant-opposite party-2.

2. Perused the record.

3. Applicant-Amit Kumar, who is a charge sheeted accused and has been summoned by Court below, has approached this Court by means of present application under Section 528 BNSS with the following prayer:-

"It is, therefore, Most Respectfully prayed that this Hon'ble Court may be pleased to allow this application and quash the Charge sheet no.21 of 2024 dated 09.02.2024 as well as cognizance/summoning order dated 03.08.2024 passed by the Chief Judicial Magistrate, Agra in Case No. 11224 of 2024 (State Vs. Amit Kumar) arising out of Case Crime No.592 of 2023 under section 376, 323, 406, 506 IPC, Police Station Hariparvat, District Agra, pending before the Court of Chief Judicial Magistrate, Agra.

It is further prayed that this Hon'ble Court may be pleased to stay the Charge sheet no.21 of 2024 dated 09.02.2024 as well as cognizance/summoning order dated 03.08.2024 passed by the Chief Judicial Magistrate, Agra in Case No. 11224 of 2024 (State Vs. Amit Kumar) arising out of Case Crime No.592 of 2023 under section 376, 323, 406, 506 IPC, Police Station Hariparvat, District Agra, pending before the Court of Chief Judicial Magistrate, Agra and/or to pass such other and further order protecting the interest of the applicants, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, so that justice may be done."

4. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and has also been summoned by Court below to face trial, however, in view of the facts that have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, the present application is liable to be allowed.

5. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 20.12.2023 was lodged by the prosecutrix-first informant-opposite party-2 and was registered as Case Crime No. 0592 of 2023, under Sections 376, 323, 406, 506, 307 IPC, Police Station-Hari Parvat, District-Agra. In the aforesaid FIR, applicant-Amit Kumar has been nominated as solitary named accused.

6. After aforementioned FIR was lodged, applicant solemnized marriage with the prosecutrix on 13.03.2024. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that the parties have applied for registration of their marriage as provided under the U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate has been brought on record and is at page 8 of the supplementary affidavit. From the aforesaid wedlock/cohabitation of applicant and the prosecutrix as husband and wife, a daughter namely Bhavya was born. The birth certificate of the child borne out of the wedlock/cohabitation of applicant and the prosecutgrix, has also been brought on record and is at page 6 of the supplementary affidavit. As per the birth certificate of the child, applicant is shown as the father, whereas the prosecutrix is shown as the mother. On the above premise, the learned counsel for applicants submits that in view of the subsequent developments that have taken place between the parties and as noted herein above, the criminality, if any, committed by applicant now stands washed of. As such, no useful purpose shall now be served in prolonging the criminal prosecution of applicant. In case, the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken.

7. To buttress his submission, the learned counsel for applicant has thus referred to the judgment of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056 and Mafat Lal and Others Vs. State of Rajasthan, (2022) 6 SCC 589, wherein the Apex Court quashed the proceedings against accused therein on the ground that he has solemnized marriage with the prosecutrix. It is thus urged by the learned counsel for applicant that since the present applicant has also solemnized marriage with the prosecutrix, therefore, no exception regarding aforementioned judgment can be carved out in favour of applicant. As such, the present application is also liable to be allowed.

8. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. contends that applicant is guilty of committing an offence, which falls in the category of henious offence, therefore, crime against society. Furthermore, in view of the law laid down by the Apex Court in the case of Rampal Vs. State of Haryana, AIR online 2019 SC 1716, there can be no compromise in matters relating to rape and sexual assault. As such, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

9. On the other hand, Mr. Saurabh Mishra, the learned counsel representing prosecutrix-first informant-opposite party-2 does not oppose the present application. He submits that he has received instructions not to oppose the present application. According to the learned counsel representing prosecutrix-first informant-opposite party-2, it is now an admitted fact that the parties have solemnized marriage and they are living together as husband and wife. From the aforesaid wedlock, a daughter namely Bhavya has also been born. On the above edifice, the learned counsel representing prosecutrix-first informant-opposite party-2 submits that he cannot have any objection, in case, the present application is decided by this Court taking into consideration the aforesaid facts and circumstances.

10. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix and from the said wedlock, a daughter has also been born.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing prosecutrix-first informant-opposite party-2 and upon perusal of record, this Court finds that criminal prosecution of applicant commenced when an FIR dated 20.12.2023 was lodged by the prosecutrix-first informant-opposite party-2. However, subsequent to the aforesaid FIR, applicant solemnized marriage with the prosecutrix on 13.03.2025. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that the marriage of the parties has been registered under the U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate dated 25.03.2025 has also been brought on record and is at page 8 of the supplementary affidavit. Once the marriage of the parties has been registered under the relevant Rules, then there is a statutory presumption with regard to valid and legal marriage of the parties. From the aforesaid wedlock/cohabitation of applicant and the prosecutrix as husband and wife, a daughter namely Bhavya was born. The birth certificate of the child has also been brought on record and is at page 6 of the supplementary affidavit. As per the birth certificate of the child born out of the wedlock of applicant and the prosecutrix, applicant is shown as the father, whereas the prosecutrix is shown as the mother. On the above premise, the learned counsel for applicant submits that in view of the subsequent developments that have taken place between the parties and as noted herein above, the criminality, if any, committed by applicant now stands washed of. As such, no useful purpose shall now be served in prolonging the criminal prosecution of applicant. In case, the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. The chances of conviction of accused-applicant is now not only remote but also bleak. As such, continuation of proceedings would itself cause injustice to the parties. The trial would only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the Courts with an unimaginable flood of dockets.

12. At this juncture, reference be made to the judgments of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056, wherein the Apex Court quashed the proceedings against accused-applicant therein on the ground that the accused had solemnized marriage with the prosecutrix. The judgment rendered by the Apex Court in K. Dhandapani (Supra) is a short one, therefore, the same is reproduced in it's entirety:-

"1. Leave granted.

2. The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily wages in a private factory. FIR was registered against him for committing rape under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal.

3. Mr. M.P. Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children.

4. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

5. After hearing the matter for some time on 08th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life.

6. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him.

7. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle.

8. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of.

9. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification of this Order."

13. Similar view has been taken by the Apex Court in Mafat Lal (Supra).

14. In view of the fact that applicant has solemnized marriage with the prosecutrix, therefore, the ratio laid down by the Apex Court in aforementioned judgments is squarely applicable to the present case. As such, no exception can be carved out in the case of present applicant, insofar as, aforementioned judgments are concerned. Moreover, this Court cannot ignore the subsequent developments that have taken place between the parties as already noted herein above.

15. In view of the discussion made above, the present application succeeds and is liable to be allowed.

16. It is, accordingly, allowed.

17. The entire proceedings in Case No. 11224 of 2024 (State Vs. Amit Kumar) arising out of Case Crime No. 0592 of 2023, under Sections 376, 323, 406, 506 IPC, Police Station-Hari Parvat, District-Agra, now pending in the Court of Chief Judicial Magistrate, Agra are, hereby, quashed.

18. In the facts and circumstances of the case, the cost is made easy.

Order Date :- 5.4.2025

Vinay