Kalu Ram vs State Of U.P. Thru. Prin. Secy. Deptt. Of ...
2025 Latest Caselaw 4989 ALL

Allahabad High Court

Kalu Ram vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 13 February, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:9937
 
Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 963 of 2025
 

 
Applicant :- Kalu Ram
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And 5 Others
 
Counsel for Applicant :- Aman Shankar,Mayuresh Srivastava
 
Counsel for Opposite Party :- G.A.,Siddhant Mishra
 

 
Hon'ble Saurabh Lavania,J.
 

1. Affidavit(s) of the applicant and the victim/ opposite party No. 7 are taken on record.

2. Heard Sri Aman Shankar, learned counsel for the applicant, learned A.G.A. for the State, Sri Harshit Singh, advocate, who has filed vakalatnama on behalf of opposite party No. 4 and Sri Tarun Mishra, advocate who has filed vakalatnama on behalf of the victim/ opposite party No.7, which are taken on record.

3. The applicant, opposite party No.4 (father of the victim) and the victim (opposite party No.7) are present in person before this Court, who have been duly identified by their respective counsel.

4. The present application u/s 482 has been filed by the applicant for the following main relief:-

"That for the facts and circumstances stated in the accompanying application duly supported by an affidavit, it is expedient in the interest of justice that this Hon'ble Court may graciously be pleased to stay the operation of the impugned Summoning and Cognizance Order dated 03.01.2025, passed by the Learned Special Judge (POCSO ACT) 1st, Raebareli (contained in Annexure No.1), in the case titled State of UP vs. Kaluram, bearing Sessions Trial No.42 of 2025, emanating from Case Crime Number 662 of 2022, under sections 363/366/376 IPC read with sections 5/6 of Protection of Children from Sexual Offences Act, 2012, P.S. Kotwali Nagar, District Raebareli, whereby the applicant have been summoned under Sections 363/366/376 IPC read with sections 5/6 of Protection of Children from Sexual Offences Act, 2012, taken on Charge Sheet dated 13.08.2023, (contained in Annexure No.2), during the pendency of the application, otherwise the applicant would suffer irreparable loss and injury, which cannot be made good in any event."

5. It is stated that applicant and victim/ opposite party No. 7 were known to each other as they belong to Village- Thoor, District- Jalore, Rajasthan and they were in affair and further that the opposite party No. 4/ informant at relevant point of time was not accepting this relationship and therefore opposite party No. 4/ informant made a written complaint at Police Station Kotwali, District Raebareli making allegations therein against the applicant and other co-accused persons to attract offence under sections 363, 366 IPC and based upon the allegations levelled in the written report, the FIR was lodged on 18.09.2022 as FIR/ Case Crime No. 0662 under Section 363, 366 IPC. In this FIR, the allegations were made by the opposite party No. 4/ informant that the applicant had enticed away his minor daughter (victim/ opposite party No. 7). Upon due investigation, the police filed charge sheet under Section 363, 366, 376 IPC and Section 5 and 6 of Protection of Children from Sexual Offences (POCSO Act) against the applicant only and other named accused were exonerated by the Investigating Officer.

6. It is further stated that a perusal of the statement of the victim/ opposite party No. 7 recorded during investigation in terms of Section 161 & Section 164 CrPC (annexed as Annexure No. 10 to the present application) would indicate on account of the conduct of opposite party No. 4, the victim/ opposite party No. 7 left her parental house and reached her native place i.e.Village -Thoor, District- Jalore, Rajasthan. Thereafter, marriage was solemnized between the applicant and victim/ opposite party No. 7. This fact is also evident from the marriage certificate which is annexed as Annexure No. 6 to the present application. From this wedlock, a female child was born, who is about four years old at present.

7. It is further stated that upon coming to know about the FIR lodged against the applicant, the applicant and the victim/ opposite party No. 7 approached this Court by way of filing Criminal Misc. Writ Petition No. 5605 of 2023 for protecting their interest.

8. This Court, after considering the facts of the case, including the statement of the opposite party No. 4/ informant (respondent No. 4 in Criminal Misc. Writ Petition No. 5605 of 2023) wherein the respondent No. 4 i.e. father of the victim (opposite party No. 7 herein) has categorically stated that he would not pursue the FIR in issue, the basis of the pending criminal proceedings, if his daughter/ victim/ opposite party No. 7 returns his (victim's father) house. Thereafter, this Court disposed of the said writ petition vide order dated 01.08.2023 protecting the interest of the applicant and the victim/ opposite party No. 7. The order dated 01.08.2023 reads as under:

"Heard learned counsel for the petitioners at length and learned AGA who appears on behalf of State-respondents

This writ petition has been filed with a prayer to issue a writ, order or direction in the nature of Certiorari for quashing of the impugned FIR dated 18.9.2022 registered as FIR No. 662 of 2022 under Sections 363, 366, 376 IPC and Sections 5/6 of POCSO Act at P.S. Kotwali Nagar, District Raebareli and for a direction to the respondents not to arrest the petitioners pursuant to the impugned FIR.

In pursuance of our earlier order, the petitioner nos. 1 and 2 are present in person along with their counsel. The respondent no. 4 is also present in person along with his counsel- Sri Dharmendra Trivedi, Advocate, who has filed power today

This Court had tried to reason with the respondent no. 4 but he is adamant in pursuing the impugned F.I.R. He says that he has three children, two of whom are girls and their prospects of marriage in future will be jeopardized because of conduct of the petitioners no. 1 and 2

It has also been submitted by the respondent no. 4 that if the petitioner no. 1 returns to her father/respondent no. 4, he shall not pursue the impugned F.I.R

This Court having heard both the parties and having gone through the impugned F.I.R. also finds that the allegations of the petitioner no. 1 being minor has been specifically made in the impugned F.I.R., therefore, this Court directs the petitioner no. 1 to approach the Investigating Officer concerned and get her statement recorded under Section 164 Cr.P.C. before the court concerned. The Investigating Officer shall get a medical examination done of the petitioner no. 1 and if she is found minor, the Investigating Officer shall produce her before the Child Welfare Committee of the District concerned

In case the petitioner no. 1 is found major during the medical examination then the petitioner no. 1 and petitioner no. 2 shall be left alone. The petitioner no. 1 has freedom to go wherever she likes. The petitioner no. 2 to 5 shall not be arrested in case the petitioner no.1 is found major during medical examination

This writ petition is disposed of with a direction to the petitioner nos. 1 and 2 to appear before the Investigating Officer on 4.8.2023 between 9:00 a.m. to 1 p.m.

Till production of petitioner no. 1 before the CWC concerned / Medical Officer for medical examination, the petitioner nos. 2 to 5 shall not be arrested in pursuance of the impugned F.I.R."

9. Further submission is that according to the radiological report, the victim/ opposite party No. 7, at relevant point of time, was aged about 19 years which is evident from the Annexure No. 12, which is a copy of the certificate of Chief Medical Officer, Raebareli.

10. It is also stated that in so far as age of victim/opposite party No. 2 indicated in the school records is concerned, the same was not correctly recorded and there is no evidence to support/ establish the age of the victim/ opposite party No. 7 recorded in the school records and in view of the facts of the instant case, the benefit of the various pronouncements/judgments related to determination of age including in the case(s) Birad Mal Singhvi Vs. Anand Purohit, reported in (1988) Supp SCC 604, State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, Suhani Vs. State of U.P. delivered on 26.04.2018 in Civil Appeal No.4532 of 2018 arising out of SLP(C) No.8001 of 2018 and in the case of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC OnLine SC 1397, shall be extended in favour of the applicant and the victim/ opposite party No. 7 both.

11. It is also stated that presently the applicant and victim/opposite party No. 7 are living as husband and wife along with their minors daughter aged about 4 years, Prachi which can be deduced from the facts pleaded in the present application.

12. It is also stated that in the aforesaid facts and circumstances of the case, indulgence of this Court is required in the matter, as otherwise, entire matrimonial life of applicant and victim/opposite party No. 7 as also future of their minor daughter would be ruined.

13. Averments made in the personal affidavit filed on behalf of the applicant and the victim/opposite party No.7 also supports the aforesaid contention of the learned counsel for the applicant.

14. The victim/opposite party No.7 present before this Court also made her statement in the same tune.

15. Upon consideration of the aforesaid as also the observations in relation to determination of age rendered in the case of Birad Mal Singhvi (Supra), Gurmit Singh (Supra), Suhani (Supra) and Manak Chand alias Mani (Supra) as also the submissions made by learned Counsel for the parties as also the observations made by Apex Court in the case of State of Karnataka Vs. L. Muniswamy and Others, 1977 (2) SCC 699; State of Haryana Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335; Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293; Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC 330; Ahmad Ali Quraishi and Ors. Vs. State of Uttar Pradesh and Ors. (2020) 13 SCC 435, according to which, inherent power under Section 482 Cr.P.C. (akin to Section 528 BNSS, 2023) could be exercised to prevent abuse of process of any Court or otherwise to secure ends of justice, and also the observations made by Apex Court in the case of Ramgopal and others Vs. State of Madhya Pradesh, (2022) 14 SCC 531, Gian Singh Vs. State of Punjab [2012 10 SCC 303], Mohd. Ibrahim Vs. State of U.P., 2022 SCC Online ALL 106, Gold Quest International Ltd. Vs. State of Tamilnadu, 2014 (15) SCC 235, B.S. Joshi Vs. State of Haryana, 2003 (4) SCC 675, Jitendra Raghuvanshi Vs. Babita Raghuvanshi, 2013(4) SCC 58, Madhavarao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre, 1988 1 SCC 692, Nikhil Merchant Vs. C.B.I. and another, 2008(9) SCC 677, Manoj Sharma Vs. State and others, 2008(16) SCC 1, State of M.P. Vs. Laxmi Narayan and others, 2019(5) SCC 688, Narindra Singh and others Vs. State of Punjab and another, (2014) 6 SCC 466, Manoj Kumar and others Vs. State of U.P and others (2008) 8 SCC 781, Union Carbide Corporation and others Vs. Union of India and others (1991) 4 SCC 584, Manohar Lal Sharma Vs. Principal Secretary and others (2014) 2 SCC 532 and Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409, according to which, in given facts, based upon the settlements between the parties the criminal proceedings can be quashed, this Court is of the view that the present application u/s 482 CrPC is liable to be allowed and is accordingly allowed.

16. Consequently, the entire criminal criminal proceedings arising out of Case Crime No. 662 of 2022, under Sections 363, 366, 376 IPC & Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012, Police Station- Kotwali Nagar, District- Raebareli, are liable to be quashed and are hereby quashed.

17. Office/Registry is directed to send the copy of this order to the court concerned through email/fax for necessary compliance.

Order Date :- 13.2.2025

(Manoj K.)