Bismillah And Another vs State Of U.P.
2025 Latest Caselaw 1129 ALL

Allahabad High Court

Bismillah And Another vs State Of U.P. on 2 June, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:94322
 
Court No. - 52
 

 
Case :- APPLICATION U/S 528 BNSS No. - 12306 of 2025
 

 
Applicant :- Bismillah and another
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Atul Kumar, learned counsel for the applicants and Sri Vikas Sharma, learned State Law officer for the State.

2. This application u/s 528 of BNSS has been preferred to quash the entire criminal proceeding of Criminal Misc. Case No. 299 of 2024 (State of U.P. vs. Bismillah and others), under Section 491 BNSS 2023, pending before the Court Special Judge/POCSO Act, Sant Kabir Nagar.

3. Learned counsel for the applicant has submitted that a first information report was lodged against unnamed accused being FIR No. 0054 of 2021 under Section 363 Cr.P.C. by one Chhote Lal pursuant to the orders passed therein Tauseef Ahmad who was one of the accused preferred Application u/s 482 No. 33965 of 2024 in which on 06.01.2025, the following orders were passed.-

"1. Counter affidavit filed by Mr. Atul Kumar, the learned counsel representing first informant/opposite party no.2 in Court today, is taken on record.

2. Heard Mr. Sami Ullah Khan, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Atul Kumar, the learned counsel representing first informant/opposite party no.2.

3. Perused the record.

4. Applicant-Tauseef Ahmad who is a charge sheeted accused has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:

"It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the this application and quash the entire proceeding including the impugned charge sheet dated 04.7.2021 as well as cognizance/summoning order dated 4.8.2021 along with Non Bailable Warrant dated 06.02.2024 passed by Learned Special Judge (POCSO Act), Sant Kabir Nagar in Sessions Case No.589 of 2021 (State Vs. Tauseef Ahmad), arising out of Case Crime No.54 of 2021, U/S 363, 366, 376 I.P.C. and Section 5/6 POCSO Act, Police Station Mahuli, District Sant Kabir Nagar, in the court of Learned Special Judge (POCSO Act), Sant Kabir Nagar.

It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceedings of Session Case No.589 of 2021 (State Vs. Tauseef Ahmad), arising out of Case Crime No.54 of 2021, U/s 366, 376, 366 I.P.C. and Section 5/6 POCSO Act, Police Station Mahuli, District Sant Kabir Nagar, in the court of Learned Special Judge (POCSO Act), Sant Kabir Nagar, during the pendency of the present application before this Hon'ble Court, otherwise the applicant shall suffer an irreparable loss and injury, And/or to pass such other further order or direction which this Hon'ble court may deem fit and proper in the circumstances of the case."

5. Learned counsel for applicant submits that subsequent to the FIR dated 10.2.2021 giving rise to the present criminal proceeding the prosecutrix solemnized marriage (Nikah) with the applicant on 15.5.2021. As such, the prosecutrix is now the legally wedded wife of applicant. In view of above the prosecutrix is now residing with the applicant as his legally wedded wife. From the aforesaid wedlock a daughter namely Aatifa Tauseef Ahmad Khan was born on 5.9.2022.

6. On the above premise, learned counsel for applicant submits that in view of aforementioned subsequent developments the criminality if any committed by applicant now stands washed off. It is further submitted by the learned counsel for applicant that in view of above, no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue the same shall result in serious prejudice to the applicant and further more a happy family shall stand broken. He therefore, contends that the present application is therefore, liable to be allowed, by this Court.

7. Per contra the learned AGA for State-opposite party-1 has vehemently opposed the present application. He submits that since on the date of occurrence the prosecutrix was a child within the meaning of the term child as defined in the POCSO Act, therefore, the subsequent event, if any, will not wipe out the criminality committed by applicant. As such no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual submissions urged by the learned counsel for applicant with reference to the record.

8. On the other hand, Mr. Atul Kumar, the learned counsel representing first informant/opposite party no.2 submits that he has been instructed not to oppose the present application. He also contends that the prosecutrix has solemnized marriage (Nikah). As such the prosecutrix started residing with the applicant as his legally wedded wife. From the aforesaid wedlock a female child was born. He therefore contends that he cannot have any objection in case the present application is allowed by this Court by taking into consideration the aforementioned facts.

9. Having heard the learned counsel for applicant, the learned A.G.A. and upon perusal of record, this Court finds it is an undisputed fact that subsequent to the FIR dated 10.2.2021 lodged by the first informant/opposite party 2 and giving rise to the present criminal proceeding the prosecutrix has solemnized marriage with the applicant. As such the prosecutrix is now the legally wedded wife of the applicant. In view of above the prosecutrix is now residing with the applicant as his legally wedded wife. From the wedlock of the prosecutrix and the applicant a female child was born. The birth certificate of new born child has been brought on record, copy of which is at page 84 of the paper book. The applicant has been shown to be the father and the prosecutrix has been shown to be the mother of new born child.

10. On the above premise, this Court finds that learned counsel for applicant is right in his submission that in view of aforementioned, subsequent developments that have taken place, in case, the criminal prosecution of applicant is allowed to continue the same shall result in great prejudice to the applicant and further more a happy family shall stand broken. At thus juncture reference be made to the judgment of the Supreme Court in K. Dhandapani Vs. State representing by the Inspector of Police 2022 SCC Online SC 1056 wherein the following has been observed :

"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 worksas a woodcutter on daily wages in a private factory. FIR was registered against him forcommitting 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 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."

11. In view of the peculiar facts and circumstances of the case discussion made above, present application succeeds and is liable to be allowed.

12. It is accordingly, allowed.

13. The entire proceedings of Sessions Case No.589 of 2021 (State Vs. Tauseef Ahmad), arising out of Case Crime No.54 of 2021, U/S 363, 366, 376 I.P.C. and Section 5/6 POCSO Act, Police Station Mahuli, District Sant Kabir Nagar now pending in the court of Special Judge (POCSO Act), Sant Kabir Nagar shall stand quashed.

14. Cost made easy."

4. Learned counsel for the applicant has submitted that the applicant was a surety of the Tauseef and they have submitted the bail bonds which is at page 44 of the paper book, however, the court below initiated proceedings under Section 491 of BNSS corresponding to para materia and corresponding to Section 446 of the Cr.P.C. He submits that once the proceedings against Tauseef stood quashed then nothing remains to be proceeded against him.

5. Learned State Law Officer, on the other hand, submits that be that as it may, it is always open for the applicant to take appropriate remedy for preferring either an application before the court below or to take any other legal proceedings as permissible under law.

6. Having heard the submissions so made across the bar, the Court is of the opinion that once it is the case of the applicant that the proceedings against Tauseef had come to an end in its favour by this Court in the above noted order then it is always open for the applicant to put to the notice of the said facts to the court below and this Court has no reasons to disbelieve that the same shall be considered and appropriate orders will be passed.

7. Accordingly, the application stands disposed of.

Order Date :- 2.6.2025

Rajesh