Allahabad High Court
Satish Ahirwar vs State Of U.P. & 3 Others on 6 March, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:33195
Court No. - 71
Case :- APPLICATION U/S 482 No. - 41043 of 2024
Applicant :- Satish Ahirwar
Opposite Party :- State Of U.P. & 3 Others
Counsel for Applicant :- Saket Jaiswal
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Saket Jaiswal, the learned counsel for applicant and the learned A.G.A. for State/opposite party no.1.
2. Perused the record.
3. At the very outset, the learned A.G.A. for State/opposite party no.1 submits that notice of this application has been served upon the first informant on 3rd December, 2024. However, in spite of such service of notice, neither any counter affidavit has been filed by the first informant/opposite party no.4 in opposition to this application nor any one has put in appearance on his/her behalf to oppose this application even in revised call.
4. Applicant Satish Ahirwar, 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 present Criminal Misc. Application (Under Section 482 Cr.P.C.) and to quash/set aside the impugned order dated 25.09.2024 passed by the Special Judge (POCSO Act), Hamirpur in Special Case No.1720/2023 (State vs. Satish Ahirwar) under Sections 363, 366, 376(3)(N) I.P.C., section 6 of POCSO Act, arising out of Case Crime No. 250/2023 Police Station -Rath, District Hamirpur in so far as the same relates to the rejection of the application (Paper No.33Ka) filed by the applicant."
5. Learned counsel for applicant contends that though applicant is named and charge-sheeted accused and facing trial before court below in aforementioned special case but in view of the peculiar facts and circumstances that have now emerged on record, the criminal prosecution of applicant cannot be sustained now and is, therefore, liable to be quashed by this Court.
6. In furtherance of above submission,the learned counsel for applicant submits that criminal prosecution of applicant commenced when an F.I.R. dated 30th May, 2023 was lodged by the first informant/opposite party no.2 Kamta Prasad (father of the prosecutrix) and was registered as Case Crime No. 0250 of 2023, under Section 363 I.P.C. Police Station Rath, District-Hamirpur. However, subsequent to the aforesaid first information report, the applicant solemnized marriage with the prosecutrix on 16th June, 2023. By reason of above, the prosecutrix became the legally wedded wife of applicant. Consequently, the prosecutrix started residing with the applicant as his legally wedded wife. The bona fide of the parties is further evident from the fact that the marriage of the parties has also been registered under the provisions of the U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate of the applicant and the prosecutrix has been brought on record and is at page 59 of the paper book. No proceedings have been initiated by the prosecutrix for cancellation of the said marriage certificate. In view of the fact that the marriage of the parties is registered under the relevant rule, therefore there is a statutory presumption regarding existence of valid and legal marriage of the applicant and prosecutrix.
7. On the above premise, the learned counsel for applicant contends that in view of aforementioned subsequent developments the criminality, if any, committed by applicant stands washed off. Moreover, in view of the aforementioned development no useful purpose shall 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. To buttress his submission, the learned counsel for applicant has referred to the judgments of the Supreme Court in the case of K. Dhandapani Vs. The State By the Inspector of Police reported in 2022 SCC OnLIne SC and in the case of Mafat Lal & Another Vs. State of Rajasthan reported in (2022) 6 SCC 589, wherein the Apex Court also quashed the proceedings against the accused therein on the ground that the accused had solemnized marriage with the prosecutrix. He, therefore, submits that in view of above, the present application is liable to be allowed.
8. It is then contended by the learned counsel for applicant that the applicant had filed an application before court below stating therein that since no document referable to Section 94 (2) (i) and Section 94 (2) (ii) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the "Act of 2015") is available on record, therefore, by virtue of provisions contained in Section 94 (2) (iii) of Act of 2015, the age of prosecutrix be got determined by getting an ossification test conducted.
9. In the submission of the learned counsel for applicant, the previsions contained in Section 94 (2) (i), 94 (2) (ii) and 94 (2) (iii) of POCSO Act apply in a preferential manner, meaning thereby that the court will first proceed to determine the age of child, as per the documents mentioned in Section 94 (2) (i). However, only when none of the documents as mentioned in Section 94 (2) (i) are available, the court shall resort to the provisions contained in 94 (2) (ii). In case the documents mentioned in Section 94 (2) (ii) are also not available, then the court shall proceed to get the age of the child determined medically.
10. On the above premise, the learned counsel for applicant submits that the court below has not returned any finding which may be in consonance with the aforesaid provisions. Simply on the basis of vague and weak material as available on record qua the date of birth of the prosecutrix, the application filed by the applicant for getting ossification test of the prosecutrix for determining her age has been rejected. As such, the order impugned is not only illegal and perverse but also erroneous. Consequently the same is liable to be quashed by this Court.
11. Per contra, the learned A.G.A. for State/opposite party no.1 has vehementally opposed the present application. 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.
12. Having heard the learned counsel for applicant, the learned A.G.A. for State/opposite party no.1 and upon perusal of the record, this Court finds that the matter requires consideration.
13. Notice on behalf of opposite party no.1 has been accepted by the learned A.G.A.
14. Issue notice to opposite party no.2. Notice issued to opposite party no.2 shall be made returnable on 17th April, 2025. Notice shall further indicate that matter shall re-appear for admission as fresh on 17th April, 2025.
15. Both the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.
16. List for admission as fresh on 17th April, 2025.
17. Considering the facts and circumstances of the case and also the submission urged by the learned counsel for applicant as noted herein above, as an interim measure, it is provided that further proceedings in Special Case No.1720/2023 (State vs. Satish Ahirwar) under Sections 363, 366, 376(3)(N) I.P.C., Section 6 of POCSO Act, arising out of Case Crime No. 250/2023 Police Station -Rath, District Hamirpur, now pending in the court of Special Judge (POCSO Act), Hamirpur shall remain stayed.
(Rajeev Misra, J.)
Order Date :- 6.3.2025
Sushil/-
