Kutubuddin Mallick @ Kutub ... vs State Of West Bengal And Anr
2022 Latest Caselaw 7275 Cal

Form J(1)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Revisional Jurisdiction
                             Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                      CRR 3132 of 2022



               Kutubuddin Mallick @ Kutub Mallick
                              Vs.
                 State of West Bengal and Anr.


      Mrs. Subhasree Patel
      Ms. Saini Das
                      ....for the petitioner




Item No.22


Heard & Judgment on:         31.10.2022


Bibek Chaudhuri, J.

The petitioner is the accused in connection with Chanditala

Police Station Case No.61 of 2020 under Sections 363/365 of the

Indian Penal Code read with Sections 4(1) and 6 (1) of the

Protection of Children from Sexual Offences Act, 2012.

The aforesaid FIR case ended in filing charge sheet against

the petitioner under the above mentioned penal provisions. The

petitioner has prayed for quashing the aforesaid proceeding on

the ground that the victim girl willingly left her paternal home

and married the petitioner. They used to live as husband and

wife and in their wedlock the victim girl gave birth to a child.

Under such circumstances, there cannot be any charge under

Sections 363/365 of the Indian Penal Code read with Sections

4(1) and 6(1) of the POCSO Act.

The learned advocate for the petitioner relies on the

statement of the victim girl recorded under Section 164 of the

Code of Criminal Procedure. The victim girl stated that her

parents used to assault her physically and wanted to settle her

marriage with some persons other than the petitioner. So she

voluntarily left her paternal home. She has attained age of 18

years and her marriage was solemnized with the petitioner.

Whether the petitioner was major or not at the time of her

marriage, consummation of marriage and delivery of child are

questions of fact to be decided only during trial of the case. The

revisional Court cannot quash a proceeding on the basis of a

statement of the victim girl under Section 164 of the Code of

Criminal Procedure.

In view of the above discussion, I do not find any merit in

the instant revision and accordingly the revisional application is

dismissed. However, the petitioner is at liberty to agitate this

point at the time of consideration of charge and the learned trial

Judge is directed to consider as to whether there is sufficient

material to frame charge on the basis of the materials on record,

documents supplied under Section 207 of the Code of Criminal

Procedure and other materials in the case diary.

(Bibek Chaudhuri, J.)