Karnataka High Court
Smt. Girijamma W/O. Rudresh K. M vs The State Of Karnataka on 9 October, 2024
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CRL.RP No. 100095 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100095 OF 2023
BETWEEN:
1. SMT. GIRIJAMMA W/O. RUDRESH K. M.
AGE. 41 YEARS, OCC. HOUSEWIFE,
R/O. ANTHAPUR KORACHARAHATTI VILLAGE,
TAL. SANDUR, DIST. BALLARI - 583 119.
2. SRI. MAHESH K. S/O. KENCHAPPA
AGE. 28 YEARS,
OCC. POLICE OFFICER,
R/O. SHIVAPURA VILLAGE,
AYYANAHALLI POST,
TAL. HUVINAHADAGALI - 583 219.
DIST. BALLARI.
3. SMT. NAGAMMA W/O. KENCHAPPA
AGE. 58 YEARS,
OCC. HOUSEHOLD WORK,
Digitally signed
R/O. SHIVAPURA VILLAGE,
by AYYANAHALLI POST,
SREEDHARAN
BANGALORE TAL. HUVINAHADAGALI - 583 219.
SUSHMA
LAKSHMI DIST. BALLARI - 583 119.
Location: HIGH
COURT OF
KARNATAKA ...PETITIONERS
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH CPI,
TORANAGALLU POLICE STATION,
NOW R/BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD, BENCH AT DHARWAD - 580 011.
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2. SMT. USHA S. W/O. RAGHAVENDRA
AGE. 45 YEARS,
OCC. DEPUTY DIRECTOR,
WOMEN AND CHILD DEVELOPMENT DEPARTMENT,
NEAR S.P. CIRCLE,
BALLARI - 583 101.
...RESPONDENTS
(BY SRI. KIRTILATA R PATIL, HCGP FOR R1;
R2 - SERVED;
SRI. VIJAY MALALI, ADVOCATE FOR VICTIM)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER
DATED 10.01.2023 PASSED BY THE COURT OF ADDL.
DISTRICT AND SESSION JUDGE F.T.S.C.-I (RAPE AND POCSO
CASES), AT BALLARI ON AN APPLICATION FILED U/SEC. 227
OF CR.P.C. IN SPECIAL CASE NO. 590/2020.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
08.07.2024 COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. This petition is filed by the petitioners being aggrieved
by the order dated 10.01.2023 passed in Spl.Case
No.590/2020 by the Additional District and Sessions
Judge, F.T.S.C-I at Ballari, wherein the Trial Court
rejected the application filed under Section 227 of the
Code of Criminal Procedure (for short 'Cr.P.C') for the
offence punishable under Section 376(2) of Indian
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Penal Code (for short 'IPC'), Sections 4, 5(j) and 6 of
the Protection of Children from Sexual Offences Act
(for short 'POCSO Act') and Sections 9, 10 and 11 of
the Prohibition of Child Marriage Act, 2006.
Brief facts of the case:
2. It is the case of the prosecution that a complaint came
to be registered by Deputy Director, Department of
Women and Child Development, Bellary stating that on
12.06.2019 she has received a message that child
marriage had taken place at Koracharahatti, After
receiving the message, she along with her staff visited
the village and secured the information about the
marriage. After clarifying that the child marriage had
taken place, a complaint was lodged by her to take
suitable action against the persons who were involved
in performing the marriage.
3. Based on the complaint of the complainant, the
jurisdictional police have registered a case against five
persons in Crime No.129/2019 for the offences under
Sections 9, 10 and 11 of the Prohibition of Child
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Marriage Act, 2006. The jurisdictional police have
conducted the investigation and thereafter submitted
the charge sheet against the five persons.
4. The petitioners who are accused Nos. 2, 3 and 5,
approached this Court being unsuccessful in the Trial
Court.
5. Heard Sri.Srinand A.Pacchapure, learned counsel for
petitioners and Smt.Kirtilata R.Patil, learned HCGP for
respondent No.1- State.
6. It is the submission of the learned counsel for the
petitioners that the complainant has mainly relied on
the school records of the victim without taking
statements of the parents of the victim, which is
erroneous and not proper.
7. It is further submitted that even though the school
records would indicate the age of the victim was about
17 years 7 months as on the date of marriage, the
said documents cannot be construed as conclusive
proof of the age of the victim.
8. It is further submitted that the parents of the victim
and the petitioners were aware of the actual age of the
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victim. According to them, the victim has completed
18 years as on the date of marriage. However, due to
some ignorance and also illiteracy, they did not give
proper information to the school authority at the time
of joining the victim to the school.
9. It is further submitted that Section 34(1) of the
POCSO Act and Section 94 of Juvenile Justice Act,
2015 becomes relevant to determine the age of the
victim. The said procedure has not been followed by
the investigating agency. In the absence of the
procedure required to be followed, it cannot be said
that the victim is a minor girl and the petitioners have
committed the above said offences.
10. It is further submitted that as the ingredients of the
above provisions are not made out against the
petitioners. Therefore, asking them to face the trial
would be an abuse of process of law and their
application may be considered and they may be
discharged from the above said offences. Making such
submissions, the learned counsel for the petitioners
prays to allow the petition.
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11. Per contra, the learned High Court Government
Pleader for the respondent - State vehemently
opposed the said submissions and further he
submitted that, the age of the victim as on the date of
marriage was 17 years 7 months.
12. It is further submitted that the victim was admitted to
the hospital to deliver baby, there she disclosed her
age as per Aadhar card. Therefore, the hospital
authority informed the concerned department to take
suitable action against the child marriage.
13. It is further submitted that there are prima facie
materials are made out against the petitioners, the
charge sheet would indicate that the petitioners are
involved in committing the offences stated supra.
Therefore, it is not appropriate to allow the application
of discharge. Making such submissions, the learned
High Court Government Pleader prays to dismiss the
petition.
14. Having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court
in appreciating the facts and circumstances of the
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case, it is necessary to refer the judgment of the
Hon'ble Supreme Court in the case of KANCHAN
KUMAR V. STATE OF BIHAR1, paragraph No.15
which read thus:
"15. Summarising the principles on discharge
under Section 227CrPC, in Dipakbhai
Jagdishchandra Patel v. State of Gujarat [Dipakbhai
Jagdishchandra Patel v. State of Gujarat, (2019) 16
SCC 547 : (2020) 2 SCC (Cri) 361] , this Court
recapitulated : (SCC p. 561, para 23)
"23. At the stage of framing the charge in
accordance with the principles which have
been laid down by this Court, what the
court is expected to do is, it does not act
as a mere post office. The court must
indeed sift the material before it. The
material to be sifted would be the
material which is produced and relied
upon by the prosecution. The sifting is not
to be meticulous in the sense that the
court dons the mantle of the trial Judge
hearing arguments after the entire
evidence has been adduced after a full-
fledged trial and the question is not
whether the prosecution has made out
the case for the conviction of the accused.
1
(2022) 9 SCC 577
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All that is required is, the court must be
satisfied that with the materials available,
a case is made out for the accused to
stand trial. A strong suspicion suffices.
However, a strong suspicion must be
founded on some material. The material
must be such as can be translated into
evidence at the stage of trial. The strong
suspicion cannot be the pure subjective
satisfaction based on the moral notions of
the Judge that here is a case where it is
possible that the accused has committed
the offence. Strong suspicion must be the
suspicion which is premised on some
material which commends itself to the
court as sufficient to entertain the prima
facie view that the accused has
committed the offence."
15. On careful reading of the dictum of the Hon'ble
Supreme Court, it is made it clear that the Court while
considering the discharge application, the Court need
not conduct a roving enquiry, however, simple and
necessary enquiry for a proper adjudication of an
application for discharge was bound to be conducted
to arrive at a conclusion.
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16. Coming to the present case on hand, initially, an FIR
was lodged by the jurisdictional police for the offences
under the Prevention of Child Marriage Act.
Subsequently, in the charge sheet, the other offences
were included.
17. On careful reading of the entire material produced
along with the charge sheet would indicate that the
Investigating Officer collected school records to
determine the age of the victim. The school records
would indicate that the victim was aged about 17
years 7 months as on the date of marriage. Further,
the victim herself stated before the police that she
joined first standard at the age of eight years and she
had completed 18 years as on the date of marriage.
18. It is also emerged from the records that the victim had
not consented for any medical examination either to
determine her actual age or for the examination
relating to the sexual assault. In the absence of the
medical examination, it is unsafe to proceed with the
case.
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19. Now, it is relevant to refer Section 94 of the Juvenile
Justice Act.
"94. Presumption and determination of age.-
(1) Where, it is obvious to the Committee or the
Board, based on the appearance of the person
brought before it under any of the provisions of
this Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as
nearly as may be and proceed with the inquiry
under section 14 or section 36, as the case may
be, without waiting for further confirmation of
the age.
(2) In case, the Committee or the Board
has reasonable grounds for doubt regarding
whether the person brought before it is a child
or not, the Committee or the Board, as the
case may be, shall undertake the process of
age determination, by seeking evidence by
obtaining --
(i) the date of birth certificate from the
school, or the matriculation or
equivalent certificate from the
concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
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(iii) and only in the absence of (i) and
(ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test
conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted
on the order of the Committee or the Board
shall be completed within fifteen days from the
date of such order.
(3) The age recorded by the Committee or the
Board to be the age of person so brought before
it shall, for the purpose of this Act, be deemed
to be the true age of that person."
20. On careful reading of the above said provision, the
above stated procedures are required to be followed to
determine the age of the victim. It is a settled
principle of law that the burden of proving that
someone is a juvenile is upon the person who claiming
it.
21. On careful reading of the principles enunciated under
the above section, it would make it clear that birth
certificate from the school or matriculation or
equivalent certificate from the concerned department
is very much necessary. However, in this case, even
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though the Investigating Officer obtained school
records, it cannot be construed as birth certificate. In
the absence of the documents as stated supra,
examination by the Board to determine the age is very
much essential.
22. In the present case, the Investigating Officer has not
produced any documents to show that the authority
had constituted a Board to determine the age of the
victim. Taking into consideration the submission of
the victim relating to her age and also considering the
lapses in the investigation relating to the age of the
victim, it is unsafe to proceed further in this case.
Therefore, I am of the considered opinion that the
petitioners had made out a case to discharge them.
23. In the light of the observations made above, I proceed
to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The order dated 10.01.2023 passed in
Spl.Case No.590/2020 by the Additional
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District and Sessions Judge, F.T.S.C-I at
Ballari is set aside.
(iii) The petitioners are discharged for the
offences punishable under Section 376(2) of
IPC, Sections 4, 5(j) and 6 of POCSO Act and
Sections 9, 10 and 11 of the Prohibition of
Child Marriage Act, 2006.
Sd/-
(S.RACHAIAH)
JUDGE
UN
