Pankaj Kumar Mahobiya vs The State Of Madhya Pradesh
2023 Latest Caselaw 5820 MP

                                                                         1
                                        IN     THE      HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                BEFORE
                                             HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
                                                             ON THE 11 th OF APRIL, 2023
                                                     MISC. CRIMINAL CASE No. 38070 of 2022

                                       BETWEEN:-
                                       PANKAJ KUMAR MAHOBIYA, S/O VISHAMBHAR
                                       PRASAD MAHOBIYA, AGED ABOUT 22 YEARS,
                                       OCCUPATION: SECURITY GUARD R/O SASTRA, P.S.
                                       NOUROJABAD, DISTRICT- UMARIYA     (MADHYA
                                       PRADESH)

                                                                                                      .....APPLICANT
                                       (BY SHRI SUSHIL KUMAR TIWARI - ADVOCATE)

                                       AND
                                       THE STATE OF MADHYA PRADESH P.S. PALI DISTRICT-
                                       UMARIA (MADHYA PRADESH)

                                                                                                    .....RESPONDENT
                                       (BY SHRI HARSH           GUPTA        -   PANEL   LAWYER     FOR     THE
                                       RESPONDENT/STATE )

                                             This application coming on for admission this day, the court passed the
                                       following:
                                                                          ORDER

The instant petition under Section 482 Cr.P.C. has been filed for quashing the order dated 16.07.2022, passed by the learned Sessions Judge in S.T.No. 72/1026, whereby the learned Court on the date of delivery of judgment made over the case Court of Special Judge (POCSO) Act, 2012.

The prosecution case, in short is that on 25.07.206, the prosecutrix has

Signature Not Verified lodged a written complaint before S.P. and alleged that applicant/accused SAN

Digitally signed by VAISHALI AGRAWAL Pankaj Mahobiya is residing near her house and since last many years stating Date: 2023.04.13 18:08:12 IST

that he is loving her and he will marry her then on his version, she also loved

him and ready to marry with him. On 08.07.2016, she left her house and had gone with the applicant and went to Kharasiya, District-Raigarh, and on 09.07.2016 in Shivaji Temple they performed marriage and afterthat, they stayed in the Dharmshala and applicant/accused started physical relation for about 4 time and thereafter on 10.07.2016, the applicant/accused leave the place and thus she alleged that on assurance to marry her, the applicant/accused committed the sexual exploitation. Thereafter, on 27.08.2016, report has been lodged under Sections 366, 376(1) of IPC at the time of lodging the FIR, her aged was about more than 21 years and 14 days. After investigation, the police has filed the challan and in her statement recorded under Section 164, she

admitted that her age is 21 years at the first date of incident i.e. on 08.07.2016.

Learned counsel for the petitioner submits that learned trial Court has failed to consider that in the entire investigation the case of prosecution was not under provision of POCSO Act, 2012. As admittedly, the prosecutrix was aged about more than 18 years on each and every time of incident. No school record or documents regarding age of prosecutrix had been collected by the prosecution agency becauseas per the to allegation of FIR and statement recorded under Sections 161 and 164 of Cr.P.C. of the prosecutrix, she was major and aged about more than 18 years. It is also submitted that in examination in-chief recorded before trial Court, the prosecutrix had not stated anything that incident was happened with her in year 2011 or 2013. She clearly stated that her date of birth is 14.06.1995 and on perusal of para No. 7 to 13, of examination-in-chief of prosecutrix, it is crystal clear that she was a consenting Signature Not Verified SAN party, and had performed the marriage as a major girl and was not minor. Digitally signed by VAISHALI AGRAWAL Date: 2023.04.13 18:08:12 IST Learned counsel for the petitioner further submits that learned Court

below on the basis of presumption and assumption apprehended that the incident might be taken place in the year 2011, which come on the suggestion of counsel for applicant/accused in Para Nos. 14 & 15 of the cross-examination of prosecutrix. She had mentioned that since 2011, she is in relationship with the applicant. The learned trial Court has misreaded the interpretation of his suggestion which was put only because that the incident occurred from 2011 is material omissions in her police report.

Learned counsel for the petitioner also submits that learned Court below has committed the gross error of law in passing the impugned order and fails to consider that the case cannot be made over to another Court after conclusion of whole trial at the time of delivery of judgment and the impugned order is amount to denovo trial. It is further submitted that after conclusion of whole trial and at the time of delivery of judgment, the fresh inquiry or investigation is not permissible and the judgment ought to be delivered by the same Court on the evidence which came in S.T.No.72/2016. It is further submitted that by assuming that her date of birth was 26.06.1995, in case of incident dated 08.07.2016, or thereafter, she was 21 years and 14 days old. According to her statement recorded under Section 161 of Cr.P.C., if the incident was started from 1 to 2 years back from the date of her statement recorded under Section 161 of Cr.P.C. on 27.08.2016, if we will go back in year 2015, then she would

be 20 years, 2 months and 3 days and in the year 2014, she would be 19 years, 2 months and 3 days and in case of incident happened in year 2013, she would be age of 18 years 2 months and 3 days. In case of incident of year 2011 in the month of December, she would be 16 years, 5 months and 14 days or assuming Signature Not Verified SAN

the date of incident 08.07.2011, her age would be 16 years and 14 days. The Digitally signed by VAISHALI AGRAWAL Date: 2023.04.13 18:08:12 IST

POCSO Act came in existence on 14.11.2012 then also if incident relates to

2011, the POCSO, Act is not attracted. There is no evidence that in the year 2012, the relationship was started, therefore, in view of the aforesaid facts and circumstances of the case, evidence and documents available on record on the grounds the impugned order is absolutely illegal, perverse and contrary to law.

Learned Panel Lawyer for the respondent/State on the other hand has opposed the application.

I have heard learned counsel for parties and perused the material available on record.

On perusal of record, it is clear that there is no case of prosecution that incident was take place in year 2011. In FIR, in statement recorded under Section 161 of Cr.P.C., in statement recorded under Section 164 of Cr.P.C and in-examination of chief, prosecutrix has not stated that anything regarding that the incident is running from year 2011. In cross-examination, some suggestion has been given by counsel for defence for verification then prosecutrix in her cross-examination, in Para No.14 stated that accused has been making physical relation with her from year 2011. On the basis of cross-examination, it cannot be said that incident was taken place on 2011. It is pertinent to note that Protection of Children From Sexual Offences Act, 2012. has come in force w.e.f. 24.11.2012, if it is assumed that incident was taken place in the year 2011 the Protection of Children From Sexual Offences Act, 2012 has not came in existence.

In these circumstances, this petition is allowed. Consequently, the order dated 16.07.2022 is hereby set-aside passed by learned trial Court in

Signature Not Verified SAN S.T.No.72/2016 (which now Special Case No.22/2022).

Digitally signed by VAISHALI AGRAWAL Certified Copy as per rules.

Date: 2023.04.13 18:08:12 IST

(RAJENDRA KUMAR (VERMA)) JUDGE vai

Signature Not Verified SAN

Digitally signed by VAISHALI AGRAWAL Date: 2023.04.13 18:08:12 IST