Sakshayt Solanki (Minor) Through His ... vs State Of Haryana And Another
2023 Latest Caselaw 22353 P&H

Punjab-Haryana High Court

Sakshayt Solanki (Minor) Through His ... vs State Of Haryana And Another on 20 December, 2023

Author: Alka Sarin

Bench: Alka Sarin

                            CRWP No.10893 of 2023                 1                     2023:PHHC:164386

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                            119                                           CRWP No.10893 of 2023
                                                                          Date of Decision : 20.12.2023


                            Sxxxx through his Father                                          ....Petitioner

                                                              VERSUS

                            State of Haryana and Another                                   ....Respondents


                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                            Present :    Mr. Rajesh Ranjan, Advocate for the petitioner.

                                         Ms. Mahima Yashpal, DAG Haryana.


                            ALKA SARIN, J. (Oral)

1. The prayer in the present petition is for granting interim

protection to the petitioner in FIR No.333 dated 16.09.2023 under Sections

354-C, 376, 506, 120-B and 34 of the Indian Penal Code, 1860 and Sections

4 and 6 of the Protection of Children from Sexual Offences Act, 2012

registered at Police Station Urban Estate Rohtak, District Rohtak and for

quashing of the same.

2. The brief facts relevant to the present case are that a complaint

was registered on the statement of the complainant on 16.09.2023 wherein

she alleged that one student, namely, S (petitioner herein), used to study with

her. As a classmate they became friends and their teacher knew about it. It is

further the allegation that they along with 8-10 other classmates used to

study and enjoy together. However, her family came to know about it and

asked her to stay away from the said friend circle and to concentrate on her

studies after which she stopped talking to the petitioner and others. On

integrity of this order/judgment.

CRWP No.10893 of 2023 2 2023:PHHC:164386

04.03.2023 her teacher asked her to come to a get together of all the students

which she had organized at the house of one of her students'. When the

complainant reached the given address and entered the house she was

shocked to see that nobody was present inside the house. Suddenly, the

petitioner came and closed all the doors of the house. She got worried and

screamed but it was all in vain. The petitioner forcibly took her to his room

and took off her clothes and forced himself upon her and thereafter took

some objectionable pictures of her. He also snatched her mobile phone and

transferred her personal photos to his phone and threatened her. She is stated

to have gone in deep shock and depression due to the said incident.

Thereafter, it was alleged, that she was able to overcome the said incident

and after sometime went for tuition but on that day also, after the tuition got

over, the petitioner threatened her that he had nude photographs of her and

asked her to come to his house again. However, in a state of fear she ran

away from there and came to her own house and narrated the incident to her

family. On the basis of the said statement the present FIR was registered.

Thereafter, statement of the complainant was recorded under Section 164

CrPC on 16.09.2023. Her medical was also conducted on 16.09.2023.

3. The petitioner thereafter approached this Court for grant of

anticipatory bail by filing CRM-M-51268-2023 which was disposed off vide

order dated 10.10.2023 with the following observations :

"3. Learned counsel for the petitioner is unable to

convince this Court that the present petition under

Section 438 CrPC for grant of anticipatory bail would

be maintainable when there is a special enactment

dealing with juveniles. Learned counsel for the

integrity of this order/judgment.

CRWP No.10893 of 2023 3 2023:PHHC:164386

petitioner, after arguing for sometime, seeks liberty to

avail his alternate remedies. He states that the petitioner

is ready and willing to appear and surrender before the

Juvenile Justice Board concerned.

4. In view of the limited prayer made by learned

counsel for the petitioner, the present petition is

disposed off with a direction to the petitioner to appear

and surrender before the Juvenile Justice Board

concerned within a period of 10 days from today. Till

then, no coercive steps be taken against the petitioner.

In the event of the petitioner failing to surrender before

the Juvenile Justice Board within a period of 10 days

from today, the present petition shall be deemed to

having been dismissed. In case on appearance the

petitioner moves an application for bail under Section

12 of the Juvenile Justice (Care and Protection of

Children) Act, 2015, the same shall be decided

expeditiously, in accordance with law."

4. The petitioner did not comply with the order dated 10.10.2023

and approached this Court by way of the present petition which was filed on

04.11.2023 seeking blanket protection and for quashing of the FIR wherein

the head-note reads as under :

"Criminal Writ Petition under Article 226 of the

Constitution of India read with Section 482 CrPC for

issuance of a Writ of Mandamus etc. or any order to the

respondents in respect of FIR No.333/2023 for

integrity of this order/judgment.

CRWP No.10893 of 2023 4 2023:PHHC:164386

protection of minor petitioner and for issuance of a writ

of certiorari for quashing of FIR No.333/2023 dated

16.09.2023 and 41A CrPC notice dated 21.10.2023 and

to direct the respondent to allow the petitioner to join

the investigation proceedings at his residence without

being subjected to coercive measures and to direct the

respondents to refrain from unlawful proceedings

against the petitioner and to expedite action on the

petitioner's complaint and to pass any other or further

orders as this Hon'ble Court may deem fit and proper in

the circumstances of the present case."

5. In the present petition it has been stated that the following

questions of law arise :

"1. Whether a juvenile can apply for anticipatory bail

application or pre arrest bail?

2. Whether POCSO Act applies in case of minor

accused aged less than 16 years of age at the time of

alleged incident?

3. Whether POCSO Act applies in case of romantic

and consensual affair between two juveniles/ minors

4. Whether section 12 of the Juvenile Justice Act bars

a juvenile from preferring application under section 438

CrPC. If yes then whether it amounts to unreasonable

classification and is hit by Article 14?

5. Whether, non obstante clause used in the middle of

section 12 of JJ Act is restricted to conditions related to

integrity of this order/judgment.

CRWP No.10893 of 2023 5 2023:PHHC:164386

release of the juvenile after he is brought to or he

surrenders before the board or it also applies to the

stage before apprehension, appearance or surrender?

6. Whether a relief such as per arrest bail that has

been denied on the technical ground of non-

maintainability of such application under section 438

CrPC by juvenile by a single judge bench of the Hon'ble

High court be granted in the extraordinary jurisdiction

of the court in a petition under Article 226?

7. Whether silence of the JJ Act on the subject of

Anticipatory bail implies negation of the same as the

intent of the law makers?

8. Whether a cryptic FIR filed after inordinate delay

and followed by two consecutive statements of the

prosecutrix improvising the statements recorded in the

FIR is liable to be quashed or in the alternative liable to

be subjected to preliminary investigation into the

veracity of the statements in the complaint?

The following prayers have been made in the present petition :

"It is, therefore, prayed that this Hon'ble Court be

graciously pleased to:

a) Petition under article 226 of the Constitution of

India read with Section 482 CrPC for issuance

of a writ of mandamus, etc or any order to the

respondents in respect of FIR No.333/2023 for

protection of minor petitioner and for issuance

integrity of this order/judgment.

CRWP No.10893 of 2023 6 2023:PHHC:164386

of a writ of certiorari for quashing of FIR

No.333/2023 dated 16.09.2023 and 41A CrPC

notice dated 21.10.2023 and to direct the

respondent to allow the petitioner to join the

investigation proceedings at his residence

without being subjected to coercive measures

and to direct the respondents to refrain from

unlawful proceedings against the petitioner and

to expedite action on the petitioner's complaint

and to pass any other or further orders, as this

Hon'ble court may deem fit and proper in the

circumstances of the present case

b) issue a writ in the nature of Mandamus for

directing the Respondents to abstain from using

coercive measures against the minor petitioner

and writ of certiorari for quashing the notice

under section 41A CrPC dated 21.10.2023 or

writ of certiorari for quashing the FIR

No.333/2023 dated 16.09.2023 against the

minor petitioner the any other writ, order or

direction as may be deemed appropriate by this

Hon'ble Court.

c) To direct the Respondent to allow the petitioner

to join the investigation proceedings at his

residence without being subjected to coercive

measures.

integrity of this order/judgment.

CRWP No.10893 of 2023 7 2023:PHHC:164386

d) To direct the Respondents to refrain from

unlawful proceedings against the petitioner and

to expedite action on the petitioner's complaint.

e) Pass any other or further orders, as this

Hon'ble Court may deem fit and proper in the

circumstances of the present case.

f) May kindly be exempted from filing original

copies of annexure and grant permission for

filing true translated/photocopies of the same

(annexure P-1 to P-14)."

6. The present case was listed for preliminary hearing on

08.11.2023 and was adjourned to today for filing of a status report. It is apt

to notice that no interim relief was granted on 08.11.2023 by this Court.

Learned counsel for the petitioner has informed the Court that subsequently

the petitioner approached the Hon'ble Supreme Court by filing Special

Leave to Appeal (Crl.) No.15843 of 2023 challenging the order dated

10.10.2023 passed in CRM-M-51268-2023. In the said Special Leave to

Appeal the petitioner has been granted interim protection till the next date of

hearing i.e. 08.01.2024.

7. Reply by way of affidavit of Sh. Sandeep Kumar, HPS, Deputy

Superintendent of Police, HQ, Rohtak filed by learned State counsel is taken

on record. Registry to scan the same and tag at the appropriate place. As per

the reply, the petitioner did not surrender within 10 days granted to him vide

order dated 10.10.2023 passed in CRM-M-51268-2023.

8. Learned counsel for the petitioner has contended that there are

following infirmities in the FIR :

integrity of this order/judgment.

                             CRWP No.10893 of 2023               8                     2023:PHHC:164386

                                              i.    There is inordinate delay of over 6 months in

                                              lodging of the FIR

ii. The prosecutrix does not specify the address of the

house where she was called by her teacher for party and

where the alleged offence took place.

iii. The prosecutrix states that there was no one in the

house and suddenly the Petitioner came and disrobed

her. This statement has inherent flaws. It is not

believable that the petitioner could have overpowered

her without any help.

iv. The prosecutrix states that the petitioner first took

her nude picture on her phone and thereafter he

transferred the pictures to his phone. The question that

arises is that what was the prosecutrix doing while the

petitioner was transferring the pictures from her phone

to his own phone.

v. There is no mention of the time and place of

occurrence.

vi. The prosecutrix states that she started taking

tuitions again after sometime but did not say any thing

to her parents. This is also not palatable to a reasonable

mind.

vii. The prosecutrix states that when the petitioner

asked her to obey her commands otherwise he would

upload her pictures on the web, she went to her home

and told everything to her parents. Time and date of this

integrity of this order/judgment.

CRWP No.10893 of 2023 9 2023:PHHC:164386

incident is not stated. Another question that arises is that

when the parents were informed of the incident why

didn't they expeditiously approach the police and what

made them wait for long? There are glaring ambiguities

in the statements of the prosecutrix.

viii. There is a reasonable hypothesis: The family

members of the prosecutrix could have chosen a nearer

date for their concocted plot but they wanted to choose a

date on which the prosecutrix was considerably aged

less than 16 so that the hardships of the petitioner could

be accentuated by abuse of the process of law.

ix. There are clear evidences to show that the

prosecutrix had known her tuition teacher since she was

in class 11 and the petitioner joined in April 2023,

nearly a month after the date of the alleged incident.

9. Learned State counsel on instructions from SI Sukhbir Singh

has stated that after the order passed by Hon'ble Supreme Court on

13.12.2023 the petitioner has not joined the investigation despite his father

being duly informed. Learned State counsel has further pointed out that in

the present case the matter is still at the initial stage inasmuch as the

investigation is going on and the petitioner has not even joined the

investigation.

10. I have heard learned counsel for the parties.

11. In the present case initially the petitioner had approached this

Court for grant of anticipatory bail by filing CRM-M-51268-2023 which

was disposed off vide order dated 10.10.2023. A perusal of the order dated

integrity of this order/judgment.

CRWP No.10893 of 2023 10 2023:PHHC:164386

10.10.2023 reveals that the counsel for the petitioner, after arguing for

sometime, sought liberty to avail his remedies in law and stated that the

petitioner is ready and willing to appear and surrender before the Juvenile

Justice Board. In view of the limited prayer made by the counsel, the petition

was disposed off with a direction that the petitioner would appear and

surrender before the Juvenile Justice Board concerned within a period of 10

days from the date of passing of the order and till such time no coercive

steps would be taken. The petitioner failed to appear before the Board and

instead filed the present omnibus petition seeking various reliefs including a

blanket protection from arrest. When no interim relief was granted on the

first date of hearing i.e. 08.11.2023, the petitioner challenged the order dated

10.10.2023 before the Hon'ble Supreme Court by filing Special Leave to

Appeal (Crl.) No.15843 of 2023 wherein the following order was passed on

13.12.2023 :

"1. Issue notice, returnable on 08.01.2024.

2. Having regard to the submissions made by the

learned senior Counsel, Mr. Yatendra Singh that the

petitioner is a student of Class XII - Science Stream and

his pre-Boards examination are scheduled to commence

from 14.12.2023, and that if he is not allowed interim

protection, his career will be ruined, it is directed that

the petitioner shall not be arrested in connection with

the F.I.R. No.333 of 2023 dated 16.09.2023 registered at

Urban Estate Police Station, Rohtak, till the returnable

date, subject to the condition that the petitioner shall

cooperate with the investigation."

integrity of this order/judgment.

CRWP No.10893 of 2023 11 2023:PHHC:164386

12. The prayers made in the present petition have been reproduced

above. As far as the prayer for protection of the petitioner is concerned, this

Court vide order dated 10.10.2023 passed in CRM-M-51268-2023 had

granted the petitioner protection for 10 days for him to approach the Juvenile

Justice Board and for moving an application under Section 12 of the Juvenile

Justice (Care and Protection of Children) Act, 2015. The petitioner failed to

appear before the Board and filed the present petition instead. The petitioner

thereafter challenged the order dated 10.10.2023 passed in CRM-M-51268-

2023 before the Hon'ble Supreme Court by filing Special Leave to Appeal

(Crl.) No.15843 of 2023. The Hon'ble Supreme Court is already seized of

the matter and hence the question of granting any further protection to the

petitioner does not arise in the present case. Further prayer made in the

present petition is for quashing of the present FIR. The Hon'ble Supreme

Court in the case M/s Neeharika Infrastructure Pvt. Ltd. vs. State of

Maharashtra & Ors. [Criminal Appeal No.330 of 2021 decided on

13.04.2021] has answered the questions as to when the High Court would be

justified in interfering with the investigation by the Police while exercising

the inherent power under Section 482 CrPC and/or Article 226 of the

Constitution of India and in para Nos.10 and 11 of the said judgment it was

held as under :

"10. From the aforesaid decisions of this Court, right

from the decision of the Privy Council in the case of

Khawaja Nazir Ahmad (supra), the following principles

of law emerge:

i) Police has the statutory right and duty under the

relevant provisions of the Code of Criminal Procedure

integrity of this order/judgment.

CRWP No.10893 of 2023 12 2023:PHHC:164386

contained in Chapter XIV of the Code to investigate into

cognizable offences;

ii) Courts would not thwart any investigation into the

cognizable offences;

iii) However, in cases where no cognizable offence or

offence of any kind is disclosed in the first information

report the Court will not permit an investigation to go

on;

iv) The power of quashing should be exercised

sparingly with circumspection, in the 'rarest of rare

cases'. (The rarest of rare cases standard in its

application for quashing under Section 482 Cr.P.C. is

not to be confused with the norm which has been

formulated in the context of the death penalty, as

explained previously by this Court);

v) While examining an FIR/complaint, quashing of

which is sought, the court cannot embark upon an

enquiry as to the reliability or genuineness or otherwise

of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at

the initial stage;

vii) Quashing of a complaint/FIR should be an

exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the

jurisdiction of the police, since the two organs of the

State operate in two specific spheres of activities. The

integrity of this order/judgment.

CRWP No.10893 of 2023 13 2023:PHHC:164386

inherent power of the court is, however, recognised to

secure the ends of justice or prevent the above of the

process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are

complementary, not overlapping;

x) Save in exceptional cases where non-interference

would result in miscarriage of justice, the Court and the

judicial process should not interfere at the stage of

investigation of offences;

xi) Extraordinary and inherent powers of the Court do

not confer an arbitrary jurisdiction on the Court to act

according to its whims or caprice;

xii) The first information report is not an

encyclopaedia which must disclose all facts and details

relating to the offence reported. Therefore, when the

investigation by the police is in progress, the court

should not go into the merits of the allegations in the

FIR. Police must be permitted to complete the

investigation. It would be premature to pronounce the

conclusion based on hazy facts that the complaint/FIR

does not deserve to be investigated or that it amounts to

abuse of process of law. During or after investigation, if

the investigating officer finds that there is no substance

in the application made by the complainant, the

investigating officer may file an appropriate

report/summary before the learned Magistrate which

integrity of this order/judgment.

CRWP No.10893 of 2023 14 2023:PHHC:164386

may be considered by the learned Magistrate in

accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide,

but conferment of wide power requires the court to be

cautious. It casts an onerous and more diligent duty on

the court;

xiv) However, at the same time, the court, if it thinks fit,

regard being had to the parameters of quashing and the

self-restraint imposed by law, more particularly the

parameters laid down by this Court in the cases of R.P.

Kapur (supra) and Bhajan Lal (supra), has the

jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the

alleged accused, the court when it exercises the power

under Section 482 Cr.P.C., only has to consider whether

or not the allegations in the FIR disclose the

commission of a cognizable offence and is not required

to consider on merits whether the allegations make out a

cognizable offence or not and the court has to permit the

investigating agency/police to investigate the allegations

in the FIR.

11. Whether the High Court would be justified in

granting stay of further investigation pending the

proceedings under Section 482 Cr.P.C. before it and in

what circumstances the High Court would be justified is

a further core question to be considered. Before passing

integrity of this order/judgment.

CRWP No.10893 of 2023 15 2023:PHHC:164386

an interim order of staying further investigation pending

the quashing petition under Section 482 Cr.P.C. and/or

Article 226 of the Constitution of India, the High Court

has to apply the very parameters which are required to

be considered while quashing the proceedings in

exercise of powers under Section 482 Cr.P.C. in

exercise of its inherent jurisdiction, referred to

hereinabove."

13. Though learned counsel for the petitioner has sought to argue

the matter on merits, however, in the opinion of this Court the same cannot

be gone into at this stage. From a reading of the FIR it cannot be said that no

cognizable offence is made out. This Court, at this nascent stage of the

investigation, cannot go into the merits of the allegations in the FIR and the

Police must be permitted to complete the investigation. It would be hasty to

reach a conclusion that the FIR does not deserve to be investigated or go into

the reliability and genuineness of the allegations made in the FIR. The

investigation is at the initial stage and the petitioner, despite the order passed

by the Hon'ble Supreme Court on 13.12.2023, has not joined the

investigation till date. Though this is disputed by learned counsel for the

petitioner, be that as it may, the fact remains that the entire matter is still at

the investigation stage and hence no interference is called for at this

juncture. This Court is constrained to observe that the petitioner, despite two

orders granting him interim protection, has failed to comply with both the

orders. Having failed to get the order in the petition for grant of anticipatory

bail from this Court the counsel sought liberty to approach the Board, which

concession was granted to the petitioner and he was protected for 10 days to

integrity of this order/judgment.

CRWP No.10893 of 2023 16 2023:PHHC:164386

enable him to approach the Board. The petitioner instead of complying with

the said order has yet again approached this Court by way of the present

petition and having failed to persuade this Court to grant an interim order

approached the Hon'ble Supreme Court. The conduct of the petitioner

amounts to forum shopping.

14. In view of the above, the present petition is dismissed

accordingly at this stage being premature. Pending applications, if any, also

stand disposed off.

15. It is also made clear that any observation made herein shall not

be treated as an expression of opinion on the merits of the case.

( ALKA SARIN ) 20.12.2023 JUDGE jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

integrity of this order/judgment.