Suneel vs State Of Uttarakhand And Others

Pankaj Purohit, J

Heard learned counsel for the parties.

By means of the present C482 application, the applicant has put to challenge the entire proceedings of Special Sessions Trial No.135 of 2017 State Vs. Suneel, pending in the Court of learned Special Judge (POCSO)/ Additional Sessions Judge, Haridwar, for the offences under Sections 363, 366A, 376 IPC and under Section 5(j)(II)/6 of the Protection of Children From the Sexual Offences (POCSO) Act, and to summon the respondent No.3 in-person before this Court from the Nari Niketan Dehradun, District Dehradun to know about the will of the respondent No.3 and thereafter release the respondent No.3 as per her will.

The brief facts of the case are that the respondent No.2-Shivcharan (complainant) has lodged an FIR on 22.08.2017 being FIR No.353 of 2017 against the applicant alleging therein that the applicant had enticed away his sister Km. Laxmi (respondent No.3) and took her away with him on 19.08.2017 at about 05:00 PM; after being searched, the family members of the applicant said the applicant was also absent from his house.

It is contended by learned counsel for the applicant that the applicant did not commit any offence as alleged by the respondent No.2-complainant in the FIR; the applicant and the victim-Laxmi (respondent No.3) have love affection with each other; they told their parents to marry with each other but the family members of respondent No.3 did not get ready to marry her with the applicant; respondent No.3 has left her home with the applicant with her free will and went to Panipat and got married with the applicant as per Hindu Rituals and Customs on 10.02.2017 in Gauri Shankar Mandir and the priest of the said Mandir also issued a certificate to this effect to the applicant, which is annexed as Annexure No.2 to this C482 application.

It is further contended by learned counsel for the applicant that the victim (respondent No.3) was major; applicant married to her; out of the wedlock, a child was born. He argued that by an order of the Court, the victim has been medically examined and she was found above 18 years and less than 20 years of age, therefore, offence under Section 5(j)(II)/6 of the POCSO Act, is not made out. It is also contended by learned counsel for the applicant that the statement under Section 164 of Cr.P.C. clearly reveals that the victim has gone with the applicant with her own will and she was pregnant at that time and she is having threat from his family members-Shivcharan (respondent No.2), Dheer Singh and Sushil, therefore no offence under Section 376 IPC is made out. The statements under Section 164 Cr.P.C. are the improvement to the FIR and 161 Cr.P.C. statements.

It is submitted by learned counsel for the applicant that the applicant did not commit any offence as alleged by the complainant in the FIR and he is an innocent person; he has falsely been implicated by the complainant in a heinous crime, while he did not commit any alleged offence; he has no criminal history and there is no iota of evidence which proves that the applicant had committed the alleged offence.

Per contra, learned State Counsel contends on the basis of its counter affidavit and supplementary counter affidavit that during the course of the investigation, the recovery of the victim was effected from the possession of the applicant on 14.09.2017 from Police Line Panipat, Haryana and the victim in her statements u/s 161 and 164 Cr.P.C. made specific allegations against the applicant. Learned State Counsel further contends that as per the school leaving certificate, the date of birth of the victim (respondent No.3) is 11.06.2000 and accordingly, on the basis of the statements of victim, medical report of the victim, statement of other witnesses and school leaving certificate of the victim, the Investigating Officer submitted the charge-sheet under the aforementioned Sections. He further submits that Hon’ble Apex Court in catena of judgments hold that in a proceeding under Section 482 Cr.P.C., the High Court will not enter into any finding of facts or hold a parallel trial.

Learned counsel for private respondent submits that prima-facie the offences under Section 376 IPC and under Section 5(j)(II)/6 of the POCSO Act are made out against the applicant, as on the basis of the School Leaving Certificate, the victim was minor aged about 17 years and two months at the time of alleged incident. Applicant is making a futile and baseless attempt to concoct a fig-leaf of defense for his heinous and unconscionable offence under Section 376 of IPC by misleading the fact.

Having heard learned counsel for the parties and having gone through the entire material available on record, it transpires that prima-facie from the FIR, the offences alleged against the applicant, are made out and there are various disputed question of facts. This Court while invoking its inherent jurisdiction under Section 482 of Cr.P.C., cannot go into the disputed question of facts as alleged. In order to make out a case for interference under Section 482 of Cr.P.C., the applicant has to satisfy the Court that even if the entirety of the case of the prosecution has taken as true, no case is made out. But, here this is not a case, therefore, this Court doesn’t incline to interfere into the matter.

Accordingly, the C482 application is dismissed.

Interim order dated 05.04.2018 stands vacated.