The High Court dismissed an application seeking quashing of an order rejecting a discharge plea. The court held that despite arguments that the victim's age was 19 years, evidence indicated the victim was below 18 years at the time of the incident, making an offence under POCSO Act made out.
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Court No. - 87
Case :- APPLICATION U/S 482 No. - 11736 of 2022
Applicant :- Jishan And 5 Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Virendra Singh Chauhan,Avinash Singh Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
As per office report dated 18.06.2022, notice issued to opposite party no.2 pursuant to the order dated 23.05.2022 has been served upon him but in spite of service of notice, none appeared on behalf of opposite party no.2.
Heard Sri Virendra Singh Chauhan, learned counsel for the applicants and Sri Tanay Kumar, learned AGA for the State.
By way of present application, applicants made a prayer to quash the order dated 28.03.2022 passed by Additional Session Judge/Special Judge (POCSO Act), Court No.2, Muzaffar Nagar in S.T. No. 1115/9 of 2020 arising out of Case Crime No. 94 of 2020, under Sections 147, 148, 323, 354(kha) IPC, 3(1) (x), 3(2)(va) of SC/ST Act, Police Station Ratanpuri, District Muzaffar Nagar pending in the court of Additional Session Judge/Special Judge (POCSO Act), Court No.2, Muzaffar Nagar.
Learned counsel for the applicants submitted that applicants challenged the order dated 28.03.2022 only on the ground that from the perusal of the evidence available on record, no offence under the provisions of POCSO Act is made out as, age of the victim is more than 18 years. He next submitted that in the FIR age of the victim is mentioned as 19 years and as per the medical certificate issued by CMO concerned also her age is about 19 years. He next submitted that as per the school certificate her date of birth is 08.02.2002 and according to the certificate issued by Principal of the school her age was more than 18 years at the time of incident. He next submitted that court below failed to consider these important aspect in respect of age of the victim, therefore, committed illegality while rejecting the discharge application of the applicants.
Per contra, learned AGA submitted that victim in her statement recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. stated that her age is around 16 years and further school certificate issued by Principal is not a conclusive evidence regarding the age of
the victim for the purpose of discharge and it can only be properly ascertained at the time of trial. He next submitted that even as per counsel for applicant offences in respect of SC/ST Act and Indian Penal Code are made out against the applicants, therefore, there is no justification to discharge the applicants in the present matter.
I have heard both the parties and perused the record of the case.
Record shows that charge-sheet has been filed against the applicants under Sections 147, 148, 323, 354(kha) IPC, 3(1)(x), 3(2)(va) of SC/ST Act and they moved an application for their discharge but their discharge application was dismissed by the court below on 28.03.2022 and applicants challenged the order dated 28.03.2022 in the instant application. The only argument advanced by learned counsel for the applicants before this Court is that from the perusal of the record of the case at least no offence under the provisions of POCSO Act is made out against the applicants, however, he conceded that offences in respect of provisions of Indian Penal Code and SC/ST Act are made out against the applicants. He next submitted that as age of the victim as per FIR is about 19 years and as per medical certificate issued by CMO concerned her age was also found 19 years and as per school certificate issued by Principal her age on the date of incident was more than 18 years, therefore, offence under Section 7/8 POCSO Act is not made out.
From the perusal of impugned order it reflects that the radiological age of victim is about 19 years but merely on the basis of medical certificate the age of victim cannot be said to be more than 18 years, as it is only an opinion. Further, on the basis of the age mentioned in FIR no benefit can be extended in favour of applicants as age mentioned in the FIR is an estimated age. From the perusal of impugned order it further reflects that as per educational documents of victim her date of birth is 05.04.2004 and as date of incident is 27.06.2020, therefore, as per her educational record she was below 18 years at the time of incident. The certificate issued by Principal of the school will not help the applicants as the age mentioned in it apparently appears to be incorrect. Therefore, from the above discussion, it cannot be said that no offence under Section 7/8 POCSO Act is made out against the applicants, therefore, discharge application moved by the applicants was rightly dismissed by the court below.
Accordingly, the present application is dismissed .
Order Date :- 31.8.2022 AK Pandey
Digitally signed by ANUPAM KUMAR PANDEY Date: 2022.09.03 13:26:48 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether an offence under Section 7/8 POCSO Act is made out given the age of the victim as per various documents.
Whether the discharge application filed by the applicants is maintainable on the ground that no offence under POCSO Act is made out.
Jishan And 5 Others
State Of U.P
Sameer Jain
Anupam Kumar Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
