Dismissed

Haseen and Another v. State of U.P. and 3 Others

Allahabad HC16 Aug 2023A482/16118/2023

Case brief

AI extract

What is this about?

The High Court dismissed the applicant's Section 482 CrPC appeal challenging the trial court's order rejecting an application to subtract a POCSO charge. The court held that disputes over the victim's age, often reliant on subsequent evidence, must be adjudicated during the trial, and the High Court should not interfere with the trial court's decision on charge-framing matters under Section 216 Cr

What did the court decide?

Application under Section 482 CrPC dismissed with no order as to costs.

Haseen and Another Vs State of U.P. and 3 Others — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:164999

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 16118 of 2023

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Applicant :- Haseen And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Akash Tomar Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicants as well as learned AGA.

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Applicants have invoked inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 01.04.2023 passed by Additional Sessions Judge/ Special Judge, POCSO Act rejecting the application No. 22-B dated 08.12.2022 filed on behalf of accused applicants in S.T. No. 690 of 2022 arising out of Case Crime No. 76 of 2022 under Section 376D, 120B, 354, 354-C, 341, 504 and 506 IPC and Section 5G/6 read with Section 15 of Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(5) of SC/ST Act and Section 67-B of Information Technology Act, 2000, Police Station Bhawanpur, District Meerut.

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Opposite Party No. 2 has filed an FIR, being Case Crime No. 0076 of 2022 dated 04.03.2022, levelling allegation of forceful sexual assault against the present applicants upon his minor sister aged about 15 years and making the objectionable video of such incident. It has also been averred in the FIR that they have made the aforesaid objectionable video viral which significantly caused damage to the reputation of the victim and her family.

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Considering the chargesheet and material on record, learned trial court has framed as many as 10 charges against the present applicants, vide order dated 16.09.2022, in presence of the accused. After framing of charges, at the time of prosecution evidence, present applicants(accused) have shown their grievance with the Charge No. 7 which has been framed indicting them under Section 5G/6 read with Section 15 of POCSO Act, thus, they have moved an application dated 18.12.2022 (Paper No. 22B) under Section

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216 CrPC for subtraction of charge under the POCSO Act on the ground that at the time of incident victim was major which is evident from the voter list of panchayat election 2021, pertains to Panchayat Rasulpur, Aurangabad wherein at Serial No. 288 Page No. 3, age of the victim has been shown to be 28 years; that even in the family register her year of birth has been shown to be 1996; that in the computerized ration card her date of birth has been shown to be 01.01.1996; that in primary school recorded date of birth of victim has been shown to be 18.12.1999, however, in collusion with the Principal of C.R.K. Public School, investigating officer has taken the transfer certificate wherein date of birth of victim has been shown to be 24.06.2004.

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Prosecution has filed objection (Paper No. 29B) alleging therein that application dated 08.12.2022 has been filed on false averments; that learned court has framed the charges after going through chargesheet and the material available on record which clearly shows the victim to be minor; that the ration card, family register and voter list of panchayat election are not the relevant documents in determining the age of the victim.

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Learned trial court, vide order impugned dated 01.04.203, has rejected the application with an observation that prosecution has to prove the age of the victim to be minor, therefore, at this stage same cannot be scrutinized. Having been aggrieved, accused have filed the instant application assailing the rejection order dated 01.04.2023.

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Learned counsel for the applicants submits that the transfer certificate issued by the Principal of C.R.K. Public School is a forged one inasmuch as victim had never studied in said school and same has been procured in collusion with the Principal and the Investigating Officer. It is further submitted that surprisingly transfer certicate dated 06.03.2022 has been taken by the investigating officer on record on 05.03.2022 which creates doubt qua genuineness of the said certificate. It is further submitted that several documents have been filed by the applicants before the learned trial court to show that the victim was major at the time of alleged incident. Therefore indicting the present applicants for offence under the POCSO Act is not justifiable in the eyes of law and, accordingly, Charge No. 7 framed

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against the present applicants under Section 5 G/6 read with Section 15 of the POCSO act may be subtracted. It is further submitted that in the Age Certificate issued by the Chief Medical Officer, Meerut, the age of the victim has been shown to be 25 years. Therefore, in absence of the documents as required under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in brevity J.J. Act), learned trial court has no option but to believe the medical certificate/age certificate issued by the Chief Medical Officer. In support of his submission, learned counsel for the applicants has relied upon the following judgments:

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I. P. Yuvaprakash Vs. State Rep. by Inspector of Police in Criminal Appeal Nos. 1898 of 2023 decided by Hon'ble Supreme Court vide judgment dated 18.07.2023.

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II. Jagtar Singh Vs. State of Punjab decided by Hon'ble Supreme Court reported at AIR 1993 SC 2448 .

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III. Babloo Pasi Vs. State of Jharkhand and Ors. decided by Hon'ble Supreme Court reported at (2008) 13 SCC 133 .

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IV. Sushil Kumar Vs. Rakesh Kumar decided by Hon'ble Supreme Court reported at (2003) 8 SCC 673 .

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V. Anant Prakash Sinha Vs. State of Haryana and Ors. reported at (2016) 6 SCC 105 .

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VI. Bunch of cases leading Criminal Misc. Bail Application No. 55026 of 2021 (Monish Vs. State of U.P. and 3 Others) decided by a coordinate Bench of this Court vide order dated 09.02.2023.

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Per contra, learned AGA has vehemently opposed the submissions as raised by learned counsel for the applicants and contended that in the transfer certificate, which was considered at the time of framing of charges, age of the victim has been shown to be 14.06.2004 and she was admitted in school on 01.07.2009 for the academic session 2009-10. It is further contended that in the Aadhar Card age of the victim has been shown to be 10.6.2005 and date of birth of the informant is shown to be 9.07.1999. It is further contended that there are several contradictions with respect to the date of birth of the victim which can be adjudicated by the trial court more appropriately after scrutinizing the

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evidence on record. It is further contended that evidence adduced on behalf of the present applicants at subsequent stage cannot be treated to be relevant for the purposes of subtracting the charges under Section 216 CrPC. It is next contended that considering the chargesheet and material on record, prima facie, the applicability of POCSO Act cannot be ruled out. Any defence put on behalf of the accused (applicants) can appropriately be considered at the relevant stage of trial. It is next contended that, at this juncture, no case is made out to warrant the indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC to quash the order impugned and subtract or addition of charges framed by court. As such, instant application is liable to be rejected being misconceived and devoid of merits. There is no illegality, perversity or irregularity in the order under challenge.

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Having considered the rival submissions advanced by learned counsel for the applicants as well as learned AGA and perusal of record it reveals that after framing of charges, vide order dated 16.09.2022, present applicants (accused) have moved an application dated 18.10.2022 (Paper No. 22B) under Section 216 Cr PC for subtraction of Charge No. 7 pertaining to commission of offence under Section 5G/6 read with Section 15 of the POCSO Act. As submitted by learned counsel for the applicants and in view of the averment made in the counter affidavit as well there are contradictory documents showing the different date and year qua age of the victim. Correct age of the victim is essential to indict the accused (applicants herein) for the commission of offence under the POCSO Act. Learned trial court has rejected the application under Section 216 Cr PC with an observation that the correct age of the victim is still to be adjudicated upon after scrutinizing the evidence on record. It is further observed that it is the pious duty of the prosecution to make out a case of commission of offence for which accused has been charged and, in case, prosecution fails to prove the charge, the benefit will go in favour of the accused. Learned trial court has further observed that as to whether case under Section 5G/6 read with Section 15 of POCSO Act is made out or not is a subject matter of evidence which has to be proved by the prosecution and the

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same is still to be adjudicated upon after appraising the evidence on record. After due investigation, investigating officer has submitted the charge sheet dated 1.05.2022 along with the supporting material which has appropriately been considered by the trial court, while framing the charges, considering it, prima facie, sufficient for complicity of the present applicants in commission of crime as averred in the chargesheet. Age certificate/ossification report issured by Chief Medical Officer, Meerut is dated 7.02.2023 which is subsequent to the submission of chargesheet dated 1.05.2022 and the framing of charges vide order dated 16.09.2022. The correctness of ossification report is still to be examined and the evidence of the Chief Medical Officer is yet to come to prove the genuineness of the age certificate/ossification report. There is nothing on the record to prove that the other documents, which are referred by the applicants in their application, were available on the record at the time of framing of charges vide order dated 16.09.2022. At later stage, applicants/accused cannot be permitted to move an application for subtraction or addition of charges on the basis of the documents filed at subsequent stage which is a matter of evidence and same shall be considered at the relevant stage of trial.

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All the judgments as cited by learned counsel for the applicants in support of his submissions are distinguishable on the facts and circumstances as given in the present matter. Cases of P. Yuvaprakash(supra), Jagtar Singh(supra), Babloo Pasi(supra), Sushil Kumar(supra) decided by Hon'ble Apex Court are arisen from culmination of the full fledged trial wherein Hon’ble Supreme Court has pointed out some discrepancies in appreciation of the evidence in determining the age of victim. So far as the case of Anant Prakash Sinha(supra) is concerned, the order under Section 216 CrPC has been passed for framing of additional charge under section 406 IPC on the basis of evidence which were already on record at the time of framing of charges, however, same were left to be considered by the Magistrate concerned. Nothing has been expounded by Hon’ble Supreme Court that charges could be subtracted or additional charges could be framed on the

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basis of the subsequent evidences adduced on behalf of the parties after framing of charges. So far as case of Monish (supra) is concerned, co-ordinate Bench of this Court has passed order dated 09.02.2023 in the Bail Application considering the scope of bail in the POCSO Act wherein scope under Section 94 of the J.J. Act has also been considered. In this view of the matter all the cases, discussed above, as relied upon by the learned counsel for the applicants are not adequate to substantiate the submissions made by him. The dictum of the Hon’ble Supreme Court in aforesaid matters are not applicable, at this stage, in the given circumstances of the present matter.

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Trial court has ample power to alter or add any charge at any time before the judgment is pronounced, under the provisions of law as enunciated under Section 216 CrPC. It is the personal satisfaction of the Court concerned, which is conducting the trial, with respect to the alteration, subtraction or addition of the charges, in case, at any stage of trial it thinks it proper to do so, in exercise of power under Section 216 CrPC. After framing of charges, while the trial is going on, accused has got no locus to get the charges altered or addition of new charges on the basis of the evidence which has been filed subsequently by moving an application under Section 216 CrPC. Even otherwise, once the application under Section 216 CrPC has been rejected by the trial court after going through the merits of the case and evidence on record, it would not be befitting for this Court to interfere in said order passed under Section 216 CrPC, inasmuch as this Court in exercise of inherent jurisdiction under Section 482 CrPC is not expected to conduct a mini trial to examine the legality and validity of the charges framed by the trial court.

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Accused/applicants herein have still an opportunity to defend their case before the trial court and the evidence which have been filed by the present applicants to prove the age of the victim to be major at the time of occurrence of crime can be scrutinized by the learned trial court more properly at the relevant stage of trial and will take decision, according, under Section 216 CrPC, if required.

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In this conspectus as above, I do not find any justifiable ground to interfere in the order impugned dated 1.04.2023, passed by the learned trial court rejecting the application under Section 216 CrPC, in exercise of inherent jurisdiction under Section 482 CrPC. Nothing has been demonstrated qua abuse of process of court while framing the charges vide order dated 16.09.2022. No justifiable ground is made out to interfere in the present matter in order to secure the ends of justice. Nothing has been demonstrated by the applicants as to how they are prejudiced, or if there is any likelihood of causing miscarriage of justice, owing to the order impugned. Opportunity is still open to the present applicants to defend their case qua occurrence of crime under the POCSO Act in reply to the Charge No. 7 framed vide order dated 16.09.2022.

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Resultantly, instant application under Section 482 Cr PC, being misconceived and devoid on merits, is dismissed with no order as to the costs.

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Order Date :- 16.8.2023

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Vandit

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Digitally signed by :- VANDIT AGRAWAL High Court of Judicature at Allahabad

Haseen and Another v. State of U.P. and 3 Others

Case brief

What is this about?

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Haseen and Another v. State of U.P. and 3 Others

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