Allowed

Sanjay @ Ratnesh Nishad v. State of U.P. and Another

Allahabad HC30 Jan 2023A482/690/2023

Case brief

AI extract

What is this about?

The Court, applying guidelines from the Hussainara Kassab judgment (referenced as Suhani), quashed proceedings under Sections 363, 366, 376 IPC and POCSO Act. It found the victim was a minor at the time but now major, and they are living as husband and wife. The applicant and victim are directed to register their marriage within a month.

What did the court decide?

Proceedings under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, and the cognizance order dated 15.09.2022 are quashed. Applicant directed to register marriage with victim within one month.

Sanjay @ Ratnesh Nishad Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2023)

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Court No. - 67

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Case :- APPLICATION U/S 482 No. - 690 of 2023

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Applicant :- Sanjay @ Ratnesh Nishad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Dwivedi Counsel for Opposite Party :- G.A.,Ankit Singh

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Hon'ble Rahul Chaturvedi,J.

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On the earlier occasion, Ms. Tanu Upadhyay, C.O., Bhognipur, Kanpur Dehat was present and she was directed to organize the ossification test of the victim revealing the expected/ approximate age of the victim on the date of the incident.

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Today, Ms. Suman, I.O. of the case of P.S. Bhognipur, District Kanpur Dehat is present along with sealed cover letter. After opening the sealed cover letter, it was found that CMO, Kanpur Dehat after conducting the ossification test of the victim on 25.01.2023 has mentioned that on the date of incident i.e. 20.04.2022, she was aged about 17 years and 8 months and present she seems to be 18 years. Though she has disclosed her age as 19 years. In any case of the matter she is now major girl who have just crossed the age of majority and exercising her discretion got married with applicant Sanjay @ Ratnesh Nishad.

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When she was produced before this court by means of Crl. Misc. Writ Petition No. 4735 of 2022 and the Diision Bench of this Court has asked her, she stated that, both of them have got married and residing as happily married couple. On the other hand, interestingly without conducting any ossification test of victim, the police on its own has pasted Section 3/4 POCSO Act and today's ossification test report clearly belies the pasting provision of POCSO Act.

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Learned counsel for the applicant has drawn the attention of the Court to Annexure- 10 to the affidavit accompanying the application, which is an affidavit signed by victim herself and her mother in which in paragraph 2 of the affidavit she said that nobody has enticed her away but on the contrary on her own she has joined the company of the applicant and the FIR was lodged against the applicant and family members on account of certain misgiving and provocation made by some co-villagers. Even today, both of them are residing as husband and wife.

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Sri Saurabh Tripathi, Advocate holding brief of Sri Ankit Singh, learned

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counsel for the opposite party no.2 affirms the covenant of affidavit and reiterating that both of them are residing as husband and wife, though the marriage has not been registered, which is mandatory requirement for any marriage.

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In addition to this, in her statement under Section 164 Cr.P.C. she accused her own parents that they are planning to get her marriage with some elderly person and on her own she has decided to join the company of the applicant and got married with the applicant. She further states that she is in immense threat from her own parent on account of aforesaid reason.

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Taking into account the totality of the circumstances and the facts that no case under Section POCSO Act is being made out against the applicant and parties are started living as husband and wife.

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In view of the above and taking the guidelines of the judgement of Hon'ble Apex Court in the case of Suhani and another Vs. State of U.P. and others decided on 26.04.2018, in Civil Appeal 4532 of 2018, the proceeding of charge sheet dated 29.07.2022 under Section 363, 366, 376 IPC and Section 3/4 POCSO Act, arising out of case crime no. 152 of 2022, P.S. Bhoginpur, District Kanpur Dehat and cognizance order dated 15.09.2022 is hereby quashed with a clear direction that applicant and victim must get their marriage registered within a month from today positively.

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The present 482 Cr.P.C. application is hereby allowed.

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The presence of Ms. Suman, I.O. of the case is exempted until further orders.

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Order Date :- 30.1.2023 Abhishek Sri.

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Digitally signed by :- ABHISHEK RANJAN SRIVASTAVA High Court of Judicature at Allahabad

Sanjay @ Ratnesh Nishad v. State of U.P. and Another

Case brief

What is this about?

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Sanjay @ Ratnesh Nishad v. State of U.P. and Another

Case brief

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What did the court decide?

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