In a criminal revision, the Court refused to set aside the lower court's order regarding the prosecutrix's age verification and held the age issue remain contestable during trial without prejudice.
The application was disposed of; the issue of the prosecutrix's age is left open to be contested at the trial stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 64
Case :- CRIMINAL REVISION No. - 1254 of 2022
Revisionist :- Dinesh Gupta Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Rajrshi Gupta,Manish Singh,Sr. Advocate
Counsel for Opposite Party :- G.A.,Chandra Prakash Pandey,Siddharth Singh
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Dileep Kumar, learned Senior Advocate, assisted by Sri Manish Singh, learned counsel for the applicant, Sri Sanjay Singh, learned A.G.A.-I for the State and Sri Siddharth Singh, learned counsel for the informant.
By means of the present revision proceeding, the challenge has been raised to the order dated 11.01.2022 passed by Special Judge (POCSO Act)/Additional Session Judge, Kannauj in Special Session Trial No. 95 of 2019 (State Vs. Dinesh Gupta & others) arising out of Case Crime No. 249 of 2019, under Sections 376, 506 120B IPC read with Section 3/4 POCSO Act, Police Station Saurikh, District Kannauj. .
Principally, the learned Senior Advocate for the applicant would contend, there is no credible evidence led by the prosecution to establish the age of the prosecutrix to be below 18 years. Unless that preliminary fact was first established, no charge may have ever arisen under the POCSO Act. Even the jurisdiction of the Court may vary depending on the correct fact as to the age of prosecutrix.
Having heard the learned counsel for the parties and having perused the record, at present, no defect is noted in the order of the learned court below, insofar as it refuses to take into account the date of birth of the prosecutrix as may have been recorded on different copies of the Adhaar Card. Yet, it is difficult to accept as correct the reasoning arising from the perusal of photo copy of the high school certificate of the proseuctrix. It is beyond doubt that the original certificate ought to have been relied upon. If required proper verification may have been made from the authorities of the U.P. Secondary Education Board, etc.
Yet, no useful purpose would be served in setting aside the order and remitting the matter to the learned court below to decide this issue afresh. It is left open to the prosecution as also
to the applicant to raise appropriate plea at the appropriate stage in the course of the trial such that the issue of the age of the prosecutrix (on the date of occurrence), may remain an issue to be contested at the trial without prejudice being caused by any observations made in the impugned order.
As to the jurisdiction, it is seen no material may arise whether the case is tried by the court presently vested with that jurisdiction or the change as may arise if the submission of the learned Senior Advocate of the applicant were to be accepted.
With the aforesaid observations/directions, this application is disposed of .
Order Date :- 2.1.2023 SA
Digitally signed by :- SALMAN ALI High Court of Judicature at Allahabad
2 issues framed by the court
Whether the High Court should remand the matter to the trial court to establish the prosecutrix's age below 18 years or allow the issue to remain open for trial.
Whether a variance in dates of birth on different Aadhaar cards creates a defect in the trial court's refusal to consider them.
5 provisions across 2 enactments
Dinesh Gupta
State Of U.P.
3 Others
Saumitra Dayal Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
