Dismissed

Shyamu Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and Others

Allahabad HC20 Sept 2024/8448/2024

Case brief

AI extract

What is this about?

The Allahabad High Court held an Application under Section 482 CrPC filed by an accused, challenging the rejection of his Section 216 application. The matter involved a POCSO-related case where the victim's age was contested. The Court found force in the prosecution's submission that mens rea and applicability of POCSO are subject to trial evidence and dismissed the application.

What did the court decide?

The application challenging the rejection of Section 216 CrPC application was dismissed; no order as to costs.

Shyamu Rawat Vs State of U.P. Thru. Prin… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:65224

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Court No. - 13

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Case :- APPLICATION U/S 482 No. - 8448 of 2024

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Applicant :- Shyamu Rawat Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others Counsel for Applicant :- Pradyumn Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard.

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By means of present application, the applicant namely Shyamu Rawat has assailed the order dated 15.06.2024 passed by the Additional Session Judge, Court No. 12/POCSO CourtFirst, Unnao, (in short "trial Court") in Special Session Trial No. 161 of 2014 (State vs. Shyamu and Others).

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Vide order dated 15.06.2024, under challenge, the trial Court rejected the application No. 29-Ka preferred by the applicant under Section 216 CrPC. This application is annexed at page No. 46 of the paper book and being relevant, the same is extracted hereinunder:-

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" ा् ቕ नाप錒� 碚 चा瞤旯 � प尮岂 बह動े 䃟 हत㝂े 㝸 प㝂㝸 नⷡ ᯥ स㝂㝸 नवायी ्ቚ ्ቚ U/S 216 Cr.P.C. ी मान瞤旯ी ्ቦ ,

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निनवेदनह剜䄤नि�उप尮岂ो㛄ᰲवादमं१ बनेह㝂㝸ये चा瞤旯��ानून�ेदाय尮岂े सेबाह尮岂ह剜䄤胣碴瞤旯ोनि�निनयमान㝂㝸सा尮岂चा瞤旯�सही नही 胣碴

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अतⷡᯥ निनवेदनह剜䄤नि�्ቦ ी मान瞤旯ी न्याय�ेनिहतमं१आ動䃟यसे पूव�प錒碚ावली प尮岂चा瞤旯�प尮岂बहे動䃟स㝂㝸नने�⓽⸳�ृपा�尮岂े胣碴

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महानदयाहोगी 胣碴 निदनां�- 27/2/24 ्ቚा्ቕ*

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The application dated 27.02.2024, quoted above, was preferred with the prayer to re-hear the accused on framing of charge. Further, it reflects from this application that the same is completely vague and no reason has been assigned in connection with Section 216 CrPC.

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The other relevant facts, which appear from the record, are to the effect that on 21.03.2012 a missing report in regard to victim was lodged by the opposite party No. 2, which was entered as G.D. No. 31 on 25.03.2012 at about 15:10 hours.

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During investigation, the victim was recovered from Meerut and after recovery, an FIR, registered as Case Crime No. 1056 of 2014, was lodged on 07.08.2024, under Section 363, 366, 368, 109, 120-B, 376 IPC against the applicant and one Sapna. Thereafter, statement(s) of victim were recorded under Section in terms of Section 161 and 164 CrPC.

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The victim in her statement recorded under Section 164 CrPC levelled specific allegations against the applicant regarding committing of rape as also that she was sold by Sapna @ Guddi to Pappu and Meera and thereafter, sold to Dropadi by Pappu and Meera and Dropadi left her in the room of one Munni.

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Thereafter, the charge sheet was filed against Shyamu S/o Manohar, Sapna @ Guddi D/o Pancham, Munni Devi D/o Ram Swaroop and all these accused are facing trial.

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During investigation, the victim was medically examined and as per opinion of the Doctor, the victim was aged about 19 year old on 20.08.2014. Thus, at the time of incident i.e. on 21.03.2012, the victim was minor.

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It would be apt to mention that date of committing the crime i.e. rape is not available on record.

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The Investigating Officer during investigation collected Transfer Certificate of Class 5 issued by Prathmik Vidyalaya, Chilaula, Unnao and according to this Certificate, the victim was born on 12.07.1994. From the Scholar's Register & Transfer Certificate of Class 9th of victim issued by Mewalal Siyaram Inter College, Banbhanakhera Mohan, Unnao, it appears that the victim was born on 04.08.1997. Both the date of births i.e. 12.07.1994 and 04.08.1997 indicate that at the relevant point of time, the victim was minor.

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The dispute related to date of birth of victim is subject matter of trial and the same cannot be taken note of by the trial Court as also by this Court while dealing with the matters related to Section 216 CrPC.

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In the aforesaid background of the case, the present application has been filed by the applicant before this Court challenging the order dated 15.06.2024, whereby, the application preferred by the applicant under Section 216 CrPC has been rejected.

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Impeaching the order impugned dated 15.06.2024, learned counsel for the applicant stated that while rejecting the application preferred by the applicant under Section 216 CrPC the trial Court has not considered the relevant material available on record as also the law on the issue.

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In continuation, it is stated that as per date of birth of victim mentioned in Transfer Certificate of Class-V, she was 17 years, 8 months old, however, a wrong finding has been given by the trial Court in this regard in the order impugned dated 15.06.2024.

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It is further stated that Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act") came into force w.e.f. 14.11.2012, as such, offences indicated under the POCSO Act would not be attracted in the instant case. It is for the reason that a missing report of victim was lodged on 25.03.2012 and at that point of time, neither the POCSO Act was enforced nor the assent of President was given, as the same was given on 19.06.2012. Thus, interference of this Court is required in the matter.

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Learned AGA opposed the present application. His submissions can be summarized as under:-

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(i) Indisputedly, the victim, at the time of commission of offence or lodging of missing report, was minor, even if her date of birth i.e. 12.07.1994 indicated in school leaving certificate of Class-V of Primary School, Chilaula, Unnoa is given primacy.

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(ii) No doubt, the POCSO Act came into force w.e.f. 14.11.2012, however, the fact remains that as to when actual

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offence attracting Section 376 IPC was committed is not apparent from the record and it is subject matter of trial and if the victim indicates that offence was committed with her after enforcement of POCSO Act, then all the offences would be attracted against the applicant.

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(iii) The FIR in issue was lodged on 07.08.2014 and the missing report is of 21.03.2012 and if the crime/rape was committed by the applicant in between after of enforcement of POCSO Act i.e. 14.11.2012 then POCSO Act would be attracted against the applicant and all these aspects are subject to evidence adduced by the parties before the trial court.

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(iv) The application under Section 216 Cr.P.C. amounts to seeking discharge from the offences indicated under POCSO Act, which itself was not maintainable.

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Considered the aforesaid and perused the record.

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Upon due consideration of aforesaid, this Court finds force in the submissions made by the learned AGA and accordingly , this Court is not inclined to interfere in the matter.

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The instant application is dismissed accordingly. No order as to costs.

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Order Date :- 20.9.2024

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Vinay/-

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Shyamu Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and Others

Case brief

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Shyamu Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and Others

Case brief

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What did the court decide?

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