Fardeen and Another vs State of U.P. and 3 Others

Neutral Citation No. - 2025:AHC:16166

Court No. - 71

Case :- APPLICATION U/S 482 No. - 31644 of 2024

Applicant :- Fardeen And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Umair Mahmood Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Umair Mahmood, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Raj Kumar Chauhan, the learned counsel representing first informant-opposite party-4, who has put in appearance by filing a short counter affidavit along with his Vakalatnama in Court today, which is taken on record.

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Perused the record.

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Applicant-1 Fardeen is a charge sheeted accused, whereas applicant-2 Samreen Parveen is the wife of applicant-1. Applicants have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-

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"It is, therefore, most respectfully prayed that this Hon'ble Court may most graciously be pleased to allow this application to quash the entire proceedings of session trial no. 2218 of 2023 (State of U.P. Vs. Fardeen) arising out of case crime no. 490 of 2023 under section 363,376 IPC and POCSO act at P.S. Seohara, District- Bijnor, pending in the court of Additional District and session Judge/Special Judge (Pocso act) Bijnor as well as quash the Cognizance order dated 09.10.2023 passed by Additional District and session Judge/Special Judge (Pocso act) Bijnor, arising out of Case Crime no. 0490 of 2023 as well as quash the chargesheet no. 359 of 2023 dated 30.09.2023.

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It is, further, most respectfully prayed that this Hon'ble Court may most graciously be pleased to stay the entire proceedings of session trial no. 2218 of 2023 (State of U.P. Vs. Fardeen) arising out of case crime no. 490 of 2023 under section 363,376 IPC and 4 POCSO act at P.S. Seohara, District- Bijnor, pending in the court of Additional District and session Judge/Special Judge (Pocso act) Bijnor as well as Stay the Cognizance order dated

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09.10.2023 passed by Additional District and session Judge/Special Judge (Pocso act) Bijnor, arising out of Case Crime no. 0490 of 2023 as well as Stay the chargesheet no. 359 of 2023 dated 30.09.2023, during the pendency of Section 482 of Cr.P.C. present application Under before this Hon'ble Court, otherwise the Applicants shall suffer grave irreparable loss and injury.

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And/or pass any other and further order which this Hon'ble Court deem fit and proper in the circumstances of the case."

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Learned counsel for applicants submits that subsequent to the FIR dated 02.09.2023 lodged by first informant-opposite party-4 Mohammad Azmat (brother of the prosecutrix) and giving rise to present criminal proceedings, the prosecutrix solemnized marriage (Nikah) with applicant-1 on 01.12.2023. Consequently, the prosecutrix became the legally wedded wife of applicant-1. By reason of above, the prosecutrix started residing with applicant-1 as his legally wedded wife. Subsequently, the marriage of the parties was registered under the provisions of U.P. Registration of Marriage Rules, 2017. Photo copy of the marriage registration certificate has been brought on reocrd and is at page 6 of the counter affidavit filed by first informant-opposite party-4. In view of the registration of marriage of the parties, there is a legal presumption with regard to the validity and legality of the marriage solemnized by the parties. On the above conspectus, the learned counsel for applicants submits that in view of the subsequent development that have taken place, the criminality, if any, committed by applicant-1 now stands washed of. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant-1. In case, the criminal prosecution of applicant-1 is allowed to continue, a happy family shall stand broken.

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Per contra, the learned A.G.A. representing State-opposite party1 has vehemently opposed the present application. Learned A.G.A. contends that since the prosecutrix is a child within the meaning of the term 'child' as defined in the POCSO Act on the date of occurrence, therefore, the subsequent development, if any, will not wiped out the criminality committed by applicant-1. He, therefore, contends that no indulgence be granted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

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Mr. Raj Kumar Chauhan, the learned counsel representing first

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informant-opposite party-4 Mohamaad Azmat (brother of the prosecutrix) submits that he has received instructions not to oppose the present application. He submits that since the prosecutrix has solemnized marriage with the applicant, therefore, first informantopposite party-4 does not wish to pursue the criminal prosecution of applicant-1.

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Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Raj Kumar Chauhan, the learned counsel representing first informant-opposite party-4 and upon perusal of record, this Court finds that the criminal prosecution of applicant-1 commenced when an FIR dated 02.09.2023, which was lodged by first informant-opposite party-4 Mohammad Azmat (brother of the prosecutrix). However, subsequent to the aforesaid FIR, the prosecutrix solemnized marriage (Nikah) with applicant-1 on 01.12.2023. Consequently, the prosecutrix became the legally wedded wife of applicant-1. By reason of above, the prosecutrix started residing with applicant-1 as his legally wedded wife. The bona-fide of the parties is further evident from the fact that marriage of the parties has been registered under the provisions of U.P. Registration of Marriage Rules, 2017. Photo copy of the marriage registration certificate has been brought on reocrd and is at page 6 of the counter affidavit filed by first informant-opposite party-4. In view of the registration of marriage of the parties, there is a legal presumption regarding validity and legality of the marriage solemnized by the parties. In view of the subsequent development that have taken place, the criminality, if any, committed by applicant-1 now stands washed of. The bona-fide of the parties is further explicit from the fact that the prosecutrix has joined the applicant in present application. The affidavit filed in support of present application has been sworn by the prosecutrix herself. As such, no useful purpose shall be served in prolonging the criminal prosecution of applicant-1. In case, the criminal prosecution of applicant-1 is allowed to continue, a happy family shall stand broken.

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At this stage, reference be made to the judgment of Supreme Court in K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056 , wherein the Apex Court quashed the criminal proceedings on account of subsequent development. The judgment is a short one, therefore, the same is reproduced in it's entirety:-

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"1. Leave granted.

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2. The appellant who is the maternal uncle of the prosecutrix belongs to

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Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily wages in a private factory. FIR was registered against him for committing rape under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal.

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3. Mr. M.P. Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children.

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4. The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

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5. After hearing the matter for some time on 08th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life.

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6. Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him.

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7. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle.

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8. For the aforesaid mentioned reasons, the conviction and sentence of the appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of.

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9. In case, the appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move this Court for modification

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of this Order."

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In view of the discussion made above, the present application succeeds and is liable to be allowed.

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It is, accordingly, allowed.

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The entire proceedings in Sessions Trial No. 2218 of 2023 (State of U.P. Vs. Fardeen), arising out of Case Crime No. 490 of 2023, under Sections 363, 376 IPC and Sections 3/4 POCSO Act, Police Station-Seohara, District-Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), Bijnor are, hereby, quashed.

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In the facts and circumstances of the case, parties shall bear their own costs.

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Order Date :- 5.2.2025 Vinay

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

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

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