Ankit Mishra Vs State of Up and 3 Others

Neutral Citation No. - 2025:AHC:26824

Court No. - 71

Case :- APPLICATION U/S 482 No. - 37962 of 2024

Applicant :- Ankit Mishra Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Sanjeev Kumar Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Sanjeev Kumar Sharma, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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At the very outset, the learned A.G.A. submits that notice of this application under Section 482 Cr.P.C. has been served upon first informant-opposite party-2 on 09.11.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 nor any one has put in appearance on his behalf to oppose this application, even in revised call.

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Applicant-Ankit Mishra, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C.:-

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"It is therefore most respectfully prayed that this Hon'ble Court may be pleased to allow this application and quash the order dated 16-08-2024 arising out of case Crime no. 0407 of 2023 under Section 363, 366, 376 AB, I.P.C. & 5 M/6 Pocso Act police station-Bithoor District -Kanpur Nagar (State V/s Ankit Mishra) in Session Trial No. 130 of 2024 and further may be pleased to Stay the further proceeding of Session Trial no. 130 of 2024 'State V/s Ankit Mishra' arising out of case Crime no. 0407 of 2023 under Section -363, 366, 376 AB, I.P.C. & 5 M/6 Pocso Act police station -Bithoor District-Kanpur Nagar which is pending before the learned Additional District Judge Court no. 22 Kanpur Nagar, And / or pass such other and further order under the facts and circumstances of this Hon'ble Court during the pendency of present case."

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On the matter being taken up, the Court raised a pointed query as to whether charges have been framed against accused-applicant by Court below in exercise of jurisdiction under Section 228 Cr.P.C. or not.

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Learned counsel for applicant could not answer the said query

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with reference to the record. By means of order impugned dated 16.08.2024, Court below has rejected the application (Paper No. 13-Kha) filed by applicant for getting the age of the prosecutrix determined medically.

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Perusal of the order impugned will go to show that Court below has rejected the said application primarily on two grounds. Firstly, the age of prosecutrix can be determined in accordance with the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (herein after referred to as the Act of 2015) but only after evidence has been adduced by the parties and secondly, since there is educational certificate of the prosecutrix available on record, therefore, no occasion arises to get the age of prosecutrix determined medically.

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Since the controversy involved in present application is referable to Section 94 of the Act of 2015, therefore, for ready reference, Section 94 of the Act of 2015 is reproduced herein below:-

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" Section 94 - Presumption and determination of age-

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(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

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According to the learned counsel for applicant, as per the scheme of Section 94 of the Act of 2015, the provisions contained in Sections 94(2)(i), 94(2)(ii) and 94(2)(iii) of the Act of 2015, apply in a preferential manner. Meaning thereby, that Court has to first determine the age of the child in accordance with the terms of Section 94(2)(i) of the Act of 2015. In case, the documents mentioned in Section 94(2)(i) of the Act of 2015 are not available then the Court shall proceed to consider the age of child in the light of the provisions contained Section 94(2)(ii) of the Act of 2015. Only when none of the documents, enumerated under Sections 94(2)(i) and 94(2)(ii) of the Act of 2015, are available, Court shall proceed to get the age of child determined medically under Section 94(2)(iii) of the Act of 2015.

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Primarily the accused can be charged under any of the provisions of the POCSO Act provided the prosecutrix was below the age of 18 years on the date of occurrence. In the submission of the learned counsel for applicant, no such finding has been returned by Court below. Court below has rejected the application filed by accused-applicant on the basis of a vague finding. The order impugned is, therefore, not only illegal but also perverse. Consequently, the same is liable to be quashed by this Court.

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Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submits that the trial of accused has not yet commenced. Parties shall be at liberty to lead evidence in proof of their respective case/defence. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this application with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that in order to proceed against an accused under the provisions of POCSO Act, the Court is mandatorily required to fix the age of prosecutrix as on the date of occurrence. The said determination can be made only with reference to the provisions contained in Section 94 of the Act of 2015 as already noted above. The provisions contained in Sections 94(2)(i), 94(2)(ii) and 94(2) (iii) of the Act of 2015, apply in a preferential manner. No finding

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has been returned by Court below in the order impugned with reference to the aforesaid scheme of the Act of 2015. As such, the order impugned cannot be sustained and therefore, liable to be quashed by this Court.

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In view of the discussion made above, the present application under Section 482 Cr.P.C. succeeds and is liable to be allowed.

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It is, accordingly, allowed.

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The order impugned dated 16.08.2024 passed by Additional Special Judge, POCSO Act/Additional Sessions Judge, Court No. 22, Kanpur Nagar in Sessions Trial No. 130 of 2024 (State Vs. Ankit Mishra), arising out of Case Crime No. 0407 of 2023, under Sections 363, 366, 376 (AB) IPC and Sections 5M/6 of POCSO Act, Police Station-Bithoor, District-Kanpur Nagar are, hereby, quashed.

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The matter shall stand remitted to Court below for passing fresh order regarding age of the prosecutrix on the date of occurrence in accordance with law. The necessary exercise shall be undertaken by Court below within a period of one month from the date of presentation of a certified copy of this order.

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Order Date :- 24.2.2025 Vinay

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

Ankit Mishra v. State of Up and 3 Others

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