Monu Nishad vs State of Up and 2 Others

Court No. - 71

Case :- APPLICATION U/S 482 No. - 40206 of 2024

Applicant :- Monu Nishad Opposite Party :- State Of Up And 2 Others Counsel for Applicant :- Arvind Prabodh Dubey,Ashok Kumar Giri

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Arvind Prabodh Dubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anand Vibhor Singh, Advocate, holding brief of Mr. Karunesh Pratap Singh, the learned counsel representing first informant-opposite party-3 who has put in appearance by filing his Vakalatnama in Court today, which is taken on record.

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Perused the record.

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Applicant-Monu Nishad, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following relief:-

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"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the charge-sheet dated 19.04.2024 and entire proceeding of Session Trial No. 721 of 2024 (State Vs. Monu Nishad) arising out of Case Crime No. 16 of 2024, Under Sections- 363, 366, 376 I.P.C., & Section 5/6 POCSO Act, Police Station- Khorabar, District- Gorakhpur. As well as cognizance order dated 30.04.2024.

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It is further prayed that this Hon'ble Court may be graciously be pleased to stay the further proceeding of Session Trial No. 721 of 2024 (State Vs. Monu Nishad) arising out of Case Crime No. 16 of 2024, Under Sections363, 366, 376 I.P.C., & Section 5/6 POCSO Act, Police Station-Khorabar, District- Gorakhpur, pending in the court of Additional Session Judge/Special Judge, POCSO Act, Court No.-1, Gorakhpur, and/or pass such other and further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

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Learned counsel for applicant submits that subsequent to the FIR dated 13.01.2024 giving rise to present criminal proceedings, the prosecutrix has solemnized marriage with the applicant on 12.09.2024. Marriage so solemnized by the parties has also been applied for registration under the provisions of Uttar Pradesh Marriage Registration Rules, 2017. In view of above, prosecutrix

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is now the legally wedded wife of applicant. Consequently, prosecutrix is residing with the applicant as his legally wedded wife. In view of aforesaid subsequent developments the criminality, if any, committed by applicant shall stand washed off. The bona fide of the prosecutrix is further explicit from the fact that she has joined the present applicant in present application and has sworn the applicant filed in support of this application. On the above conspectus, the learned counsel for applicant submits that no useful purpose shall be served in prolonging the criminal prosecution of applicant. In case the criminal prosecution of applicant is allowed to continue, then a happy family shall stand broken. It is thus urged by the learned counsel for applicant that present application is liable to be allowed.

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Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant opposite party-3 have vehemently opposed the present application. He submits that since the prosecutrix was a child within the meaning of the terms child as defined in the POCSO Act, therefore, in view of above, the criminality if any, committed by applicant against minor shall not get wiped out on account of the subsequent developments as submitted by the learned counsel for applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

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Mr. Karunesh Pratap Singh, the learned counsel representing first informant-opposite party-3 has however opposed this application and has adopted the submissions urged by the learned A.G.A. as noted herein-above. He, however, submits that it is now an admitted fact that the prosecutrix has solemnized marriage with applicant and she is now residing with the applicant as his legally wedded wife.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant opposite party-3 and upon perusal of record this Court finds that subsequent to the FIR dated 13.01.2024 lodged by first informant/opposite party-3 was solemnized marriage with the accused applicant. As such, on date, the prosecutrix is legally wedded wife of applicant. Consequently, she is residing with the applicant at his legally wedded wife. In view of aforesaid subsequent developments the criminality, if any, committed by applicant shall stands washed off. The bona fide of the prosecutrix is further explicit from the fact that she has joined the applicant in present application and has sworn the applicant filed in support of this application. The parties have also applied for registration of

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the marriage in terms of the U.P. Registration of Marriage Rules, 2017. Photocopy of the relevant documents regarding above are on record from page 99-102 of the paper book. In view of above subsequent developments the criminality if any, committed by the applicant now stands washed off. As such, no good ground exists to prolong the criminal prosecution of applicant. In case, the criminal prosecution of accused applicant is allowed to continue, then a happy family shall stand broken.

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At this juncture, reference be made to the judgment of the Supreme Court in K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056, since 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 Valayar community, which is a most backward community in the State of Tamilnadu. He worksas a woodcutter on daily wages in a private factory. FIR was registered against him forcommitting 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. 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

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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 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 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 of Session Trial No. 721 of 2024 (State Vs. Monu Nishad) arising out of Case Crime No. 16 of 2024, Under Sections 363, 366, 376 I.P.C., & Section 5/6 POCSO Act, Police Station- Khorabar, District- Gorakhpur now pending in the Court of Additional Session Judge/Special Judge, POCSO Act, Court No.-1, Gorakhpur are, hereby, quashed.

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Parties shall bear their own cost.

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Order Date :- 10.1.2025 Imtiyaz

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Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad

Monu Nishad v. State of Up and 2 Others

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Monu Nishad v. State of Up and 2 Others

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