Allahabad High Court
Anas @ Bablu And 4 Others vs State Of U.P. And Another on 9 January, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:6059 Court No. - 71 Case :- APPLICATION U/S 482 No. - 37963 of 2024 Applicant :- Anas @ Bablu And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Darwari Lal Counsel for Opposite Party :- G.A.,Shyam Babu Patel Hon'ble Rajeev Misra,J.
1. Heard Mr. Darwari Lal, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. O. P. vishwakarma, Advocate holding brief of Mr. Shyam Babu Patel, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. Applicants-Anas @ Bablu And 4 Others, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:
” It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow this application and quash the order dated 11.09.2024 passed by Special Judge (POCSO Act) Court no. 3/Additional Sessions Judge, Bareilly on the basis of compromise in Special Case no. 235/2023 (State Vs. Anas @ Bablu & others) arising out of Case Crime no. 61 of 2019 Under section 363, 366, 376 I.P.C. & 3/4 POCSO Act against the applicant no.1 and under section 363, 366 I.P.C. against the applicant no. 2 to 5, Police Station- Bithari Chainpur, District-Bareilly, Pending before Special Judge (POCSO Act)-3, District Bareilly.
It is further prayed that this Hon’ble court may kindly be pleased to stay the Entire/further proceeding of Special Case no. 235/2023 (State Vs. Anas @ Bablu &others) arising out of Case Crime no. 61 of 2019 Under section 363, 366, 376 I.P.C. & 3/4 POCSO Act against the applicant no.1 and under section 363, 366 I.P.C. against the applicant no. 2 to 5, Police Station-Bithari Chainpur, District-Bareilly, Pending before Special Judge (POCSO Act)-3, District Bareilly, during the pendency of the aforesaid application before this Hon’ble court, and/or pass such other and further order which this Hon’ble Court may deem fit and proper under the circumstances of the case, Otherwise the Applicants shall suffer irreparable loss and injury.”
4. Learned counsel for applicants submits that subsequent to the F.I.R. dated 07.03.2019 lodged by first informant/opposite party-2 and giving rise to present criminal proceedings, the prosecutrix has solemnized marriage with applicant-1. Resultantly, the prosecutrix is now the legally wedded wife of applicant-1. Consequently, the prosecutrix is residing with applicant-1 as his legally wedded wife. It is then contended by the learned counsel for applicants that opposite party-2 has put in appearance and has filed a short affidavit. However, the said affidavit has been sworn by the prosecutrix. As such, the prosecutrix has joined in the accused/applicants in present application. Opposite party-2 in her aforementioned affidavit has clearly stated that a compromise has been entered into by the parties and therefore, she does not wish to continue the criminal prosecution of applicants. On the above premise, the learned counsel for applicants thus submits that no useful purpose shall be served in prolonging the criminal prosecution of applicants. In view of above, in case the criminal prosecution of applicants is allowed to continue, a happy family comprising of applicant-1 and the prosecutrix, shall stand broken. He therefore submits that consequently, the present application is liable to be allowed by this Court.
5. Per Contra, the learned A.G.A. representing State-opposite party-2 has vehemently opposed the present application. He submits that since the prosecutrix was a child within the meaning of term child as defined in the POCSO Act, therefore, the subsequent development, if any, will not wipe out the criminality committed by accused/applicants. As such, no indulgence by granted by this Court in favour of applicants. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.
6. Mr. O. P. vishwakarma, Advocate holding brief of Mr. Shyam Babu Patel, the learned counsel representing first informant/opposite party-2, submits that he has received instructions not to oppose the present application. Attention of Court was then invited to the short affidavit filed by opposite party-2 wherein the opposite party-2 has clearly stated that present application be decided in terms of the compromise entered into by the parties. It is further submitted by the learned counsel representing opposite party-2 that the bonafide of the compromise entered into by the parties is evident from the fact that the short affidavit filed on behalf of opposite party-2 has been sworn by the prosecutrix herself. As such, the prosecutrix has joined in present proceedings. He further submits that it is an admitted fact that the prosecutrix has solemnized marriage with applicant-1. Resultantly, the prosecutrix is now the legally wedded wife of applicant-1. On the above premise, he, therefore, submits that he cannot have any objection in case the present application is decided by this Court taking into consideration the aforementioned facts.
7. Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. O. P. vishwakarma, Advocate holding brief of Mr. Shyam Babu Patel, the learned counsel representing first informant/opposite party-2 and upon perusal of record this court finds that subsequent to the F.I.R. dated 07.03.2019 lodged by the first informant/opposite party-2 and giving rise to present criminal proceedings, the parties have entered into a compromise inasmuch as the prosecutrix has solemnized marriage with applicant-1. In view of above, the prosecutrix is now the legally wedded wife of applicant-1. Consequently, the prosecutrix must be residing with applicant-1 as his legally wedded wife. In view of aforesaid subsequent development, criminality, if any, committed by accused/applicants now stands washed of. The Court further finds that bonafide of the parties is further explicit from the fact that the short affidavit filed by opposite party-2, has been sworn by the prosecutrix herself. As such, the prosecutrix has joined the accused/applicants in present application. In view of above, no useful purpose shall be served in prolonging the criminal prosecution of accused/applicants. Chances of conviction of accused/applicants are now not only remote but also bleak in view of the compromise entered into by the parties. As such, in case the criminal prosecution of applicants is allowed to continue, a happy family comprising of accused/applicant-1 and the prosecutrix shall stand broken.
8. At this juncture, reference be made to the judgement of Supreme Court in K. Dhandapani Vs. The State By the Inspector of Police, Criminal Appeal No. 796 of 2022 decided on 09.05.2022 and reported in 2022 SCC OnLine SC 1056
9. Since the judgement is a short one therefore the same is reproduced in its entirety:
“Leave granted.
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 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 Reason: 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.
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.
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.
After hearing the matter for some time on 08 th 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.
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.
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.
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.
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.”
10. In view of the discussion made above, the present application succeeds and is liable to be allowed.
11. It is accordingly allowed.
12. The entire proceedings of Special Case No. 235/2023 (State Vs. Anas @ Bablu & others) arising out of Case Crime no. 61 of 2019, under section 363, 366, 376 I.P.C. & 3/4 POCSO Act against the applicant no.1 and under section 363, 366 I.P.C. against applicant nos. 2 to 5, Police Station- Bithari Chainpur, District-Bareilly, now pending in the Court of Special Judge (POCSO Act)-3, District Bareilly are hereby quashed.
13. However, in the facts and circumstances of the case, parties shall bear their own costs.
Order Date :- 9.1.2025
YK
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