# Saurabh v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 4 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Application u/s 482 No. 34664 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-v-state-of-u-p-ors-opp-parties-49964
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366& 376
& 3⁄4 POCSO Act, 2012-Quashing of
Chargesheet as well as Cognizance ordervictim being minor girl cannot give her
consent with regard to conversion of her
religion-if
a
physical
relation

is
established with or without consent of girl
below the age of 18 years, it would not be
a valid consent-More so, there is no record
of the proceedings of Habeas Corpus Writ
Petition to strengthen the version of the
applicant that the victim had stated in
favour of the applicant in High CourtTherefore, it may be said that such person
had been kidnapped from her lawful
guardianship-Hence, the ongoing criminal
proceedings cannot be concluded the
abuse of process of court.(Para 1 to 16)

The application is rejected. (E-6)

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES
had received injuries with the deceased on
and at the time of the incident and they had
also been medically examined even then
their statements had not been recorded by
the IO and in spite of getting their medical
report, the same has not been annexed with
the charge sheet and when there is serious
allegation against the IO that he was under
the connivance with the accused persons
that's why they (the alleged injured eye
witnesses) had not been mentioned as
witnesses to weaken the prosecution case,
this court is of the view that in the aforesaid
circumstances it was bounden duty of the
court to summon and examine the aforesaid
witnesses. In the aforesaid circumstances
the trail court has rightly allowed the
application and ordered to examine the
applicants for just decision of the case.

19. Thus, it cannot be said that by
passing such order the trial court is trying
to fill up the lacuna of the prosecution. The
impugned order is based on sound and
cogent reason. The applicants could not
establish any ground on which basis this
court may exercise its inherent jurisdiction
as the impugned order is not the abuse of
the process of the court. Hence the
application is liable to be rejected.

O R D E R

20. The application u/s 482 Cr.P.C is
accordingly dismissed.

Let the copy of this judgement be sent
to the court concerned.
----------
(2023) 4 ILRA 412
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 34664 of 2022

Saurabh ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Ms. Manju Pandey

Counsel for the Opp. Parties:
G.A., Sri M.P.S. Chauhan

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860 - Sections 363, 366& 376
& 3⁄4 POCSO Act, 2012-Quashing of
Chargesheet as well as Cognizance ordervictim being minor girl cannot give her
consent with regard to conversion of her
religion-if
a
physical
relation

is
established with or without consent of girl
below the age of 18 years, it would not be
a valid consent-More so, there is no record
of the proceedings of Habeas Corpus Writ
Petition to strengthen the version of the
applicant that the victim had stated in
favour of the applicant in High CourtTherefore, it may be said that such person
had been kidnapped from her lawful
guardianship-Hence, the ongoing criminal
proceedings cannot be concluded the
abuse of process of court.(Para 1 to 16)

The application is rejected. (E-6)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Learned A.G.A has filed counter
affidavit in Court, which is taken on record.

2. No rejoinder affidavit has been
filed by the applicant.

3. Heard Ms. Manju Pandey, learned
counsel for the applicant, Sri M.P.S.
Chauhan, learned counsel for opposite
party no. 2 and Sri Pankaj Kumar Tripathi,
4 All. Saurabh Vs. State of U.P. & Ors.
413
learned A.G.A for the State and perused the
record.

4. Opposite party no. 2 is personally
served, but he has not came forward to
oppose the applicant and has also not filed
any objection/counter affidavit, but on the
date of hearing Sri M.P.S. Chauhan, learned
counsel for the opposite party no. 2. is
present.

5. The present application under
Section 482 Cr.P.C has been instituted by
the applicant to quash the Charge-Sheet
No. 93 of 2022 date 16.05.2022 as well as
cognizance order dated 02.06.2022 passed
by Additional District Judge / Special
Judge (POCSO Act), Bulandshahr, in Case
No. 2488 of 2022 - State Vs. Saurabh,
arising out of Crime No. 82 of 2022 under
Sections 363, 366, 376 I.P.C and 3⁄4 POCSO
Act, Police Station Araniya, District
Bulandshahr, pending in the aforesaid
court.

6. In brief, the facts of the case are
that opposite party no. 2, lodged F.I.R on
12.03.2022 against the applicant stating
therein that on 11.03.2022 applicant's
minor daughter Nargis aged about 17 years
had gone to the filed from the house to
preserve the wheat crops from the Neel Gai
(Boselaphus Tragocamelus) (blue bull).
After some time his wife Sabnam and
nephew Liyaquat reached there and saw
that neighbour Saurav S/o Devi Lal was
taking away his minor daughter alluring on
a black motorcycle on the road to village
Ghatal. They returned the home and
informed him, they search them but could
not find, hence his F.I.R be lodged and
necessary
action
be
taken.
After
investigation the charge-sheet has been
submitted in the aforesaid Sections against
the applicant and a charge-sheet has also
been submitted against accused Waris S/o
Nanhey Khan, under Sections 363 and 366
I.P.C.

7. The applicant has taken ground that
the I.O. has submitted the charge-sheet
without proper investigation, virtually the
applicant and the informant's daughter
loved each other and solemnized marriage
on 15.03.2022 in Naini Arya Samaj Mandir.
Copy of the marriage certificate has been
annexed as Annexure no. 3 to the affidavit.
Since the daughter of opposite party no. 2
was Muslim by religion, therefore before
the marriage she converted herself as
Hindu and changed her name from Nargis
to Soni Arya and thereafter she approached
the Hon'ble High Court by way of Habeas
Corpus Writ Petition No. 604 of 2022,
which is Annexure No. 4 to the affidavit.
During the course of hearing, the Hon'ble
High Court summoned his wife with
opposite party no. 2. The victim (daughter
of the informant) expressed her wish in the
Court to go with the applicant at her
freewill
and
without
any
pressure.
Therefore, the allegations against the
applicant are baseless and fabricated.

8. There is no criminal history of the
applicant and there is no likelihood of his
abscondance, hence the application be
allowed
and
the
aforesaid
criminal
proceeding and cognizance order be
quashed.

9. The applicant has filed a
supplementary affidavit to the effect that at
the time of incident, the applicant's
daughter was 17 years and eight months of
age and she has stated in her statement to
the I.O. that at the time of the incident she
was 18 years old, she was in love with
Suresh, she wanted to with marry him.
When she was produced for medical
414 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, she denied internal and
external examination and also stated that
she married with the applicant on 10th
March, 2022 at her own will and wish and
wanted to live with him. Even, in the
statement under Section 164 Cr.P.C. the
victim
has
stated
to
the
concerned
Magistrate that her age was 18 years, she
had gone with the applicant at her own will
and wishes. She wanted to marry and live
with the applicant without any pressure.
The applicant has not committed any illegal
act with her. Due to evil intention the
informant obtained age certificate from the
concerned Nagar Nigam, in which the age
of the victim has wrongly been mentioned
as 14th July, 2004 only to harass the
applicant. She has also stated in the Hon'ble
Court that the applicant has not committed
any illegal act with her.

10. Opposite party no. 2 has filed
counter affidavit dated 29th January,
2023, that no cause of action has arisen to
the
applicant
to
file
the
present
application. The I.O. has submitted
charge-sheet after proper investigation
and the concerned Judge has taken
cognizance on the basis of the facts and
evidences available on record. At the time
of commission of crime the victim was a
minor girl and her date of birth was 14th
July, 2004, therefore, at the time of
incident she was 17th years and 07
months and 27 days old. There is no
relevancy of marriage certificate issued
by
Aarya
Samaj
Krishna
Nagar,
Prayagraj.
The
victim
had
neither
converted her religion, nor she went with
the accused at her sweet will. The victim
never married the applicant, she never
wished to go with the applicant, virtually
she refused to go with the applicant and
their habeas corpus writ petition was
dismissed by the Hon'ble Court. primafacie a case under Sections 363, 366, 376
I.P.C and 3/4 POCSO Act is made out
against the applicant.

11. The applicant could not make
any prima-facie case for interference by
this
Hon'ble
Court
for
exercising
jurisdiction under Section 482 Cr.P.C.
The victim has given statement under
Section 161 Cr.P.C under the pressure of
the applicant and the Police. Under the
Police pressure she refused to conduct the
medical examination. She has given
statement under Section 164 Cr.P.C in
present of Police. At the time of
incidence and alleged conversion she was
minor, therefore there is no relevancy of
the
aforesaid
conversion
certificate.
Therefore the application be rejected on
heavy cost.

12. Heard and perused the record.

13. According to the applicant, at the
time of alleged occurrence, the victim was
a major girl and she was able to contact
physical relation/cohabitation with the
accused. She was also able to convert her
religion. She was in love with the accused
and after converting her religion, she
married with the applicant in Arya Samaj
Temple,
Naini,
Allahabad.
She
also
admitted the above facts in High Court in
Habeas Corpus Writ Petition No. 604 of
2022. She was neither kidnapped nor
abducted nor she was raped. She was not
below the age of 18 years, hence there is no
applicability of Sections 363, 366, 376
I.P.C and 3⁄4 POCSO Act. Hence the entire
proceedings be quashed.

14. Contrary to that from perusal of
record, it transpires that as per school
leaving certificate of Class-IV, the date of
birth of the victim is 14.07.2004, hence, she
4 All. Sudesh Pal Vs. State of U.P. & Anr.
415
was below the age of 18 years at the time
of alleged commission of crime. It is
common principle of law that a person
below the age of 18 years cannot give
consent with regard to conversion of his or
her religion and such person cannot give
consent with regard to Section 376 I.P.C as
Section 375 I.P.C provides that if a physical
relation is being established with or without
consent of a lady below 18 years of age, it
would not be a valid consent and in that
case physical relation with such minor girl
would be deemed to be raped under the
definition of Section 375 I.P.C. There is no
record of the proceedings of Habeas
Corpus Writ Petition No. 604 of 2022 to
strengthen the version of the applicant that
the victim had stated in favour of the
applicant in High Court. There is no proof
that father of the victim had changed her
actual date of birth. If a person is below the
age of 18 years and he/she is taken away
from his/her lawful guardianship, it may be
said that such person had been kidnapped.
After due investigation a charge-sheet has
been submitted against the accused under
Section 363, 366, 376 I.P.C and 3⁄4 POCSO
Act, hence, on the basis of evidence on
record, it cannot be concluded that ongoing
criminal proceeding is the abuse of process
of Court and to prevent such abuse or to
secure the ends of justice, this Court should
exercise its inherent jurisdiction to quash
the entire criminal proceeding in question .

15. Hence, the proceedings under
Section 482 Cr.P.C is not tenable and is
liable to be rejected.

O R D E R

16. The application under Section 482
Cr.P.C is accordingly rejected.
----------
(2023) 4 ILRA 415
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 35720 of 2022

Sudesh Pal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ayank Mishra

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860-Sections 498-A, 504,
304-B, 306 & 3⁄4 D.P. Act-demand of
dowry-unnatural death-wife committed
suicide after institution of divorce petition
by
the
applicant/husband-chargesheet
was filed against the accused/applicant
u/s 304B, 306 alongwith Section 498-As
per the postmortem report, the cause of
death was shock and haemorrhage as a
result of anti-mortem injury-The evidence
is not clear that she committed suicide or
she was killed-At the stage of charge,
benefit of doubt cannot be given to the
accused and in such cases alternative
charge u/s 304B and 302 IPC could be
framed along with charge u/s 498-A IPCWhen a charge is framed u/s 302 IPC, it
does not mean that the trial court is
determined to convict the accused u/s 302
IPC-It is only as a matter of abundant
caution and to give respect to the
directions given in this respect by Apex
Court, charge u/s 302 IPC is only
alternative-Sections 304B and 306 IPC are
two different sections, which cannot sail
together-An alternative charge may be
framed u/s 302 IPC, but no alternative
charge should be framed u/s 306 IPCThus, the trial court has wrongly framed