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"Victim-Accused Living Happily As Wife-Husband": Allahabad High Court Quashes POCSO Case, Relies On Meghalaya HC's Ruling

Sparsh Upadhyay
31 Aug 2022 2:46 PM GMT
Victim-Accused Living Happily As Wife-Husband: Allahabad High Court Quashes POCSO Case, Relies On Meghalaya HCs Ruling
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The Allahabad High Court recently quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) were 'happily' living with each other as husband and wife. The bench of Justice Gautam Chowdhary granted bail to one Gufran Shaikh who had been booked under Sections 363, 366, 376...

The Allahabad High Court recently quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) were 'happily' living with each other as husband and wife.

The bench of Justice Gautam Chowdhary granted bail to one Gufran Shaikh who had been booked under Sections 363, 366, 376 I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) SC/ST (Prevention of Atrocities Act), 1989.

He had moved the high court with his Section 482 CrPC plea seeking quashing of the case pending in the court of Additional District and Sessions Judge/ Special Judge (POCSO Act), Varanasi as well as the charge sheet and the cognizance order passed in the aforesaid case.

The counsel for the applicant, Aftab Alam submitted that the victim had solemnized marriage out of her own free consent and is presently residing with the applicant without any threat or coercion.

It was further argued that from the perusal of the statement of the victim recorded under Section 164 Cr.P.C., it was clear that the victim had not levelled any allegation against the applicant and that she had solemnized marriage with the applicant.

He next submitted that since the victim has solemnized marriage with the applicant out of her own volition, therefore, the proceedings against the applicant is bad in law and is liable to be quashed.

In this regard, the counsel also relied upon the Meghalaya High Court's order in the case of Olius Mawiong & Anr. Vs. State of Meghalaya & Anr 2022 LiveLaw (Meg) 25 wherein the HC had quashed the FIR and criminal proceedings in a POCSO case registered against a man noting that the accused man and victim-wife (a minor) were living with each other as husband and wife.

In this very case, the Bench of Justice W. Diengdoh had stressed that though POCSO Act punishes the act of sexual penetration inflicted upon a minor, yet, if other attending factors such as a case of consensual sex within the bond of marriage will not be taken into consideration then the cause of justice wouldn't be served.

"The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled," the bench remarked.

Read more about the case here: "Minor Girl Living With Accused As His Wife": Meghalaya High Court Quashes POCSO Case Adopting A 'Pragmatic' Approach

Against this backdrop, noting that the victim had eloped out of her own free will, love, and affection and had solemnized marriage without any force or coercion, the Court went on to quash the entire criminal proceedings.

"At present, both the applicant and the victim are living happily as husband and wife. The victim in her statement recorded under Section 164 Cr.P.C. she has unambiguously stated that she has gone out of her own volition and after that perform marriage with the applicant. Perusal of the aforesaid judgment clearly bring out the settled position in law. Considering the facts in entirety, this Court is of the opinion, that no useful purpose may be served in proceeding against the applicant and thus the entire proceedings of the aforesaid case is liable to be quashed," the Court remarked as it quashed the case.

Case title - Gufran Shaikh @ Gani Munawwar v. State of U.P. and Another [APPLICATION U/S 482 No. - 10258 of 2021]

Case Citation: 2022 LiveLaw (AB) 406

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