Point of Law: 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 be deemed to be raped.

JUDGMENT :

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, 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 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.