The court's discretion to reject an application to determine the victim's age before trial.

JUDGMENT :

Manju Rani Chauhan, J.

Heard Mr. Bairister Singh, learned counsel for the applicant, Mr. Dinesh Chandra Yadav, learned counsel for the opposite party no.2 and Mr. Amit Singh Chauhan, learned AGA for the State as well as perused the entire records.

2. This application has been filed by the applicant with a prayer to quash the order dated 30.11.2021 passed by Additional District and Sessions Judge/Special Judge, POCSO Act, Court no.2, Varanasi in S.S.T. No.30/2018 (State vs. Sonu Maurya and Others) arising out of Case Crime No.686/2017, under Sections 354A, 504, 506 IPC and Section 7/8 of POCSO Act, P.S.- Phoolpur, District-Varanasi, pending before the Additional District and Sessions Judge/Special Judge, POCSO Act, Court no.2, Varanasi.

3. Brief facts of the case are that an FIR was lodged on 14.09.2017 against the applicant under Sections 354A, 504, 506 IPC with the allegations that when the daughter of opposite party no.2 went to tube-well for washing clothes, the applicant misbehaved with her and when the opposite party no.2 went to house of applicant, he, after using abusive language, threatened to kill. After investigation charge sheet was submitted and the charges were framed under Sections 354A, 504, 506 IPC as well as section 7/8 of POCSO Act. Subsequently, the court below proceeded with the trial and the victim has been examined as P.W.-1. The chief-examination of the victim, P.W.- 1 has been recorded on 30.11.2021 by Additional District and Sessions Judge/Special Judge, POCSO Act, Court no.2, Varanasi. During course of examination of the victim, P.W.-1, the counsel for the accused-applicant found contradictions regarding age of the victim, therefore, an application was filed being Paper No.15Kha, 16Kha and 17Kha on 04.03.2021 requesting the court below to proceed with the trial only after taking evidence regarding the age of the victim and deciding the same. However, the aforesaid application has been rejected vide order dated 30.11.2021 on the ground that the question regarding age of the victim cannot be decided at this stage and the same can be done only after the entire evidences is collected.

4. Learned counsel for the applicant submits that in an earlier case, which was registered by the victim in the year 2015 being Case Crime No.345/2015, Under Sections 323, 376 IPC, Police Station-Phoolpur, District-Varanasi, the age of the victim as determined by the Doctor was said to be 19 and a half years. In the aforesaid case, the statement of the victim was recorded wherein she stated that she was studying in Class-Xth at Sant Azayab Singh Maharaj Public School, Karikhiyava, Varanasi and also accepted that she was 19 years old. However, in the present case, the educational certificate has been produced in which date of birth of the victim is mentioned as 24.04.2001. Therefore, without deciding the issue regarding age of the victim, the court below cannot proceed with the trial and has rejected the application in a mechanical manner. He further submits that the concerned court below has illegally passed the impugned order dated 30.11.2021 rejecting the application of the applicant without considering the grievance of the applicant, hence, the same is liable to be quashed by this Court.

5. Per contra, learned A.G.A. has opposed the contention raised by the learned counsel for the applicant by submitting that though section 216 Cr.P.C. provides power to the court concerned to alter or add any charge at any time before judgment is pronounced, but no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 Cr.P.C. If such a course to be adopted by the parties is allowed, then it will be well nigh impossible for the Criminal Court to conclude its proceedings and the concept of speedy trial will get jeopardized. The aforesaid has been held by the Apex Court in the case of P. Kartik