The court quashed criminal proceedings under Section 366 IPC, emphasizing voluntary actions of the victim and the application of inherent powers to prevent abuse of process.

JUDGMENT :

Saurabh Lavania, J.

1. As per letter No.112/2024 dated 30.03.2024 of the Chief Judicial Magistrate, Barabanki, service of notice of this petition upon opposite party no.4 -complainant is sufficient and despite service of notice, no-one appeared on behalf of opposite party no.4.

2. Learned counsel for the applicant and learned counsel for opposite party no.4/victim are present.

3. Heard.

4. The present petition has been filed seeking the following main relief(s):-

"i. To quash the entire proceedings initiated in pursuance of F.I.R. No.407 of 2022 dated 30.04.2022, Under Section 366 Indian Penal Code, 1860, Police Station Kotwali, District Barabanki which are pending in the Court of Additional District and Sessions Judge / Special Judge POCSO Act, contained as Annexure No. 1 to this application;

ii. To quash the impugned charge sheet dated 26.09.2022 filed in Case Crime No. 0407 of 2022, Police Station Kotwali, District Barabanki, contained Annexure No. 2 to this application;

iii. To quash the impugned summoning order dated 15.12.2022, passed by the Court of Court of Additional District and Sessions Judge / Special Judge, Court No. 44, Barabanki, contained as Annexure No. 3 to this application."

5. It is stated that the opposite party no.4 made a written complaint at P.S. Kotwali Nagar, District Barabanki, according to which some unknown persons enticed away the minor daughter of opposite party no.4 and thereafter the FIR was lodged on 30.04.2022 bearing FIR No.0407 of 2022, under Sections 366 I.P.C.

6. It is further stated that in fact the applicant and victim were in affair and therefore the victim on her own volition left her parental house and accompanied the applicant as would appear from the statement of the victim recorded in terms of Sections 161 and 164 Cr.P.C.and from these statements it is also apparent that victim solemnized marriage with the applicant on 11.03.2022.

7. Further submission is that the victim was medically examined on 20.09.2022 and at the relevant point of time she was having pregnancy of 16 weeks and 5 days and this fact has been deduced from Annexure 5 to the present application.

8. It is also stated that taking note of the date of birth indicated by opposite party no.4 the Investigating Officer submitted the charge sheet against the applicant under Sections 363, 366, 376 I.P.C. &Section 5j(ii)/6 of POCSO Act.

9. It is further submitted that according to date of birth indicated in the FIR that is the basis of pending proceeding is 01.01.2004 according to which the victim at the time of incident as also at the time of lodging the FIR was aged about 18 years 3 months old and in view of the facts of the instant case, the benefit of the various pronouncements/judgments related to determination of age including the case(s) passed by the Hon'ble Apex Court Birad Mal Singhvi Vs. Anand Purohit, reported in (1988) Supp SCC 604, State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, Suhani Vs. State of U.P. delivered on 26.04.2018 in Civil Appeal No.4532 of 2018 arising out of SLP(C) No.8001 of 2018 and in the case of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC OnLine SC 1397, shall be extended in favour of the applicant and the opposite party no.5/victim both.

10. It is further stated that presently the applicant and victim are living as husband and wife along with their minor child, namely, Nitya Shukla, born on 25.02.2023, under one roof happily.

11. It is also stated that in the aforesaid facts and circumstances of the case, indulgence of this Court is required in the matter else entire matrimonial life of applicant and victim/opposite party no.5 as also future of their minor would be ruined.

12. Upon consideration of the aforesaid as also the observations in relation to determination of age rendered in the case of Birad Mal Singhvi (Supra), Gurmit Singh (Supra), Suhani (Supra) and Manak Chand alias Mani (Supra) as also the submissions made by learned Counsel for the parties as al