YUVRAJ YADAV Vs. ADHEEKSHAK KENDRIYA KARAGAR NAINI PRAYAGRAJ

JUDGEMENT

(1.) Heard Sri D.S. Mishra, learned Senior Counsel assisted by S/Sri Prabhashankar Chaturvedi, Abhishek Kumar Mishra and Chandrakesh Mishra, Sr. Advocate, learned counsel for the petitioner and Sri Satyendra Tiwari, learned A.G.A. appearing for the State respondents.

(2.) Present petition has been filed with the following prayers:-

(3.) This petition has been filed on behalf of the petitioner- Yuvraj Yadav (corpus) who claims to have been falsely implicated in Case Crime No.558 of 2022, under Sec. 376, 506, 342 I.P.C. and Sec. ' POCSO Act. It is also claimed that FIR has been lodged by the father of the victim and her age therein has been shown as 15 years, which is not true one. The allegation is that petitioner is detained in illegal custody, which is unconstitutional and contrary to law. On behalf of the petitioner an application dtd. 15/9/2022 was moved with the prayer that remand order may kindly be cancelled which is under Sec. ' POCSO Act. On 15/9/2022 the trial court has, without jurisdiction, in a mechanical and arbitrary way, signed custody warrant from dtd. 2/9/2022 to 15/9/2022. Later on, remand order was mechanically signed, as there was no case diary and any documents / papers regarding the case, were presented before the trial court. It has been specifically mentioned in the application dtd. 15/9/2022 that under The Right To Information Act, date of birth of the victim in first school, attended from Khand Shiksha Adhikari, Mauaima, Prayagraj was asked for, according to which victim was major and her age was more than 20 years. Additional Sessions Judge and Special Judge, POCSO Act, Prayagraj fixed a date 21/9/2022 for disposal and order for radiologist's report of the victim. The victim's father submitted an affidavit dtd. 11/10/2022 that as the medical examination of the victim has not been done so he does not want to get her daughter / victim to be radiologically examined in accordance with the order dtd. 21/9/2022 and prayer was made to reject the same and to discharge her from radiological examination. Objection was also filed on behalf of the victim along with certificate / marksheet of High School examination of 2021 in which date of birth is shown as 18/7/2022. The trial court has dismissed the application of the petitioner in an arbitrary manner on 11/10/2022, which is contrary to the settled case law. The trial court rejecting the application dtd. 15/9/2022 by passing the impugned order dtd. 11/10/2022 by which it has signed remand order under Sec. 3/4 POCSO Act and Sec. 376, 506, 342 IPC which is against the provisions of law. On behalf of the petitioner, case law of Rishipal Singh Solanki v. State of Uttar Pradesh and Sanjeev Kumar Gupta v. State of Uttar Pradesh were presented along with provisions of J.J. Act, 2015 for perusal but they were not considered and the order was passed to the effect that the age given in 8th standard marksheet is to prevail regarding the age of the victim. The trial court has not considered the provisions given in Sec. 94 (2) (i) of J.J. Act, 2015, according to which the victim was not minor and rather she was major as her date of birth was 3/3/2002, as per the record of class-1, primary school, Umari. This vital point and fact has not been considered by the trial court and remand order was signed in a mechanical way. The trial court has also not considered this important fact and circumstance that trial court has given order dtd. 21/9/2022 to the I.O. to get the victim radiologically examined for the determination of her age but this was objected to on behalf of the victim and she was not got examined for the determination of age. The remand orders are not formal ones but they are legal and judicial orders, which are required to be passed after perusal of the documents / papers in the circumstances of a given case. Before the trial court, no case diary and papers were presented for the perusal and order of remand was passed in a mechanical and formal way. On 21/9/1 October, 7/10/11 October, 15/10/28 October, no case diary and papers were presented before the trial court and the order was passed in a mechanical way and no judicial custody has been extended. Additional Sessions Judge / Special Judge POCSO Act has no jurisdiction to take cognizance and to pass a remand order, so in this circumstance, the proceedings conducted, remand orders passed dtd. 11/10/2022 to 27/3/2023, are beyond jurisdiction. Petitioner has been deprived of his personal liberty against the legal process and in violation of the provisions of Article 21 read with Article 14 of the Constitution of India. Additional Sessions Judge / Special Judge POCSO Act, on 3/11/2022, has not passed any remand order extending the custody of the petitioner in the like way, on 21/11/2022, 21/12/2022, 25/1/2023, 7/2/2023, 4/3/2023, 27/3/2023, no remand order has been passed nor is available on record. According to provisions of Sec. 309 Cr.P.C. no remand order can be passed for keeping in custody for an unlimited period. The intermediate custody orders are meaningless and on their basis petitioner cannot be detained in jail. Intermediate custody orders dtd. 21/12/2022, 25/1/2023, 7/2/2023, 4/3/2023, 22/3/2023 are against the provisions of Sec. 309 Cr.P.C. as well as Article 21 of the Constitution of India. Additional Sessions Judge / Special Judge POCSO Act has no jurisdiction to try the S.S.T. No.326 of 2022 arising out of Case Crime No.558 of 2022 as the same has not been committed to the Court. It is further stated that an application under Sec. 482 Cr.P.C. as Criminal Misc. Application No.37471 of 2022 has been filed in which interim stay order has been granted by this Court vide order dtd. 23/1/2023, which is extended upto 24/4/2023. The petitioner is detained in illegal custody which is contrary to legal process, unconstitutional and contrary to law. On the grounds, the prayer for habeas corpus has been made by the petitioner that he is innocent and has been falsely implicated in Case Crime No.558 of 2022. The victim of the alleged offence is major one. Her date of birth is 3/3/2002. As per the provisions of Sec. 94 (2) (i) of J.J. Act, 2015, the date of birth shown in class-1 of the school of the victim is to prevail over the date of birth shown in the high school certificate / marksheet. The trial court has not considered all these provisions. No remand order, available on record, has been passed by any competent court to detain the petitioner in jail. No intermediate custody warrants have been passed on prescribed proforma for detaining the petitioner in jail. Petitioner has been deprived of his personal liberty against the legal procedure in an arbitrary manner which is unlawful and unconstitutional.