AMARJIT PAL Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard, Sri Vinay Kumar Jaiswal, learned counsel for the applicants, Ms. Seema Shukla, learned AGA-Ist for the State and Ms. Ankita Pandey, learned counsel for the opposite party no.2. Perused the record.

(2.) The application under Sec. 528 B.N.S.S. has been moved by the accused/applicants, son and his mother, respectively for quashing the charge sheet, summoning order and the entire proceedings of Sessions Case No. 1241 of 2025 (State Vs. Amarjit Pal and another) arising out of Case Crime No. 38 of 2025 for the offence under Ss. 69, 352, 351(3) BNS and Ss. 3, 4 of Protection of Children from Sexual Offences Act, P.S. Barwapatti, District Kushinagar, on the ground argued by learned counsel for the applicants that the allegation of rape is on applicant no.1 on false promise of marriage. The victim has incorrectly shown her age as below 18 years, although she is nearly 20 years of age; the mother of victim has initially moved an application under Sec. 175(3) BNSS, which was converted to complaint, but subsequently that complaint was withdrawn and the revision petition was dismissed as infructuous, that carries the same prosecution case as is alleged in the FIR. Further submits that the victim was a consenting party and there was a denial of internal medical examination by the victim and lastly non-compliance of the procedure provided under Sec. 233 BNSS.

(3.) Learned counsel for the opposite party no.2 and learned AGA for the State have stated that the victim was minor, who has continuously been raped by the applicant no.1 on false promise of marriage. There was a compromise between the parties that the applicant no.1 and the victim will get married for which the marriage invitation cards were printed specifying the date of marriage as 23/5/2025, but the accused/applicant no.1 has refused. Further submits that the victim was minor as such her consent for sexual intercourse, which is admitted by the applicant no.1 fall within the category of rape. Further submits that initially the complaint was made at the police station which was not registered. As such, the opposite party no.2 has moved an application under Sec. 175(3) BNSS and simultaneously sent the complaint to the higher police authorities. When the higher police authorities have directed the police station concerned, the FIR was registered. In the meantime, the application under Sec. 175(3) BNSS was converted to a complaint, which was challenged in revision and after registration of FIR, the complaint was withdrawn, which was filed by the mother of victim and the revision became infructuous and therefore dismissed as infructuous. Further submits that the complaint was withdrawn at pre-cognizance stage, as such the provision of Sec. 233 BNSS will not be applicable. Further submits that it is an admitted case of applicant that the applicant no.1 has entered into sexual intercourse with the victim, which was allegedly consented, whereas the consent with the minor is no consent in the eye of law, as such submits that the application is devoid of merits and deserves to be rejected.