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Patna High Court

MOHAMMED IRFANversusTHE STATE OF BIHAR

Decided
Disposal
ALLOWED

Holding

The order taking cognizance dated 06‑08‑2022 is set aside.

Summary

The petitioners, Mohammed Irfan, Aproz Khatoon and Mohammed Atiquir Rahman, filed an application to quash the taking cognizance dated 06‑08‑2022 by the Special Judge under the POCSO Act and several sections of the Indian Penal Code in Mahila P.S. Case No. 50 of 2021. They contended that the alleged victim was a major (19‑20 years) and therefore the POCSO provisions were inapplicable, and that the rape allegation under Section 376 IPC was not supported by any evidence. The police investigation later reported that the victim had eloped with another boy, was located in Mumbai, and a separate FIR (Katra P.S. Case No. 151 of 2024) was lodged by her father. The State’s counsel did not dispute these facts. The Court held that proceeding against the petitioners would amount to an abuse of the process of law, as the victim could not substantiate the original allegations. Consequently, the order taking cognizance was set aside and the petition was allowed.

Issues considered

  • Whether the taking cognizance under the POCSO Act is valid when the alleged victim is an adult.
  • Whether the evidence on record suffices to sustain charges under Section 376 IPC and Sections 4 and 6 POCSO.
  • Whether continuation of the criminal proceeding constitutes an abuse of the process of law.

Legislation cited

Subjects

  • POCSO Act
  • rape
  • quash of cognizance
  • abuse of process
  • victim age
  • Section 376 IPC
  • Section 4 POCSO
  • Section 6 POCSO
  • criminal procedure

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                               CRIMINAL MISCELLANEOUS No.425 of 2023
                    Arising Out of PS. Case No.-50 Year-2021 Thana- MAHILA P.S. District- Muzaffarpur
                 ======================================================
           1.     MOHAMMED IRFAN Not available R/v- Fatehpur, P.S.- Katra, District-
                  Muzaffarpur
           2.    APROZ KHATOON Not available R/v- Fatehpur, P.S.- Katra, District-
                 Muzaffarpur
           3.    MOHAMMED ATIQUIR RAHMAN Not available R/v- Fatehpur, P.S.-
                 Katra, District- Muzaffarpur

                                                                                    ... ... Petitioner/s
                                                        Versus
           1.    THE STATE OF BIHAR Bihar
           2.    MOHAMMED SIRAZ S/o Mohammed Ayub R/v- Fatehpur, P.S.- Katra,
                 District- Muzaffarpur

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr.Mani Bhushan Kumar, Adv.
                 For the Opposite Party/s :        Mr.Arun Kumar Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
                                       ORAL ORDER

6   13-01-2026                    Heard learned counsel for the petitioners and learned

                   A.P.P. for the State.

                                2. The petitioners have made the following prayer in

                   this application :-

                                                               “That this application is being

                                                    filed for quashing taking cognizance

                                                    dated      06.08.2022        passed      by     7th

                                                    Additional Session Judge-cum-Special

                                                    Judge, POCSO Act, Muzaffarpur in

                                                    Mahila P.S. Case No. 50 of 2021, G.R.
Patna High Court CR. MISC. No.425 of 2023(6) dt.13-01-2026
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                                          No. 60 of 2021 under Sections 341, 342,

                                          448, 493, 504, 323, 312, 313, 376 and

                                          34 of the Indian Penal Code and

                                          Sections 4 and 6 of the POCSO Act.”

                       3. Learned counsel for the petitioners submits that the

          petitioners have falsely been implicated in this case and no case

          against the petitioners for the offences under Section 376 of the

          Indian Penal Code and Sections 4 and 6 of the POCSO Act is

          made out. From bare perusal of the F.I.R., it is evident that the

          victim happens to be major and upon her medical test, her age

          was found to be 19 to 20 years and therefore the offences under

          the POCSO Act is not applicable in the present case. It has next

          been submitted that the allegation of rape has also not been

          substantiated by any evidences and during pendency of the

          present application, this Hon’ble Court had directed the Senior

          Superintendent of Police, Muzaffarpur to enquire into the where

          abouts of the victim/informant.

                       4. Pursuant to the order dated 11.08.2025, the Senior

          Superintendent of Police, Muzaffarpur has submitted a report

          which has been brought on record by way of counter affidavit

          wherein it has been submitted that the victim was found to have

          eloped with another boy from the neighbourhood. It has further

          been submitted that the victim earlier was located and was taken
Patna High Court CR. MISC. No.425 of 2023(6) dt.13-01-2026
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          for medical examination and her statement under Section 164 of

          the Cr.P.C. was also recorded and thereafter, she was handed

          over to the father of the victim, Md. Ayub. The Senior

          Superintendent of Police, Muzaffapur has further pointed out

          that subsequent missing of the victim was reported by her father

          and for which the F.I.R. bearing Katra P.S. Case No. 151 of

          2024 dated 28.02.2024 has been lodged by him. It has further

          been submitted that the Senior Superintendent of Police,

          Muzaffapur has pointed out that the CDR of the mobile phone

          given by the father of the victim was traced and it was found

          that she was in touch with one Md. Salim Khan and both

          locations were of Mumbai. Finally, when the police tried to

          locate the tower location, the phone numbers were found to be

          switched off. It has further been submitted by the Senior

          Superintendent of Police, Muzaffarpur that Katra P.S. Case No.

          151 of 2024 is still under investigation and the SIT has been

          constituted for the recovery of the traceless victim/ informant of

          the present case.

                       5. Learned counsel has further submitted that in view

          of the fact that the father of the victim has already entered into a

          compromise with the petitioners and others and he does not

          want to pursue the matter further and moreover the police has
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          also located the victim to be present in Mumbai for which one

          F.I.R. bearing Katra P.S. Case No. 151 of 2024 has been lodged,

          the continuation of the present proceeding would amount to

          abuse of the process of law. It has also been submitted that the

          order taking cognizance that any evidence of the petitioners

          being involved in the offences as alleged earlier, also prima

          facie seems to be false and therefore the proceeding against the

          petitioners be set aside.

                       6. Learned A.P.P. for the State does not dispute the

          aforesaid factum and has referred to the counter affidavit filed

          on behalf of the Senior Superintendent of Police, Muzaffarpur

          who has categorically stated that the victim has eloped with a

          boy from the neighbourhood and for which one Katra P.S. Case

          No. 151 of 2024 has been lodged by the father of the victim/

          informant of the present case.

                       7. Having heard the learned counsel for the parties

          and taking into account the fact that the police has found the

          victim to have eloped with one another boy and her location was

          found to be in Mumbai, the order taking cognizance as far as the

          petitioners are concerned would amount to abuse of process of

          law for the fact that the victim is not there to support the

          contention raised in the F.I.R. and moreover she has eloped with
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                     another boy and her location was found to be in Mumbai.

                                  8. In view of the aforesaid, the order taking

                     cognizance dated 06.08.2022 passed by 7th Additional Session

                     Judge-cum-Special Judge, POCSO Act, Muzaffarpur in Mahila

                     P.S. Case No. 50 of 2021, G.R. No. 60 of 2021, is set aside.

                                  9. The application stands allowed.



                                              (Sourendra Pandey, J)
Gautam/-

U     T


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