Patna High Court
MOHAMMED IRFANversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
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
- Code of Criminal Procedure, 1973 — s. 164
- Indian Penal Code — s. 312, 313, 323, 34, 341, 342, 376, 448, 493, 504
- Protection of Children from Sexual Offences Act — s. 4, 6
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
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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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