Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 5204 of 2019 Petitioner :- Aarti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Kumar Sharma,Samar Singh Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1, 2 and 3; and perused the record.
The instant petition seeks quashing of the First Information Report dated 04.02.2019 registered as Case Crime No.57 of 2019, under Sections 363, 366 I.P.C., P.S. Bilari, District Moradabad.
The allegation in the impugned First Information Report, which has been lodged by the father of the victim Aarti (the petitioner no.1) is to the effect that his daughter, who is aged about 17 years, has been enticed away by the accused person.
The accused Ankit along with victim Aarti have approached this Court by claiming that they are adults and have voluntarily entered into relationship with each other and therefore no offence has been committed.
There is no documentary evidence to disclose that the victim is an adult. As per the allegation in the first information report, the victim is a minor aged about 17 years.
Under the circumstances, the prayer to quash the impugned FIR cannot be accepted. However, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Aarti) before the court of Chief Judicial Magistrate, Moradabad by or before 13th March, 2019. Upon her production, the Chief Judicial Magistrate, Moradabad shall proceed to record the statement of Aarti to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.2 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. On the date so fixed, the learned Magistrate shall proceed to determine the age of the victim as per law, keeping in mind the provisions that are applicable for determination of the age of a victim and may, if necessary, direct for ossification test/medical examination of the victim from a District Government Hospital. If the victim is found to be a minor, the learned Magistrate shall proceed to pass appropriate orders in respect of custody of the victim, as per law. However, in case the victim is found to be an adult, he shall proceed to record the statement of the victim under Section 164 Cr.P.C.
On the basis of the statement of the victim and the age of the victim as determined above, the police shall submit report under Section 173(2) Cr.P.C.
The aforesaid exercise shall be completed preferably within a period of three weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 13th March, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim. Though, in the event the victim is found to be minor, the police would be free to take the investigation to its logical conclusion and may effect arrest of the accused.
It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigation agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
With the aforesaid observations/directions, the petition is
disposed off.
Order Date :- 26.2.2019 AKShukla/-