Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 12738 of 2019 Petitioner :- Anchal And 6 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Janardan Yadav Counsel for Respondent :- G.A.,Jamil Ahamad Azmi Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
The case has been called out. Counsel for the respondent no. 4 and learned A.G.A. for the respondents no. 1, 2 and 3 are present.
The instant petition seeks quashing of the first information report dated 11.4.2019 registered as Case Crime No. 0050 of 2019 at P.S. Bilariyaganj, District Azamgarh, U/s 363, 366, 506, 120-B I.P.C. and U/s 7/8 POCSO Act.
The allegation in the impugned first information report, which has been lodged by the respondent no. 4, is that informant's daughter Anchal (petitioner no. 1) who is aged 15 years, has been enticed away by Sunil Paswan (petitioner no. 2) with the help of other accused persons.
On 13.5.2019, following order was passed:-
"Heard learned counsel for the petitioner and learned AGA for the State.
The contention of the learned counsel for the petitioner is that victim herself is petitioner no. 1 and accused is petitioner no. 2 alongwith other members. The date of birth of the victim as per Pariwar Register is 1.1.2001 and is 18 years old and as per FIR which has been lodged by the father of the girl he has mentioned her age 15 years old. Petitioner nos 1 and 2 have also solemnized marriage with their own sweet will without any fear threat or coercion. They have filed their agreement to marriage at page 27 of the writ petition.
Since petitioner no. 1 is present before the court today, the court proceeds to examine her.
Accordingly, the court has examined petitioner no. 1. On being asked "Aapka naam kya hai" , she informed that "mera naam Anchal hai". On being asked "Aapke Pita ka Kya naam hai". She informed that "Mera Pita ka naam Shiv Ram hai". When she was asked "Kya Shadi apni marji se ki hai", She replied "Haan shaadi apni marji se ki hai". On being asked "Aapki umar kya hai", She said "Meri umar 18 saal hai", When she was asked "AAp kahan tak padhi hai". She informed that "mai 11 tak padhi hun". In view of the aforesaid, a case of grant of indulgence has been made out.
Admit.
Learned AGA has accepted notices on behalf of respondent nos 1 to 3. Issue notice to respondent no. 4. Steps to be taken within a week.
Each of the respondents is granted four weeks time to file counter affidavit. Rejoinder affidavit, if any, may also be filed within three weeks thereafter.
List thereater.
Till further orders of the court, the petitioners will not be arrested nor will be harassed in any manner whatsoever in pursuance of the FIR dated 11.4.2019."
Pursuant to the notice issued to the respondent no. 4, a counter affidavit has been filed by the 4th respondent in which Matriculation Certificate of Anchak Saroj has been enclosed disclosing her date of birth as 30.3.2004. It has been contended that the victim is a minor and therefore the first information report cannot be quashed.
Be that as it may, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Anchal) before the court of Chief Judicial Magistrate, Azamgarh by or before 20th December, 2019. Upon her production, the Chief Judicial Magistrate, Azamgarh shall proceed to record the statement of Anchal 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 20th December, 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 :- 28.11.2019 Saurabh