Court No. - 49
Case :- CRIMINAL MISC. WRIT PETITION No. - 2932 of 2021 Petitioner :- Anila Kumari Gond And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjeev Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Bachchoo Lal,J.
Hon'ble Sanjay Kumar Pachori,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 01.03.2021 registered as Case Crime No. 0035 of 2021, under Section 366 I.P.C., P.S. Asthan, District Kushinagar.
The allegation in the First Information Report, which has been lodged by the brother of the victim, Anila Kumari Gond (petitioner no. 1) is to the effect that her daughter has been enticed away by the accused person.
Learned counsel for the petitioners submits that the petitioner no.1, (Anila Kumari Gond) is victim. She is major. In Birth Certificate issued by Government of Uttar Pradesh, her date of birth has been shown as 05.05.1998; and that the petitioner no.1 and petitioner no.2 fell in love each other. At the time of alleged incident, the victim was major. The marriage of the petitioner no.1 was solemnized with petitioner no.2 on 23.03.2021 in the Arya Samaj Temple Krishna Nagar, Prayagraj, as per Hindu customs and traditions. It has further been submitted that they are residing as husband and wife.
The case of the petitioners is that the victim is an adult whose date of birth is 05.05.1998 as per Birth Certificate issued by Government of Uttar Pradesh (Copy of the said certificate is annexed as Annexure No.3 to the writ petition), and that she has voluntarily entered into relationship with the petitioner no.2. Hence, no offence has been committed.
Per Contra, learned A.G.A. opposed the prayer for quashing the first information report and argued that in the first information report age of victim has been shown to be about 19 years. Statements of the victim under Sections 161, Cr.P.C. and 164, Cr.P.C. have also not been recorded. Learned A.G.A. next submits that it would be appropriate that this petition be disposed of by requiring the investigating agency to record the statements of the victim and, thereafter, take appropriate action as per law.
In Birth Certificate issued by Government of Uttar Pradesh, date of birth of the victim has been shown as 05.05.1998. It has been submitted by the learned counsel for the petitioners that both the petitioners are major and have solemnized marriage. In the first information report age of the victim has been shown to be about 19 years. Statements of the victim under Sections 161, Cr.P.C. and 164, Cr.P.C. have not been recorded till date.
Considering the facts and circumstances of the case and without expressing any opinion on the merit of the case, we deem it appropriate to dispose of this petition by providing as follows:- The petitioner no.2 shall produce the petitioner no.1 (Anila Kumari Gond) before the Investigating Officer within 20 days from today for recording her statement under Section 161, Cr.P.C., thereafter the Investigating Officer shall produce the victim before the court of Chief Judicial Magistrate/concerned Magistrate, Kushinagar within ten days. Upon her production, the Chief Judicial Magistrate/concerned Magistrate, Kushinagar shall proceed to record the statement of Anila Kumari Gond petitioner no.1 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/concerned Magistrate that force has been used on her, the Chief Judicial Magistrate/concerned 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 recording statement of the victim under Section 164 Cr.P.C.
On the basis of the statement of the victim, 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 Magistrate concerned. For a period of 30 days, or the date on which the victim is produced before the Chief Judicial Magistrate/concerned 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.
It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigating 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 of.
Order Date :- 7.4.2021 Ishan