Court No. - 49
Case :- CRIMINAL MISC. WRIT PETITION No. - 2875 of 2021 Petitioner :- Anjali And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shivesh Mishra 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 no.1 and 2 and perused the record.
The instant petition seeks quashing of the F.I.R. dated 28.1.2021 registered as Case Crime No.0040 of 2021, under Sections 363, 366 I.P.C., Police Station- Sahawar, District- Kasganj. Further prayer has been made not to arrest the petitioners in pursuance of the aforesaid FIR. It has further been prayed that no coercive steps be taken against them by the concerned police.
Learned counsel for the petitioners submits that the petitioner no.1, Smt. Anjali is victim. She is major. In school certificate her date of birth has been shown as 12.1.2001. At the time of alleged incident the victim was major. There was love affair in between petitioner no.1 and petitioner no.2. The marriage of petitioner no.1 was solemnized with petitioner no.2 as per Hindu custom and traditions. Both the petitioners belong to Hindu community. Copy of marriage certificate has also been filed as Annexure-3 to this petition. It has further been submitted that this is the first marriage of both the petitioners and they are residing as husband and wife.
The case of the petitioners is that the victim is an adult whose date of birth is 12.1.2001 as per High School Certificate issued by Himachal Pradesh Board of School Education 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 17 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 school record date of birth of the victim has been shown as 12.1.2001. 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 17 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 (Smt. Anjali) 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, Kasganj within ten days. Upon her production, the Chief Judicial Magistrate/concerned Magistrate, Kasganj shall proceed to record the statement of Smt. Anjali, 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 :- 6.4.2021 T. Sinha