Court No. - 3
Case :- CRIMINAL MISC. WRIT PETITION No. - 20068 of 2018 Petitioner :- Arti And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manoj Kumar Counsel for Respondent :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioners and Sri Vinod Kant, learned Additional Advocate General, assisted by learned A. G. A. for the State.
This writ petition has been filed by the petitioners with prayer to quash the F.I.R. dated 20.03.2018 lodged in Case Crime No.0067 of 2018, under Section 376 I.P.C., and Section 3/4 of Protection of Children from Sexual Offences Act, 2012, Police Station Jhangaha, District Gorakhpur.
It has been submitted by learned counsel for the petitioners that the petitioner no.1 had married with the petitioner no.2 out of love and affection and since the respondent no.3 was not happy with the marriage, therefore proceedings under Sections 363, 366 I.P.C., was initiated by the respondent no.3 against the petitioners, which was challenged by the petitioners by way of criminal misc. writ petition no. 9440 of 2018 and another Bench of this Court, vide order dated 13.04.2018 had granted protection to the petitioners, copy of which order is annexed as Annexure- 4 to the writ petition. Learned counsel further contends that thereafter, Section 376 I.P.C., and Section 3/4 of POCSO Act has been added which is bad in law. It is next contended that the petitioner no.1 has been released in favour of the petitioner no.2, vide order dated 09.07.2018 passed by learned Additional District Judge/Special Judge POCSO Act, Gorakhpur, copy of which is annexed as Annexure-8 to the writ petition. It is thus contended that adding of Section 376 I.P.C., and Section 3/4 of POCSO Act is bad in law.He further submitted that apart from the bald allegations made in the F.I.R., which is a bundle of lies and product of malice, no credible evidence is forthcoming, even prima facie, indicating that any such incident had taken place, hence the impugned F. I. R. is liable to be quashed.
Per contra, learned A. G. A. submitted that from the perusal of the impugned F.I.R. it cannot be said that no cognizable offence is made out, hence the impugned F.I.R., is not liable to be quashed.
From the perusal of the F.I.R. it appears that on the basis of the allegations made therein prima facie cognizable offence is made out hence, there is no scope for interfering with the impugned F.I.R.
Therefore, the prayer for quashing the impugned F. I. R. is refused.
However, considering the submissions advanced by learned counsel for the petitioners and nature of allegations made in the F. I. R., it is directed that the petitioners shall not be arrested in the aforementioned case till submission of police report under Section 173 (2) or till credible evidence is collected, whichever is earlier.
With the aforesaid directions, this writ petition is disposed of finally.
Order Date :- 26.7.2018/S.Ali