Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 30590 of 2018 Petitioner :- Aship @ Mohammad Ashif And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kshatresh Kumar Counsel for Respondent :- G.A.,Shivajee Srivastava
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
Sri Shivajee Srivastava, learned counsel for private respondent no.4 is not present though the matter has been taken up in the revised list.
Heard Sri Kshatresh Kumar, learned counsel for the petitioners, Sri Gaurav Pratap Singh, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioners with a prayer to quash the impugned First Information Report dated 18.10.2018, registered as case crime No. 638 of 2018, under Sections 363, 366 I.P.C., P.S. Saini, District Kaushambi.
Learned counsel for the petitioners submitted that as per the High School Certificate, the prosecutrix/petitioner no.2, namely, Smt. Khushbu Saba is a major girl aged about 20 years and the petitioner no. 1 is also major aged about 27 years as per High School Certificate. He further submits that there was love affair between the petitioners no.1 and 2 and they both have performed marriage (Nikah) as per the Muslim rites on 21.10.2018, copy of their Nikahnama is annexed as Annexure-3 to the writ petition. He next argued that the prosecutrix/petitioner no.2 had voluntarily left her parental home and entered into matrimonial alliance with petitioner no.1 and that she was major, it cannot be said that any cognizable offence against the petitioners is made out, hence the impugned FIR is liable to be quashed. Learned counsel for the petitioners further submits that as the petitioner nos.1 and 2 are major and they have voluntarily married, then to conceive in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013 (Sachin Pawar vs. State of U.P) decided on 02.08.2013), that, offence has been committed under Section 366 I.P.C., cannot be approved of.
Per contra, learned AGA submitted that the impugned FIR is not liable to be quashed on the basis of the submissions made by the learned counsel for the petitioners.
Learned AGA has not been able to demonstrate that either the prosecutrix-Smt. Khushbu Saba was minor on the date of the incident or that she had been kidnapped or abducted by the petitioner no.1, in view of the above it cannot be said that the petitioners have committed any cognizable offence. The writ petition accordingly succeeds and is allowed.
The impugned FIR and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed.
There shall however be no order as to costs.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 28.11.2019/NS