Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 15630 of 2019 Petitioner :- Chandni Arya @ Chandbi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Preet Pal Singh Rathore Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioners, Sri Mohd. Irfan, learned counsel for the complainant and learned AGA for the State.
This writ petition has been filed for issuing a writ order or direction in the nature of certiorari quashing the impugned FIR registered as Case Crime No. 158 of 2019, U/s 366, P.S. Bilsi, District Budaun.
Learned counsel for the petitioners submits that victim herself is petitioner no.1 and accused is petitioner no. 2. Both are major and they have solemnized their marriage of their own sweet will without any fear, threat or coercion and they are living happily as husband and wife; as per the FIR lodged by the father of the girl the age of the girl is 26 years; as per the High School certificate the date of birth of the girl is 4.4.1993.
Learned counsel for the complainant has not disputed the age of the girl and the veracity of the high school marksheet has also not been disputed by him.
Since the Court has been informed that the girl present before this Court today, with the consent of learned counsel for the parties, the Court proceeds to examine her only to know as to whether she in fact is the signatory to the affidavit filed in support of the writ petition.
Accordingly, the Court has examined the girl, who has made a statement before this Court that her name is Chandni. The girl has also informed the Court that she has married with petitioner no. 2, who is present before this Court today, of her own sweet will without any pressure, threat or coercion and they are entitled to live happily as husband and wife. She has further informed that "jo signatures writ petition aur affidavit par hain wo mere hi hain". She further contends that no offence as alleged in the FIR has been made out, however, the police under the garb of investigation is unnecessarily harassing the petitioners.
Reference may also be made to the judgment passed by Lucknow Bench of this Court passed in Habeas Corpus No.247 of 2015 Smt. Ramsati @ Shyamsati vs. State of UP and others (decided on 7.9.2015) wherein the Court has relied upon another judgment of the Lucknow Bench of this Court passed in the case of Sonu Paswan vs. State of U.P. And another, 2013 (31) LCD 1107, whereby this Court while observing that even if the detenue is a minor, her marriage cannot be said to be viod ab initio under the provisions of Hindu Marriage Act and thereby directed for release of the detenue. Relevant paras 22 to 27 record as under:-
"22. Even if it is considered that Rekha Devi is a minor, her marriage is not void ab initio under the provisions of Hindu Marriage Act.
23. The marriage would be voidable under the Act of 2006, only if Rekha Devi files a petition for that purpose. In the case in hand, however, Rekha Devi states that she got married to Sonu Paswan, i.e. the petitioner, and wants to live with him in her matrimonial home. The marriage is not void under Section 12 of the Act of 2006 in so much as the conditions stipulated in the said provision are not existence in this case.
24. Under Section 21 of the Guardian and Wards Act, 1890, a minor can act as a guardian of his own wife or child. Under the Hindu Minority and Guardianship Act, 1956, Clause 'C' of Section 6, in the case of married girl, the husband would be the guardian.
25. Considering the facts and circumstances of this case, in context of legal provisions referred to above, there is no legal impediment in releasing Rekha Devi under the guardianship of her husband, Sonu Paswan, the petitioner.
26. In view of the above, the contention of learned counsel for the respondent, who is father of Rekha Devi, has to be rejected.
27. This Court further records that it is not in the welfare of a female to keep her in Nari Niketan for prolonged period, particularly when she wants to join the company or remain in the custody of her husband, who would be the natural guardian, in context of law. In such circumstances, order passed by the In-charge, Chief Judicial Magistrate, Balrampur, is rendered illegal and not warranted under Law."
Issue somewhat similar has been considered by the Lucknow Bench of this Court while dealing with Writ Petition No. 3519 (MB) of 2015, Shaheen Parveen Vs. State of U.P. and others. In judgement dated 23.7.2015, the following has been held in paras 14 to 28:-
"14. The Investigating Agency is concluding that at the point in time when the victim left in the company of the accused, she was a few months less than 18 years, which is the relevant age mentioned in Section 361 of the Indian Penal Code, above extracted. Clearly, the Investigating Agency is taking a hypertechnical view of the issue. The other relevant facts and circumstances of the case are being ignored.
15. The issue whether the victim was kidnapped or abducted is required to be examined in context of the statement of the prosecutrix recorded under Section 164 Cr.P.C.
16. If the statement of the prosecutrix, above noted, is taken into account, it becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused/sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the prosecutrix, without the consent of the guardian/respondent no. 4. In the case in hand, it is the case of the prosecutrix herself that she of her free will went with Sarfaraj, lived with him, wants to live with him and is expecting his child. Element of coercion and enticement by Sarfaraj is absent, although consent of the guardian had not been taken.
17. The writ court, being a court of equity, must take into consideration all relevant factors brought before it to deliver substantial justice. Equity justifies bending the rules, where fair play is not violated, with a view to promote substantial justice. A writ court cannot contemplate any limitation on its power to deliver substantial justice. It has to be ensured that a consumer of justice gets complete justice, instead of going into the nicety of law. Under the circumstances, the court cannot be a mere onlooker if injustice is likely to be caused.
18. Petitioner No.1 the victim/prosecutrix would be the best witness, rather the only witness of commission of offence under Sections 363/366 I.P.C. Surely, the victim will not support the prosecution case, as has been made evident by her in her statement, recorded in the course of investigation under Section 164 Cr.P.C., and therefore the trial would result in acquittal. During course of trial, considerable number of man hours would be wasted in prosecution/ defending and judging the case. No useful purpose would be served and the entire exercise of trial would be in futility because the victim has declared that she was not victimised or kidnapped.
19. The facts that have emerged from the record make it evident that the impugned criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent no.-4) has not accepted the marriage of her daughter with petitioner No.2.
20. In case, despite the evidence that has come on record, as noted above, proceedings are not quashed, petitioner no.-2 would be required to face criminal charges and undergo the agony of a trial.
21. xxxxxx
22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. In case the victim/ prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him.
23. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act that she had gone with the boy and got married to him. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation.
24. Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian.
25. So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. ( The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme Court of India reported in (1965)1 SCR 243 S. Varadarajan versus State of Madras).
26. xxxxxxxxxxx The said petitioner had attained age of discretion, however, not age of majority.
Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him.
27. The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed hereinabove."
In view of the aforesaid facts and circumstances, keeping in view the statement made by the victim girl before this Court today and keeping in view the law as laid down in the case of Sachin Pawar v. State of U.P. Passed in Criminal Appeal No. 1142 of 2013 decided on 2.8.2013 and the law as laid down by the Division Bench of this Court at Lucknow Bench in the cases of Vishal Jaiswal and another v. State of U.P. and others passed on 26.8.2016 in Misc. Bench No. 10724 of 2016, Habeas Corpus No.247 of 2015 Smt. Ramsati @ Shyamsati vs. State of UP and others (decided on 7.9.2015), Sonu Paswan vs. State of U.P. And another, 2013 (31) LCD 1107, Shaheen Parveen and another v. State of U.P. And others passed in Writ Petition no. 3519 (M/B) of 2015, Basanti and another vs State of UP and others, passed in Misc. Bench No.18314 of 2016 (decided on 16.9.2016), Vinod Kumar vs State of UP and others passed in Misc. Bench No.28150 of 2016 (decided on 13.2.2017) and by the Apex Court in the cases of Lata Singh v. State of U.P. And another; 2011(6) SCC 396 and Shakti Vahini v. Union of India passed in Writ Petition (Civil) No. 231 of 2010, no purpose would be served in permitting the investigation to continue in pursuance of impugned FIR and in permitting the police authorities to harass the couple under the garb of fair investigation. It would be nothing but a sheer abuse of the process of law.
Accordingly, the writ petition stands allowed. The aforementioned impugned FIR is hereby quashed. Consequences to follow.
The family members of the victim girl are restrained from interfering in any manner whatsoever in the peaceful living of petitioner nos. 1 and 2 and indulging in any act of violence with them. They are also injuncted from trying to contact the petitioners. In case they flout the order passed by this Court today, they will be personally answerable to this Court.
Order Date :- 31.5.2019 Kuldeep