Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 15728 of 2019 Petitioner :- Smt. Divya Varma And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suresh Chand Yadav,Manoj Kumar Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioners 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. 0092 of 2019, under Section 363, 366 of I.P.C. & 7/8 of POCSO Act, P.S. Maharajganj, District Azamgarh.
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 15 years; as per the Progress report the date of birth of the girl is 22.10.2000, copy of which has been annexed at page 35 of the writ petition. Learned counsel for the complainant has shown the High School marksheet in which the date of birth of the victim is 02.07.2003.
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 Divya Varma. She has also made a statement that "meri umra 19 years saal hai aur jo High School certificate me likhi hai uske mata pita ne kam karke likhwayi hai". The girl has also informed the Court that she has married with petitioner no. 2 Anoop Yadav, 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 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.
In view of the aforesaid facts and circumstance and also 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 principles as laid down 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, a case for grant of indulgence is made out.
Counter affidavit to be filed within four weeks by the learned A.G.A. as well as respondent no. 4 and rejoinder affidavit to be filed within three weeks thereafter.
List thereafter.
It is directed that until further orders of this Court, the petitioners shall not be arrested nor any coercive action shall be initiated against them relating to case crime no. 0092 of 2019, U/s 363, 366 IPC and 7/8 of POCSO Act, P.S. Maharajganj, District Azamgarh.
In the meantime, liberty is given to the petitioners that in case they approach District Magistrate, Azamgarh along with the copy of the order within a period of one month from today, the District Magistrate concerned is directed to constitute a Medical Board consisting of the Chief Medical Officer, Azamgarh and two other senior doctors which would include one lady doctor who will examine the girl - petitioner no. 1 for the purpose of determining her age. Petitioner no. 1 will also be examined by a Radiologist with regard to age verification only.
The report of the Medical Board will be submitted by the learned counsel for the petitioners before this Court by the next date of listing.
Order Date :- 31.5.2019 Ujjawal