Court No. - 44
Case :- CRIMINAL MISC. WRIT PETITION No. - 16776 of 2019 Petitioner :- Smt. Gajala And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mahendra Tripathi Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J. Hon'ble Anil Kumar-IX,J.
In compliance with the order dated 16.06.2019, the respondent no.4 has been served through the C.J.M. Agra as the office report dated 21.06.2019 shows. We have also perused the report submitted by the C.J.M. Agra dated 21.06.2019 which shows that respondent no.4 Abdul Salam has been served personally by the C.J.M. through the agency of the Police. A FAX copy of the notice bearing the thumb impression of respondent no.4 is available as a part of the service report. We, accordingly, hold service upon respondent no.4 to be sufficient. When the case is called on for hearing no one appears on behalf of respondent no.4.
Heard Sri Mahendra Tripathi, learned counsel for the petitioners and Sri Deepak Mishra, learned A.G.A. appearing on behalf of the State.
This petition has been filed challenging the First Information Report dated 09.04.2019 giving rise to the Case Crime No. 198 of 2019, under Section 366 I.P.C., P.S. Shahganj, District Agra.
On 17.06.2019 we passed the following order which carries all the details about the issue involved in this petition and the stand taken by the first petitioner Smt. Gajala and the second petitioner Jakir Usmani whom she acknowledges to have married:
"Heard Sri Mahendra Tripathi, learned counsel for the petitioners and Sri U.K. Upadhyay, learned AGA appearing on behalf of the State.
This petition has been filed seeking to assail the impugned FIR giving rise Case Crime No. 198 of 2019 under Section 366 IPC, P.S.- Shahganj, District- Agra.
The submission of the learned counsel for the petitioners is that first petitioner Smt. Gajala has married the second petitioner Jakir Usmani, son of Munna of her free will on 24.1.2018 according to the Muslim rites. It is asserted that the first petitioner Gajala is 23 years old and her date of birth recorded in her high school mark sheet is 15th March, 1996, a copy of which annexed as Annexure No.2 to the writ petition. We have perused the said document and find that the date of birth of Smt. Gajala is 15th March, 1996, and therefore she is clearly a major. A perusal of the FIR also shows that the prosecutrix is a major. Smt. Gajala is present before the Court who has been identified by her husband Jakir Usmani. Learned counsel for the petitioners have identified both the petitioners on the basis of documents produced before him in his chambers.
We, accordingly, proceed to examine petitioner No.1-Smt. Gajala, who is present before this Court:
आपकक नकम कयक हह ?
गजकलक आपकक पपतकजज कक नकम कयक हह ?
अबदल सलकम अपनक शकदज पकससक कक हह? जकपकर उसमकनज जज सक इनकक पपतक कक नकम कयक हह ?
मदनक अपनक शकदज अपनज मजर सक कक हह ?
जज आप खश हह ?
जज आप पकसकक सकथ जकनक चकहतज हह ?
जकपकर उसमकनज कक सकथ Smt. Gajala and Jakir Usmani both of whom present in Court have signed order-sheet and have been identified by learned counsel for the petitioners on the order sheet.
Looking aforesaid statement made by the petitioners prima facie there is absolutely nothing in this FIR to proceed with.
However since the FIR has been lodged by respondent No.4 Abdul Salam, father of the petitioner No.1, we have considered it appropriate to issue notice to respondent No.4 returnable on 21st June, 2019.
Service of notice shall be affected by CJM, Agra before that date and shall perform necessary steps.
Put up in additional cause list on 21st June, 2019, on which date petitioner Nos.1 and 2 shall remain present.
Learned AGA may also file a counter affidavit by 21st June, 2019 showing the cause as to why this FIR shall not be quashed.
Until further orders of this Court, the petitioners shall not be arrested by the police pending investigation in Case Crime No. 198 of 2019 under Section 366 IPC, P.S.- Shahganj, District- Agra."
Learned A.G.A. has also not come up with a counter affidavit. Accordingly, this Court proceeds to dispose of the matter on the existing material. The first and the second petitioners have been found to be adults by our order dated 16.06.2019 where the first petitioner is aged about 23 years as per her recorded age in the High School Mark-Sheet. It shows that she is a well educated person and of mature years. Her statement recorded by us in our order dated 17.06.2019 extracted above shows that there is absolutely no case of the second petitioner enticing away the first petitioner in order to marry her. It is a case where she has married the second petitioner of her free will in accordance with Muslim Rites on 24.01.2018. Considering the stand of the first petitioner, the impugned F.I.R. cannot be permitted to be investigated as it does not disclose any offence. Accordingly, this petition succeeds is and allowed.
The impugned F.I.R. dated 09.04.2019 giving rise to the Case Crime No. 198 of 2019, under Section 366 I.P.C., P.S. Shahganj, District Agra is hereby quashed. Let an entry be made in the G.D. of Police Station Shahganj, District Agra that Case Crime No. 198 of 2009 stands quashed under order of this Court. The said part of our orders shall be caused to be carried out by the C.J.M., Agra within a period of 15 days.
Let a copy of this order be forwarded to the C.J.M., Agra by the Registry within a week.
Order Date :- 21.6.2019 Rahul.