Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 663 of 2019 Petitioner :- Smt. Gulista And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajendra Kumar Misra Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.
A short counter affidavit has been filed, which is taken on record.
Heard learned counsel for the petitioners and Sri Patanjali Mishra, learned AGA for the State.
Looking to the nature of the controversy in issue, no purpose would be served in keeping the matter pending before this Court.
However, it may be appreciated that when the case was taken up on 11.1.2019, a detailed order was passed. The said order is being extracted herein below:
"Heard learned counsel for the petitioners and learned A. G. A. for the State.
This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F. I. R. which has been registered as Case Crime No.614 of 2018, under Sections 376-D, 452, 323, 504, 506, 147 I.P.C. and 5/6 Protection of Children From Sexual Offences (POCSO) Act, P.S. Gangoh, District Saharanpur.
The Court has been informed that the petitioner no.1, Smt. Gulista is the victim herself and she is one of the deponent of the affidavit; further contended that the petitioner no.2 is the husband of the petitioner no.1; both have solemnized marriage of their own free will, without any threat or coercion as they were in a consensual relationship; petitioner no.3 is the friend of the petitioner no.2; much reliance has been placed by learned counsel for the petitioners to the averments made in paragraph nos.6, 7, 8, 9 and 12 of the writ petition; the Court has been further informed that as they have solemnized marriage and as the marriage is not void but voidable and that too at the instance of a minor and even till date no proceedings for declaring the marriage as null and void has been initiated; further submitted that even if it is presumed for the sake of argument even though it has not been admitted that the girl is a minor even then the rightful custody would be that of the husband, i.e. the petitioner no.2; the question as raised at the Bar of this Court needs proper deliberation after exchange of pleadings; it has been further alleged that the victim is present before this Court and as an abundant caution the Court proceeds to examine the girl, petitioner no1.:
On being asked by this Court from the girl Tumhara Nam kya hai, she said Gulista, Tumhare Pitaji ka nam kya hai, she said Ninna, tum kuch pareshan lag ragi ho, tumhe kisi ne daraya ya dhamkaya hai kya, she said ji ha, mere Chacha (Nafis), Mamu (Somil) aur mere bhai (Nasir) ne mujhe mara bhi hai, Tumhari Umra kya hai, she said meri umra 19 saal hai, kya tumne apni marzi se shadi ki hai, she said ha, maine apni marzi se Shahjad se shadi ki hai bina kisi zor zabardasti ke"
The boy Shahjad who is also present before this Court has been identified by the girl as her husband who in turn has identified the girl as his wife. Both have been identified by their counsel on the basis of documents produced in their chamber.
Looking to the facts and circumstances of the case and the statement of the girl as has been made before this Court this Court hereby issued the following directions:
a) Learned A.G.A. who appears for the respondent nos.1 and 2 will file a counter affidavit within four weeks from today; b) issue notice to the respondent no.3. The notices will clearly elaborate that the case will be heared and disposed of finally on the next date of listing; c) in view of the apprehension as has been expressed by the girl before the Court, the Senior Superintendent of Police, Saharanpur is hereby directed that in case the petitioner nos.1 and 2 contact the Senior Superintendent of Police, Saharanpur by means of filing an application regarding apprehension to their life and liberty, he will take immediate steps keeping the security of the petitioner nos.1 and 2 in case any default on the part of the police authorities regarding security to the petitioner nos.1 and 2 the Court will take serious measures against the police authorities concerned. This Court further direct that the respondent no.3 and all the family members of the girl including Chacha (Nafis), Mamu (Somil) and brother (Nasir) are hereby directed to restrain from interfering in any manner whatsoever with the lives of the petitioner nos.1 and 2. They also injucted from indulging in any act of violence with the petitioner nos.1 and 2. In case they flout the order passed by this Court or indulge in any act of violence with the petitioner nos.1 and 2, they will be personally answerable to this Court.
List this case on 27.02.2019.
Till the next date of listing the police authorities are restrained from the proceedings in any manner whatsoever in pursuance of the first information report dated 31.10.2018.
Copy of this order be provided to the learned A.G.A. today itself for necessary compliance."
Thus, in view of the observation of this Court as made in the order dated 11.1.2019 and the nature of the controversy in issue, we dispose of this writ petition with the direction that the petitioners shall not be arrested in the aforementioned case till submission of police report under Section 173(2) Cr.P.C. However, petitioners shall participate and co-operate with the investigation and police authorities shall conclude the investigation in accordance with law as expeditiously as possible.
With the aforesaid observations, the instant writ petition is finally disposed of.
A copy of this order will form a part of the case diary and it is desirable that the police authorities shall conclude the investigation at the earliest keeping in view the spirit of the order without any whims, caprice or personal notion of morality.
Order Date :- 27.2.2019 SP