Hon'ble Sanjay Kumar Pachori,J.
Short counter affidavit filed on behalf of the State is taken on record.
Heard learned counsel for the petitioners, learned A.G.A. for the respondents no.1 and 2 and perused the record.
The instant petition seeks quashing of the F.I.R. dated 6.9.2018 registered as Case Crime No.0428 of 2018, under Sections 363, 366 I.P.C., Police Station- Atrauli, District- Aligarh. Further prayer has been made not to arrest the petitioners in pursuance of the aforesaid FIR.
Vide order dated 15.12.2020, notice was issued to respondent no.3. Office report indicates that notice was issued to respondent no.3 by RPAD fixing 2.4.2021, but neither undelivered cover nor acknowledgement returned back.
Learned counsel for the petitioners submits that both the petitioners are major. In school certificate date of birth of petitioner no.2, Smt. Shushma Bhandari has been shown as 15.2.1995. At the time of alleged incident the victim was major. There was love affair in between petitioner no.1 and petitioner no.2. The marriage of petitioner no.2 was solemnized with petitioner no.1 in Arya Samaj, Nehru Nagar, Bhopal (M.P.) on 5.9.2018 and they have also got registered their marriage. Both the petitioners belong to Hindu community. Copy of marriage certificate has also been filed as Annexure-5 to this petition. It has further been submitted that both the petitioners are residing as husband and wife and out of the aforesaid wedlock, a female child was also born.
The case of the petitioners is that the victim is an adult whose date of birth is 15.2.1995 as per High School Certificate and that she has voluntarily entered into relationship with the petitioner no.1. Hence, no offence has been committed.
Per Contra, learned A.G.A. opposed the prayer for quashing the first information report. In the short counter affidavit it has been mentioned that during the course of investigation efforts have been made to search the victim. CDR of the mobile numbers of both the petitioners have been collected in which their location has been found in Bhopal (M.P.). The Investigating Officer has submitted report to Deputy Inspector General of Police, Aligarh seeking permission to go at Bhopal for search of victim as well as recording her statement under Section 161, Cr.P.C. and also for getting her statement recorded under Section 164, Cr.P.C.
Learned A.G.A. has further argued that the FIR of the alleged incident has been lodged on 6.9.2018. In the first information report age of the victim has been shown to be about 17 years. Statements of the victim under Sections 161, Cr.P.C. and 164, Cr.P.C. have also not been recorded. Learned A.G.A. next submits that it would be appropriate that this petition be disposed of by requiring the investigating agency to record the statements of the victim and, thereafter, take appropriate action as per law.
In school record date of birth of the victim has been shown as 15.2.1995. It has been submitted by the learned counsel for the petitioners that both the petitioners are major and have solemnized marriage. In the first information report age of the victim has been shown to be about 17 years. Statements of the victim under Sections 161, Cr.P.C. and 164, Cr.P.C. have not been recorded till date.
Considering the facts and circumstances of the case and without expressing any opinion on the merit of the case, we deem it appropriate to dispose of this petition by providing as follows:-
The petitioner no.1 shall produce the petitioner no.2, Smt. Shushma Bhandari before the Investigating Officer within 20 days from today for recording her statement under Section 161, Cr.P.C., thereafter the Investigating Officer shall produce the victim before the court of Chief Judicial Magistrate/concerned Magistrate, Aligarh within ten days. Upon her production, the Chief Judicial Magistrate/concerned Magistrate, Aligarh shall proceed to record the statement of Smt. Shushma Bhandari, petitioner no.2 to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.1. In case the victim deposes before the Chief Judicial Magistrate/concerned Magistrate that force has been used on her, the Chief Judicial Magistrate/concerned Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.1 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of recording statement of the victim under Section 164 Cr.P.C.
On the basis of the statement of the victim, the police shall submit report under Section 173(2) Cr.P.C.
The aforesaid exercise shall be completed preferably within a period of three weeks from the date of production of the victim before the Chief Judicial Magistrate/concerned Magistrate concerned. For a period of 30 days, or the date on which the victim is produced before the Chief Judicial Magistrate/concerned Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim.
It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigating agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
With the aforesaid observations/directions, the petition is disposed of.
Order Date :- 8.4.2021 T. Sinha