Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 33975 of 2018 Petitioner :- Smt. Jyoti Rathaur And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mukesh Kumar Pandey Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioners; the learned A.G.A. for the respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the FIR dated 20.11.2018 registered as Case Crime No. 335 of 2018, under Sections 366, 504, 506 I.P.C. at P.S. Kotwali Konch, District Jalaun.
The impugned first information report which has been lodged by the father of the victim, Jyoti Rathaur, alleges that his daughter, who is a student of B.A. IInd year, has been enticed away by the accused persons.
The petitioners have approached this Court along with victim stating that the victim is adult and that she has voluntarily married the petitioner no.2 (Atul Nayak) and therefore the allegations made in the first information report are palpably false and the report deserves to be quashed.
On 27.11.2018, after considering the aforesaid contentions, the Court had passed the following order:-
"Learned AGA has accepted notice on behalf of respondent no. 1 and 2. Issue notice to respondent no.3, Thakurdas Rathaur.
Six weeks time is accorded to the respondents to file counter affidavit. Two weeks time, thereafter is accorded to file rejoinder affidavit.
List after eight weeks.
On the matter being taken up today, petitioner no.1, Smt. Jyoti and petitioner no.2, Atul Nayak are present in the Court and they have been identified by their counsel and they are contending that they are major and on their own freewill petitioner no.1, Smt. Jyoti has left her parental house and has entered into matrimonial alliance with petitioner no.2, Atul Nayak and as such, lodging of F.I.R. has to be accepted as misuser of criminal forum. Reliance in this regard has been placed on the judgement of Apex Court in Criminal Appeal No. 1142 of 2013, Sachin Pawar Vs. State of U.P. decided on 02.08.2013.
Prima facie arguments advanced appears to have some substance and requires consideration by this Court and as such, this Court proceeds to direct that pursuant to impugned F.I.R. dated 20.11.2018 registered as Case Crime No. 335 of 2018, u/s 366, 504, 506 IPC, P.S.- Kotwali Konch, District- Jalaun no coercive action be taken. "
Office has submitted a report dated 29.01.2019 that notice was issued to the respondent no.3, fixing 02.01.2019 but, neither acknowledgement nor undelivered cover has been received back.
In view of the above, as the petitioners have enclosed the High School Marks-sheet/Certificate of the petitioner no.1 disclosing her date of birth as 20.03.2000, prima facie, we are of the view that the victim is an adult.
Under the circumstances, the statement of the victim needs to be recorded.
As the respondent no.3 is not before us, it would not be appropriate for us to record the statement of the victim as later there may be dispute as regards the identity of the person whose statement has been recorded.
Under the circumstances, we deem it appropriate to dispose off this petition by providing that the petitioners shall produce the victim (Jyoti Rathaur) before the Chief Judicial Magistrate, Jalaun on or before 14.02.2019. Upon her production, notice shall be issued to the investigating officer to ensure the presence of the informant or family members of the victim. Thereafter, the Chief Judicial Magistrate, Jalaun shall record the statement of the victim and, on the basis of the statement of the victim, so recorded, the investigating officer shall, thereafter, submit police report under Section 173 (2) Cr.P.C.
To ensure that no untoward incident happens and that safety of the petitioners is maintained, we deem it appropriate to provide that the Superintendent of Police, Jalaun, upon request by the petitioners, shall ensure safety and protection of the petitioners till recording of the statement of the petitioner no.1.
Till 14.02.2019 or till recording of statement as above, no coercive action shall be taken against the petitioners in Case Crime No. 335 of 2018, under Sections 366, 504, 506 I.P.C., P.S. Kotwali Konch, District Jalaun. Thereafter, further action may be taken as may be necessary, keeping in mind the statement of the victim recorded before the Magistrate.
Let a copy of this order be supplied to the learned A.G.A. for communication to the Superintendent of Police, Jalaun so that adequate security could be provided to the petitioners, if necessary and is prayed for.
Order Date :- 30.1.2019 Sunil Kr Tiwari