Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 5536 of 2019 Petitioner :- Jyoti @ Zoya And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mohd. Arshad Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners, learned counsel for the respondent no.3 Sri Madan Kumar Tiwari and the learned A.G.A.
By means of the present writ petition, the petitioners have invoked extraordinary jurisdiction of this Court with a prayer to quash the FIR dated 11.1.2019 in Case Crime No. 12 of 2019 under Sections 363, 366 IPC, P.S. Kotwali Nagar, District- Aligarh.
It is submitted by the learned counsel for the petitioners that the petitioner no. 1 is major. She was infatuated with petitioner no. 2 and performed marriage out of free volition according to Muslim Customs & Rites. The petitioners are being unnecessarily harassed by the police personnel on the basis of false allegations made in the first information report by the respondent no. 3 who is the mother of the petitioner no.1. The petitioner no. 1 has voluntarily performed marriage with the petitioner no. 2 without any coercion, duress or undue influence. Hence the impugned FIR deserves to be quashed.
Per contra learned counsel for the informant and the learned AGA have contended that the allegations made against the petitioners cannot be aborted at this stage. There is complicity of the petitioners in the commission of the said crime. The petitioners are involved in the serious offence.
Regard being had to the facts and circumstances of the case and also from the bald perusal of the FIR, prima facie cognizable offence is made out against the petitioners at this stage hence there is no ground for interfering in the FIR, therefore, the prayer for quashing the impugned FIR is refused.
However, considering the submissions made by the learned counsel for the petitioners, learned counsel for the informant and the learned A.G.A., it emerges out that petitioner no. 1 is alleged to be major but no reliable proof regarding her age has been annexed with the petition hence we direct her to appear before the Chief Judicial Magistrate concerned within two weeks from today, who shall get her medical examination done within a week thereafter by the CMO concerned to ascertain her age. The age certificate will contain self attested photograph of petitioner no. 1, Thereupon, the I.O. concerned shall record her statement under section 161 Cr.P.C. and also move an application before the C.J.M. concerned for getting her statement recorded under Section 164 Cr.P.C., who shall record the same. The investigation officer shall provide her full protection.
It is further directed that the petitioners no. 2 shall not be arrested in the aforesaid crime till the submission of the report under Section 173(2) Cr.P.C, subject to restraint that he shall cooperate with the investigation.
This writ petition is disposed of as above.
Order Date :- 28.2.2019 Vandana