Court No. - 4
Case :- CRIMINAL MISC. WRIT PETITION No. - 9327 of 2018 Petitioner :- Smt. Komal Nishad And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajai Kumar Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Ravindra Nath Kakkar,J.
Heard learned counsel for the petitioners and learned A.G.A. for the respondents no.1, 2 and 3. None appeared on behalf of respondent no.4.
Seen the office note dated 12.09.2018. Service on respondent no.4 is deemed to be sufficient in view of the provisions of Chapter VIII, Rule 12, Explanation (II) of the Allahabad High Court Rules.
This writ petition has been filed by the petitioners with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 29.01.2018 registered as Case Crime No.019 of 2018, under Section 366 I.P.C., Police Station Bithoor, District Kanpur Nagar.
Following interim order was passed by another co-ordinate Bench of this Court in this case on 13.04.2018 :-
"Certified copy of the FIR filed today, which is taken on record, accordingly, exemption application stands disposed of.
Learned A.G.A. has accepted notice on behalf of the opposite party nos. 1 to 3.
Issue notice to the opposite party no. 4. Steps to be taken within ten days. In case, steps are not taken within the time specified above, the present order shall stand automatically vacated.
Each of the respondents is granted four weeks time to file counter affidavit.
Rejoinder affidavit, if any, may also be filed within three weeks thereafter. List thereafter.
Heard learned counsel for the petitioners and learned AGA for the State and perused the impugned F.I.R. as well as material brought on record.
Learned counsel for the petitioners submits that the victim herself is petitioner no. 1 and the accused is petitioner no. 2; petitioner no.2 is deponent of the affidavit filed in support of the writ petition; as per the High School Certificate, the date of birth of the victim is 09.10.1999 even as per the FIR, her age is about 18 years and 6 months; marriage certificate is annexed at page 31 to the writ petition. It has been mentioned in para nos. 5,6,7,8 that both are major and they have also solemnized their marriage and they are living happily as husband and wife. Learned counsel for the petitioners has further placed reliance upon a judgment of the Apex Court rendered in Criminal Appeal No. 1142 of 2013 – Sachin Pawar Vs. State of U.P., decided on 02.08.2013. The contention is that the allegations as made in the first information report are false and baseless.
In view of the aforesaid facts and circumstances, prima facie, a case for grant of indulgence is made out.
Accordingly, till further order of this Court, it is directed that the petitioners shall not be arrested pursuant to the impugned FIR registered as Case Crime No. 019 of 2018, u/s 363 IPC, police station Bithoor, District Kanpur Nagar.
Let a copy of the order be forwarded to the concerned SSP/SP through the office of the Government Advocate who after receipt of the order shall ensure the safety of the petitioners and also shall ensure that the family members of the victim do not cause any harm or injury to the petitioners and shall ensure fair investigation of the matter without any whims, caprice or personal notion of morality.
The petitioners are also given liberty that in case any threat is extended to them or they have any apprehension with regard to their security, they may immediately file an application before the SSP/SP concerned along with the certified copy of the order and in case such an application is filed before the SSP/SP concerned, he will look into the matter personally and will ensure the safety of the petitioners."
Learned counsel for the petitioners submitted that the petitioner no.1 Smt. Komal Nishad had solemnized marriage with petitioner no.2 Ram Singh voluntarily after leaving her parental home on her own accord. Therefore, it cannot be said that the petitioners have committed any cognizable offence and hence impugned F.I.R. is liable to be quashed.
Learned A.G.A. for the State has not disputed the fact that petitioner no.1, Smt. Komal Nishad is major and she had solemnized marriage with petitioner no.2 Ram Singh voluntarily after leaving her parental home on her own accord.
After having heard the learned counsel for the parties and perused the other material brought on record, we are of the opinion that since the petitioner no.1, Smt. Komal Nishad was major on the date of occurrence and she had solemnized marriage with petitioner no.2 Ram Singh voluntarily after leaving her parental home on her own accord, it cannot be said that petitioners have committed any offence under Sections 366 I.P.C.
In the result, the writ petition succeeds and is accordingly allowed.
The impugned F.I.R. dated 29.01.2018 registered as Case Crime No.019 of 2018, under Section 366 I.P.C., Police Station Bithoor, District Kanpur Nagar, as well as all proceedings initiated in pursuance to the same are hereby quashed.
There shall however be no order as to costs.
Order Date :- 13.9.2018 Anand Sri./-