Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 21083 of 2018 Petitioner :- Meenu And Another Respondent :- State Of U.P. And 2 OthersThe victim-Seema and the accused Shriniwas has jointly filed this petition by claiming that both of them are adult and they have voluntarily entered into Counsel for Petitioner :- Kamal Kaushal Upadhyay Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the impugned First Information Report dated 26.07.2018, registered as Case Crime No.462 of 2018, under Section 366 I.P.C, Police Station Banna Devi, District Aligarh.
The allegation in the first information report is that informant's daughter Meenu, aged about 18 years, has been enticed by the accused Gaurav Mishra.
This petition has been filed by Meenu and Gaurav Mishra jointly by claiming that both of them are adult; that as per High School mark-sheet, the date of birth of Meenu is 25.02.1999; that they have voluntarily entered into relationship with each other, and, therefore, the impugned F.I.R is liable to be quashed.
On 03.08.2018, after hearing the learned counsel for the petitioners, following order was passed:-
"Heard learned counsel for the petitioners and learned A.G.A.
Learned counsel for the petitioners contends that the petitioner no.1 is major as per High School marksheet, copy of which is annexed as Annexure-2 to the writ petition and had married with the petitioner no.2 out of her own free will and consent and both them are living together as husband and wife, since the respondent no.3 was not happy with the marriage, therefore initiated the present prosecution which is bad in law and is against the settled principle of law as laid down by Hon'ble Apex Court in the matter of Sachin Pawar State of U.P. passed in Criminal Appeal No. 1142 of 2013, decided on 02.08.2013. It is further contended that even if the entire allegations made in the first information report are taken on their face value and left un-rebutted, no offence is disclosed against the petitioners.
The submission made by learned counsel for the petitioners, prima facie appears to have force. substance.
The matter requires consideration.
Learned A. G. A. has accepted notice on behalf of respondent nos. 1 and 2. He prays for and is allowed four weeks' time to file counter affidavit.
Issue notice to the respondent no. 3 indicating therein that he may file counter affidavit within the same period.
Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List immediately after expiry of the aforesaid period before appropriate Bench.
Till the next date of listing or till the submission of police report under Section 173(2) Cr.P.C. whichever is earlier, the petitioners shall not be arrested pursuant to the impugned FIR dated 26.07.2018 lodged in Case Crime No.462 of 2018, under Sections 366 I.P.C., Police Station Banna Devi, District Aligarh."
The office has submitted a report that petitioners have not taken steps to serve the respondent no.3.
In view of the above, we deem it appropriate to dispose off this petition as follows :-
The petitioner no.2 shall produce the petitioner no.1 (Smt. Meenu) before the court of Chief Judicial Magistrate, Aligarh by or before 10th May, 2019. Upon her production, the Chief Judicial Magistrate, Aligarh shall proceed to record the statement of Smt. Meenu to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial 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.2 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 four weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 10th May, 2019, or the date on which the victim is produced before the Chief Judicial 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 off.
Order Date :- 26.4.2019 m.a.