Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 10901 of 2018 Petitioner :- Smt. Muskan Khan @ Km. Khusbu And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Azhar Hussain Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Mahboob Ali,J.
Exemption application is allowed.
Learned A.G.A. has accepted notice on behalf of the opposite party nos. 1, 2 and 3.
Sri P.S. Pundir has put in appearance on behalf of opposite party no. 4.
Each of the respondents is granted four weeks time to file counter affidavit.
Rejoinder affidavit, if any, may also be filed within four weeks thereafter.
List on 10.07.2018.
Heard learned counsel for the petitioners, learned counsel for opposite party no. 4 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; there is joint affidavit in support of the writ petition; as per the Aadhar Card age of the victim is 19 years, as per medical examination age of the victim is 18-19 years; that both are major and have solemnized 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 Sachin Pawar v. State of U.P. Passed in Criminal Appeal No. 1142 of 2013 decided on 2.8.2013 and the principles as laid down by the Apex Court in the cases of Lata Singh v. State of U.P. And another; 2011(6) SCC 396 and Shakti Vahini v. Union of India passed in Writ Petition (Civil) No. 231 of 2010. The contention is that the allegations as made in the first information report are false and baseless.
The Court has been informed that petitioner no. 1 and 2 are present before this Court. Petitioner no. 1 and 2 have identiied each other and both in turn have been identified by their counsel on the basis of documents produced in his chamber. With the consent of the parties, the Court now proceeds to examine petitioner no.1.
On being asked 'aap ka naam kya hai' she informed the Court "Muskan Khan" on being asked 'aap ke pita ka naam kya hai' she informed "Rajesh"; on being asked 'aap ki umar kitni hai' she informed '18 1/2 years' on being asked 'kya aap pehle bhi bhag chuki hai' she informed the Court 'Ha Mateen ke sath bhagi thi' she informed ' pehli bar bhagi toh ghar walo ne mujhe pakad ke mama ko de diya, dusri bar bhagi toh phir mujhe pakad kar mama ko de diya aur mama mujhe bhut marte hai aur mera 161 ka bayan dobara hua mein phir tesri bar bhi Mateen ke sath bhagi aur ab mein Mateen ke sath hi rehna chahti huu'. She further informed the Court that 'mere ghar walo nay aur mere mama Jugal Kishore ne teen teen bar FIR karai aur teen bar 164 ka bayan hua wo log Mateen ke ghar walo ko Mateen ko aur mujhe bar bar preshan kar rahe hai aur jaan se marne ki dhamki de rahe hai, she further informed the Court that mere mama Jugal Kishore jo Home Guard hai, bar bar ghar par police walo ko bhejte hai.
However, it may be appreciated that counsel for the complainant does not dispute the fact that date of birth of the girl is 14.07.1999.
Thus, contention of learned counsel for the petitioners is that no offence as alleged in the FIR is made out against the petitioners and the matter does not require any further investigation.
In view of the aforesaid facts and circumstances, Prima facie, a case for grant of indulgence is made out.
Until 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. 0323 of 2018, u/s 366 IPC, police station Deoband, District Saharanpur.
It is made clear that Investigating Officer is directed to ensure that statement given by the girl before this court, is given due weight and same will form part of the case diary.
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.
Respondent no. 4, Jugal Kishore mama and other family members are hereby restrained from interfering with the the peaceful married life of the petitioners. They are also restrained from indulging in any act of violence with the petitioners and in case they are found in violation of the order of this Court that is being passed today, they will be personally answerable to this Court.
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.
Copy of the order be given to learned AGA within 24 hours.
Order Date :- 30.4.2018 Ujjawal