Hon'ble Rajeev Singh,J.
Heard Sri Amit Kumar Singh, learned Counsel for the petitioners, Sri Aman Kumar Shrivastava, learned Counsel for the respondent no.4/complainant and Sri S.P. Singh, learned AGA for the State/respondents no. 1 to 3.
This writ petition has been filed by the petitioners, Nekram, Tejram, Vijnesh, Gopendra and Vimla, seeking to quash the First Information Report No. 0003 of 2021, under Section 363/366 I.P.C., Police Station Sursa, District Hardoi.
Learned counsel for the petitioners submitted that the prosecutrix/petitioner no.5-Vimla and petitioner no.1-Nekram are major aged about 21 years and 22 years, respectively. In support of age of the prosecutrix/petitioner no.5, petitioners have annexed her High School Certificate contained in Annexure No.3 to the writ petition. There was love affair between the petitioner no.1 and 5 and they both have performed marriage on 7.1.2021 in Arya Samaj Mandir, Yaseenpur, Hardoi, copy of which has been annexed as Annexure-2 to the writ petition. He next argued that the petitioner no.5 had voluntarily left her parental home and entered into matrimonial alliance with petitioner no.1 and that she was major, therefore, it cannot be said that any cognizable offence against the petitioners are made out. He further argued that earlier to the impugned F.I.R., respondent no.4/complainant had lodged F.I.R., bearing No. 0375 of 2020, under Sections 363/366 I.P.C. at Police Station Sursa, District Hardoi, against the petitioners, alleging that her minor girl aged about 17 years have been eloped away by the petitioner no.1 and co-accused persons, even though the respondent no.4 has knowledge that her daughter is a major girl. He has also argued that against the F.I.R. No. 0375 of 2020, the petitioners no. 1 and 5 filed a writ petition no. 1653 of 2021 (M/B) before this Court and this Court, vide order dated 21.01.2021, restrained the respondents from taking any coercive action against the petitioners no. 1 and 5. He has submitted that though the petitioner no.5 is major but even then the complainant deliberately shown age of the petitioner no.5 in the earlier F.I.R. as 17 years and has deliberately not mentioned the age of the petitioner no.5 in the impugned F.I.R. He argued that the impugned F.I.R. has been lodged against the petitioners, levelling therein bald allegations against the petitioners.
At this stage, learned counsel for the petitioners further submits that as the petitioner nos.1 and 5 are major and they have voluntarily married, then to conceive in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013 (Sachin Pawar vs. State of U.P) decided on 02.08.2013), that, offence has been committed under Section 363 I.P.C., cannot be approved of.
Per contra, learned counsel for the complainant/respondent no.4 opposed the prayer of the learned counsel for petitioners but he could not dispute the fact that the petitioner no.5 is a major as her date of birth is 08.09.1999 as per the High School Certificate contained in Annexure No.3 to the writ petition and further earlier to the impugned F.I.R., another F.I.R. was lodged by the respondent no.4 against the petitioner no.1 and other co-accused persons, in which this Court, vide order dated 21.01.2021 in Misc. Bench No. 1653 of 2021, restrained the respondents from taking any coercive action against the petitioner no.1 and 5. The said writ petition is still pending adjudication before this Court. He argued that necessary direction be issued to the petitioners to return the mobile phone, other articles, cash and ornaments, which were taken away by the petitioner no.5 while going from his house.
Learned AGA has also opposed the prayer of the learned counsel for the petitioners but he has not disputed the fact that the petitioners no.1 and 5 are major as per the High School Certificate annexed as Annexure No. 3 to the writ petition.
Having considered the submissions of the learned Counsel for the parties and gone through the record, we are of the view that learned AGA and learned Counsel for the complainant have not been able to demonstrate that either the prosecutrix Vimla was minor on the date of the incident or that she had been kidnapped or abducted by the petitioner no.1, therefore, it cannot be said that the petitioner nos.1 and 5 have committed any cognizable offence, hence in view of the ratio laid down by the Apex Court in Sachin Pawar vs. State of U.P (supra), the impugned F.I.R. is liable to be quashed.
Accordingly, the impugned FIR and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed.
There shall, however, be no order as to costs.
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(Rajeev Singh, J.) (Ramesh Sinha, J.) Order Date :- 6.4.2021 Ajit/-