Court No. - 21
Case :- CRIMINAL MISC. WRIT PETITION No. - 3286 of 2021 Petitioner :- Pankaj Kumar Alias Ankit Respondent :- The State Of U P And 3 Others Counsel for Petitioner :- Ram Manohar Kashyap,Vijay Nishad Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajit Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
This writ petition has been filed by the petitioner with a prayer to issue a writ, or direction in the nature of certiorari to quash the impugned First Information Report dated 24.12.2020 registered as Case Crime No.265 of 2020, under Sections 363, 366 I.P.C., Police Station Bhurkura, district Ghazipur. Further prayer is that to issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to arrest the petitioner in pursuance of the aforesaid impugned first information report.
Learned counsel for the petitioner contends that the petitioner is not guilty for the offences under Sections 363 and 366 I.P.C. So far as the solemnization of the marriage between the petitioner and the respondent no.3 is concerned, it was solemnized with the consent and sweet will of the respondent no.3. On the date of solemnization of marriage both were major and a copy of the marriage certificate is annexed as annexure-2 to the writ petition. It is also submitted that after solemnization of the marriage the respondent no.3 (sister of the complainant) has submitted an affidavit before the Superintendent of Police as well as District Magistrate, Ghazipur that she has solemnized her marriage with the petitioner with her free will and without any pressure, copy whereof has been annexed as annexure-3 to the writ petition.
In paragraph no.7 of the writ petition, it has been averred that on the basis of mutual consent the petitioner and respondent no.3 (sister of the complainant) has taken divorce from each other in the presence of some witnesses, which is notary affidavit, photocopy whereof dated 13.11.2020 has been annexed as annexure-4 to the writ petition.
Having perused the documentary evidence available on record of this case, prima facie, the petitioner appears to be not a minor and has entered into wedlock with the respondent no.3. We also find that after the marriage both the parties executed a joint affidavit on oath that they have taken divorce from each other. At this juncture, instead of quashing the impugned FIR, we pass the following directions under Article 226 of the Constitution of India:-
a). The investigation of the First Information Report dated 24.12.2020 registered as Case Crime No.265 of 2020, under Sections 363, 366 I.P.C., Police Station Bhurkura, district Ghazipur shall go on.
b). The statement of the respondent no.3, Gudiya shall be recorded by a judicial officer which would be treated as a statement under Section 164 Cr.P.C. This exercise will be completed only after the lock down is lifted and the respondent no.3 shall appear before the judicial officer and the complainant who is the brother of the respondent no.3 will also be given a notice to be present before the concerned court.
c). If the investigating authority is satisfied that the victim/respondent no.3 namely Gudiya needs to be medically examined for ascertaining her age, that exercise may also be completed.
Looking to the averments made in the petition, at this stage, the petitioner shall neither be arrested nor coerecively dealt with till the investigation is over.
We are passing this order in the peculiar facts and circumstances of this case.
With the aforesaid observations, the writ petition stands finally disposed of.
Order Date :- 13.5.2021 R./