Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 2396 of 2018 Petitioner :- Rakesh Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vipin Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Krishna Pratap Singh,J.
Affidavit of compliance has been filed on behalf of Superintendent of Police, Mirzapur whic is taken on record.
Heard Sri Vipin Kumar Singh, learned counsel for the petitioners, Sri Shiv Prakash Dwivedi, learned counsel for the private respondent Sri I.P. Srivastava, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioners with a prayer to quash the impugned First Information Report dated 28.10.2017 registered as Case Crime No. 406 of 2017, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station Lalganj, District Mirzapur.
In the affidavit of compliance which has been filed today it has been stated that the victim was studying in Higher Secondary School, Lalapur, Lalganj, District Mirzapur in Class-IXth in which the date of birth of the victim 08.08.2003 has been mentioned on the basis of which offence under Section 376 I.P.C and 3/4 of POCSO Act was added to which learned counsel for the petitioner has drawn the attention towards the Pariwar Register of respondent no. 3 in which the date of birth of victim has been mentioned as 21.01.1998 which itself shows that the document which was produced before the Investigating Officer is not an authentic one and just to harass the petitioner the said document was given to the Investigating Officer who had added offence Section 376 I.P.C. and Section 3/4 of POCSO Act though there appears to be no allegation levelled against the petitioner under Section 376 I.P.C. and her date of birth as per Parivar Register coupled with medical examination the victim is aged 21 years and is a major girl. It is further submitted that the petitioner has also got himself bailed out from the Competent Court under Sections 363 and 366 I.P.C. on 17.11.2017. Subsequently, the transfer certificate of class IXth of the victim girl was given by the respondent no. 3 to the Investigating Officer in which the date of birth was shown to be 08.08.2003 showing that she is minor which is an afterthought and deliberate to harass the petitioner though no offence is disclosed against the petitioner under Section 3/4 of POCSO Act and under Section 376 I.P.C.
Further learned counsel for the petitioner submitted that the prosecutrix daughter of respondent no. 3 and petitioner no.1 are major and there was love affair between the petitioner no.1 and daughter of respondent no. 3 and they both have performed marriage on 07.12.2016 at Vindhyachal Dhaam, Mirzapur, copy of which has been annexed as Annexure-1 to the writ petition. He next argued that the daughter of respondent no. 3 had voluntarily left her parental home and entered into matrimonial alliance with petitioner no.1 and that she was major, it cannot be said that any cognizable offence against the petitioner no.1 is made out, hence the impugned FIR is liable to be quashed. Learned counsel for the petitioner further submits that as the petitioner nos.1 daughter of respondent no. 3 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 Sections 363 and 366 I.P.C., cannot be approved of.
Per contra learned AGA as well as learned counsel for the private respondent submitted that the impugned FIR is not liable to be quashed on the basis of the submissions made by the learned counsel for the petitioner.
From the perusal of the record it appears that the victim girl is major. Moreover there appears to be no allegation of rape against the petitioner by the victim girl given in her statement under Section 164 Cr.P.C. Thus there appears no offence is disclosed against the petitioner.
The impugned FIR and all subsequent proceedings taken against the petitioner in pursuance thereof are hereby quashed.
There shall however be no order as to costs.
(Krishna Pratap Singh,J.) (Ramesh Sinha,J.) Order Date :- 26.2.2018 A.K.Verma