Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 6552 of 2019 Petitioner :- Smt. Shashilata And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Kumar Sharma Counsel for Respondent :- G.A.,Poonam Srivastava
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 01.03.2019, registered as Case Crime No.135 of 2019, under Section 366 I.P.C, Police Station Kasganj, District Kasganj.
The allegation in the impugned F.I.R., which has been lodged by father of the victim, is that the victim-Kumari Shashilata, whose date of birth is 27.08.2000, has been missing from the house with jewellery, cash, etc. In the F.I.R suspicion has been expressed against Sanju @ Mohar Singh for having enticed away informant's daughter.
On 11.03.2019, after considering the submissions of the learned counsel for the petitioners, following order was passed :-
"Heard learned counsel for the petitioners, learned AGA for the State- respondents and perused the record.
Contention of learned counsel for the petitioners is that the victim- Shashilata is an adult, and her date of birth as per high school certificate is 27.8.2000, and she has voluntarily entered into relationship with the petitioner no. 2 and, therefore, no offence is disclosed.
Sri P. K.Sharma, learned counsel for the petitioners has produced victim Shashilata (petitioner no. 1) before us and she has affirmed the aforesaid contention.
Ms. Poonam Srivastava, learned counsel has accepted notice on behalf of respondent no. 3. Learned AGA has accepted notice on behalf of state respondents. They pray for and are allowed three weeks time to file counter affidavit. Two weeks, thereafter, shall be for the petitioners to file rejoinder affidavit.
List this writ petition on 26.4.2019. On the next date, petitioner no. 1 as well as respondent no. 3 shall be present before the court in person.
Till the next date of listing or till the submission of the police report under Section 173(2) Cr.P.C., whichever is earlier, the arrest of the petitioners in Case Crime No. 135 of 2019, under Section 366 IPC, P.S. Kasganj, District Kasganj, shall remain stayed, subject to cooperation of the petitioners in the investigation.
It is made clear that this Court has not stayed the investigation of the aforesaid case."
Today, when the matter was called out in the revised list, Ms. Poonam Srivastava, learned counsel for the respondent no.3, was not present.
The learned counsel for the petitioners is present and has stated that victim-Shashilata is also present and she is willing to get her statement recorded.
As no one is present from the informant's side, if we proceed to record the statement of the victim, a dispute may be raised later in respect of her identity.
Under the circumstances, we deem it appropriate to dispose of this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Smt.Shashilata) before the court of Chief Judicial Magistrate, Kasganj by or before 13th May, 2019. Upon her production, the Chief Judicial Magistrate, Kasganj shall proceed to record the statement of Smt.Shashilata 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 13th 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.