Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 11126 of 2019 Petitioner :- Subhash Verma And 8 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gyanendra Prakash Srivastava,Nishant Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the petitioners; the learned A.G.A. for the State- respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the FIR dated 16.03.2018 registered as Case Crime No. 57 of 2019 at P.S. Nagra, District-Ballia, under Sections 363, 366, 504, 506, 352 I.P.C. and section 7/8 Pocso Act.
At the outset, the learned counsel for the petitioners has submitted that the victim Gudiya along with Anuj Verma (the accused) has approached the Court by filing Crl. Misc. Writ Petition No. 9932 of 2019 for quashing of the impugned first information report and their petition has been disposed off by order dated 16.04.2019, which is extracted below:-
"Heard learned counsel for the petitioners and learned A.G.A. for the State.
This petition has been filed by the petitioners invoking the extraordinary jurisdiction of this Court with a prayer to quash the FIR dated 16.3.2019 vide Case Crime No. 57 of 2019 , under Sections 363/366/504/506/352 IPC read with section 3/4 Protection of Children from Sexual Offences Act, Police Station Nagra District Ballia.
It is submitted by the learned counsel for the petitioners that the petitioner no.2 is unnecessarily being harassed by the police personnel on account of false allegations made in the FIR. The petitioner no.1 was infatuated by the petitioner no.2 and performed marriage with the petitioner no.2 out of her own free will. According to the High School certificate, the date of birth of the petitioner no.1 is 5.7.2002. The date of birth shown in the High School Certificate is not correct. The petitioner no.1 is major and has performed marriage with petitioner no. 2 out of her own free volition. The life and liberty of the petitioner no.1 cannot be smashed stifling her longings. The petitioner nos.1 and 2 are living together and are leading cheerful marital life.
Per contra learned AGA contended that the first information report lodged against the petitioner no.2 cannot be aborted at the very inception. The petitioner no.1 is minor according to her date of birth shown in the High School Certificate. The High School Certificate is best proof of age which cannot be confronted at any stage. The consent of minor girl will not have any significance and the marriage performed with minor girl will be punitive in nature.
Regard being had to the facts and circumstances of the case and also from the bald perusal of the FIR, prima facie cognizable offence is made out the petitioner no.2 at this stage hence there is no ground for interfering with the FIR, therefore, the prayer for quashing the impugned FIR is refused.
From the perusal of the FIR it appears that there is dispute between the parties regarding her age. In these circumstances we direct petitioner no.1 to appear before the investigating officer concerned, who shall record her statement under Section 161 Cr.P.C The investigating officer shall move an application before the Chief Judicial Magistrate concerned for getting her statement recorded under Section 164 Cr.P.C . The Chief Judicial Magistrate concerned shall duly record the same. Thereafter the petitioner no.1 shall appear before the Chief Medical Officer Ballia for getting her medical examination done with regard to assessment of her age. The Chief Medical Office concern shall carry out the medical examination of petitioner no.1 and shall issue a certificate in this regard.The investigating officer shall provide due protection to the victim.
However, considering the submission made by the learned counsel for the petitioners and the learned AGA, it is directed that the petitioner no. 2 shall not be arrested in the aforesaid crime till the submission of the report under Section 173(2) Cr.P.C. subject to restraint that he shall cooperate with the investigation.
This writ petition is disposed of as above."
In view of the above, this petition is disposed off on same terms as Crl. Misc. Writ Petition No. 9932 of 2019.
Order Date :- 26.4.2019 Sunil Kr Tiwari