Radhey Shyam Sharma vs State Of U.P. And Another
2018 Latest Caselaw 704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 53								A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 10101 of 2018
 

 
Applicant :- Radhey Shyam Sharma
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Anil Tiwari,Preet Pal Singh Rathore
 
Counsel for Opposite Party :- G.A.,Adya Prasad Tewari,Ishan Deo Giri
 
And
 
Case :- APPLICATION U/S 482 No. - 14987 of 2018
 

 
Applicant :- Naseer Pahalwan And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Preet Pal Singh Rathore
 
Counsel for Opposite Party :- G.A.,Ishan Deo Giri
 

 
Hon'ble J.J. Munir,J.

1. An affidavit has been filed on behalf of opposite party no.3, Neeraj Tomar wherein he has stated that he undertakes not to intrude in any manner into the life of the applicant and opposite party no.2 and further stated that he has never wanted to interfere in any manner in the matrimonial life of the applicant and opposite party no.2. The said affidavit is admitted to record.

2. This Application under Section 482 Cr.P.C. along with connected Application under Section 482 Cr.P.C. no.14987 of 2018, both of which have been preferred by the accused of Case Crime no.239 of 2017 are heard together and are being disposed of by this common judgment and order.

3. Application u/s 482 Cr.P.C. no.10101 of 2018 filed by Radhey Shyam Sharma shall be treated to be the leading case.

4. Heard Sri Preet Pal Singh Rathore, learned counsel for the applicant, Sri Ishan Deo Giri, learned counsel for opposite party no.2, Sri R.S. Tripathi, Advocate holding brief of Sri A.P. Tripathi, learned counsel for opposite party no.3 and Sri Akhilesh Kumar Mishra, learned A.G.A. along with Sri Abhinav Tripathi appearing for the State.

5. The applicant of the present case Radhey Shyam Sharma, who is a matured man of 33 years and the prosecutrix, Ms. Anamika Tomar, decided to marry each other of their free will, a decision which they were competent to take under the law way back in the year 2014. They accordingly married in accordance with the Hindu rites in the Arya Samaj Mandir, Nagala, on 04.05.2017. The said marriage came to be registered on 21.05.2014.

6. For those who marry by the social norms and customs in society accepting a life partner chosen for them by others are assured, by the social values prevalent in society of at least a few days of celebration, happiness, revelry, and, of course in most cases expenditure beyond means for both families. It is often said that this kind of customary and socially approved marriages are marriages not between the two individuals but between two families. The considerations of choice are not personal compatibility between spouses but everything else under the sun that is irrelevant to a marriage. Foremost, as already said is that both for the bride and groom, it is a choice that others make; that choice is made on parameters of castes, language, religion; not just social and economic status of the bride and the groom, but the social and economic status of the past seven generations. Sadly, in many a case these well appointed marriages that have the approval, in fact, a proposal and disposal both by the senior most members in the bride's and groom's family turn out to be utter mismatches and end up on the rocks for the reason that the two partners in matrimony are absolutely incompatible individuals.

7. The applicant here chose not the socially approved and custom sanctioned way of marriage, but forayed to choose for himself that was reciprocated by the prosecutrix. Both of them, believed, and rightly so, under the law and the Constitution as major and adult citizens of India, they had a right to choose a life partner for themselves. Their experiment, however, brought them face to face with the harsh, bizarre and sad reality that there is still a big "value gap" or even a "value discord" between prevalent values in society and the constitutionally approved values that are manifested in the laws of the State. More would be said about this later.

8. For the applicant and the prosecutrix, who had married at the zenith of summer in the month of May, 2014, their mid summer nights' dream turned to a mid summer nights nightmare, with the brother of the prosecutrix, who is Sub Inspector of Police unleashing all comprehensible abuse of process of criminal law to redeem his perceived honour that his sister had forsaken by marrying in the first place of her own choice, and, in the second, across a caste barrier. The assault from the brother of the prosecutrix to uphold his honour, the social customs and norms came in torrents. The endevour to separate the couple by the brother of the prosecutrix has endured till this day through abuse of criminal law, abuse of process of court and abuse of public office held by him.

9. When this matter first came up before this Court seeking to quash the proceedings of Criminal Case no.926 of 2017, State Vs. Radhey Shyma Sharma (arising out of Case Crime no.239 of 2017), under Sections 376D, 377, 386, 406, 120B, 323, 504, 506, 325, 326 IPC, Police Station Ujhani, District Budaun as well as order taking cognizance passed in the said case on 14.06.2017 by the learned Chief Judicial Magistrate, Budaun, the following order was passed by this Court on 30.03.2018:-

"This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge sheet no. 1 dated 5.6.2017 registered as criminal case no. 926 of 2017 arising out of Case Crime No.239 of 2017 under sections 376(D), 377, 386, 406, 120B, 323, 504, 506, 325, 326 IPC P.S. Ujhani, District Badaun as well as cognizance taken thereon on 146.2017 by the court of Chief Judicial Magistrate, Badaun.

Sri Ishan Dev Giri has filed vakalatnama on behalf of opposite party no.2 along with short counter affidavit which are taken on record. The opposite party no. 2 is present in person who has been identified by her counsel Sri Ishan Dev Giri. She has made statement before the Court that the FIR dated 10.5.2017 registered as case crime no. 239 of 2017 under the aforementioned sections was lodged by her under pressure from her brother Vipul Tomar.

Learned counsel for the applicant contends that the opposite party no. 2 had married the accused applicant on 4.5.2014 in Arya Samaj Mandir Nagla in district Badaun. The marriage certificate is annexed. The said marriage was got registered on 21.5.2014 (registration certificate is annexed). Thereafter, the opposite party no. 2 had filed a complaint case no. 2137 of 2016 Anamika vs. Neeraj Tomar and others under sections 452, 323, 324, 504, 506 IPC. In her statement under section 200 Cr.P.C. dated 28.3.2016 she has clearly stated that she had married accused-applicant on 5.5.2014, the registration of marriage was to be done on 21.5.2014. On 7.2.2016 at about 3.00 p.m. Neeraj, Vipul, Rajguru Tomar (All brothers of opposite party no.2) came to her home and started abusing and beating her and had given threat to her husband for being killed. Thereafter, one of her brother Rajguru Tomar lodged an FIR against her husband under section 363, 366 IPC alleging that they had abducted her sister, thereafter the opposite party no. 2 and her husband (accused-applicant) had filed a writ petition no.51626 of 2016 (Anamika Tomar vs. State of U.P and others) in which it was mentioned that they were major and had solemnized their marriage in accordance with Hindu rites on 4.5.2014 in Arya Samaj Mandir Nagla in district Badaun which was subsequently registered on 21.5.2014. It was further mentioned that it was an inter-caste marriage so both petitioners were under apprehension of honor killing. This Court had granted them protection vide order dated 26.10.2016. Thereafter, Criminal Misc. Writ Petition No.23311 of 2016 (Smt. Anamika Tomar and 4 others vs. State of U.P. and 3 others) was filed seeking quashing of FIR dated 18.10.2016 registered as Case Crime No.630 of 2016 under sections 363, 366 IPC, Police Station Ujhani, District Badaun which was quashed by this Court vide order dated 10.2.2017. They performed social marriage thereafter on 29.4.2017. Thereafter on the pretext of first 'Bidai', the family members of the opposite party no. 2 had invited the accused-applicant and his family members and there they handed over the accused-applicant to the police and detained the opposite party no.2. Thereafter the police recorded statement of her brother Vipul Tomar in which he gave statement in support of the FIR in Case Crime No.239 of 2017, P.S. Ujhani in which he gave incriminating statement in support of the prosecution case as mentioned in FIR. The opposite party no.2 was also presented before the court of Chief Judicial Magistrate for her statement to be recorded under section 164 Cr.P.C and it was observed by the Magistrate that she was not mentally fit to make statement under the said section and accordingly, she was directed to be kept in 'Nari Niketan' in safe condition to be presented after three days for recording her statement and in the meantime, she was also directed not to be allowed to meet any other person but on the same day, the Investigating Officer as well as opposite party no.2 made an application before the Chief Judicial Magistrate that her statement should be recorded on the same day, therefore, the earlier order of the Magistrate was modified and instead of direction for her to be kept in 'Nari Niketan', she was directed to be kept in Mahila Thana for being presented on 18.5.2017 for recording her statement. Thereafter, on 18.5.2017 her statement was recorded in which she has supported the version of the prosecution given in the FIR.

It is argued by the learned counsel for the applicant that this change in order dated 17.5.2017 was under influence of her brothers. Further, it is argued that the date of birth of the opposite party no. 2 is recorded in high school certificate as 10.9.1987, therefore, she was major on the date of occurrence. It is further argued that after release on bail in September 2017 of the accused-applicant, the opposite party no. 2 has started living with her husband and is now pregnant of eight weeks. Ultrasound report is annexed. It is further argued that there is no dispute between them and looking to the fact that this is a matrimonial dispute, the proceedings in the present criminal case need to be quashed in view of law laid-down in Gian Singh vs. State of Punjab and another (2012) 10 SCC 303 as no useful purpose would be served in keeping the proceedings pending.

From the side of the opposite party no. 2 Sri Ishan Dev Giri has stated that the opposite party no. 2 is major and her date of birth is 10.09.1987. She has solemnized her marriage with the accused-applicant in Arya Samaj Mandir, Nagla on 4.5.2014 (marriage certificate is annexed). The said marriage was solemnized in accordance with Hindu rites following Saptpadi and Kanyadan of her free will without there being any fear or undue influence, compulsion etc. The said marriage was registered on 21.5.2014. Copy of the registration certificate is annexed. One of the brothers of the opposite party no. 2 is Sub Inspector (Police) who was annoyed due to this inter-caste marriage and because of that a fatal attack was made upon her and family members of her husband on 7.2.2016, concerning which a complaint case no.2137 of 2016 was lodged by her. Her statement was recorded under section 200 Cr.P.C. After two years of the marriage, one of the brothers of opposite party no.2 lodged an FIR on 18.10.2016 against her husband and other friends which was registered as Case Crime NO.630 of 2016 under section 363, 366 IPC at P.S. Ujhani, District Badaun. Opposite party no. 2 had no knowledge of the said FIR having been written by her brother. On the other hand, she and her husband were under the apprehension of their honour killing and hence they had filed Crl. Misc. Writ Petition No.51626 of 2016 before this Court in which the opposite party no. 2 and her husband had filed a joint affidavit on 26.10.2016. The court had recorded her statement and had granted protection to both of them. Against the FIR dated 18.10.2016, the opposite party no. 2 and her husband had filed Crl. Misc. Writ Petition No.23311 of 2016 before this Court which was allowed vide order dated 10.2.2017 and the FIR dated 18.10.2016 was quashed. Further, it is mentioned that after the said judgment dated 10.2.2017, family members of the opposite party no. 2 accepted the marriage and participated in social marriage solemnized by the opposite party no. 2 and her husband. After the said social marriage, the parents of the opposite party no. 2 called the accused-applicant on the pretext of her first 'Bidai' to their home and there they handed over the accused-applicant to the police. Since 3.5.2017 onwards the opposite party no. 2 was continuously in custody of her brother. Wherever she was taken, she had made statement according to their choice while her husband remained in jail throughout. Therefore, under compelling circumstance the opposite party no. 2 made statement against the applicant-accused and other co-accused. It is further mentioned that the scribe of the FIR was brother of the opposite party no.2 who obtained her signature on the said FIR under force and threat to her life. In the first week of December, 2017, the opposite party no. 2 got an opportunity to unite with her husband and started residing with him and is fulfilling marital obligations. As a result of her cohabitation with her husband, she is pregnant by 10 weeks which may be verified by perusal of ultrasound report and other prescriptions. Since after first week of 2017, her brothers are chasing her and her husband on a look out for their honour killing. In the Crl. Writ Petition No.5149 of 2018 filed before this Court the order dated 6.2.2018 has been passed wherein notices were issued to the brothers of the opposite party no.2 which was duly served upon them but they did not appear nor did they file any response. The stay order dated 6.2.2018 is in existence. The factual position is that the applicant as well as the opposite party no. 2 are legally weeded husband and wife and are residing under the same roof and want to live in future as husband and wife. The opposite party no. 2 is in family way, so no useful purpose would be achieved by trying the accused applicant in the present criminal case.

Heard learned counsel for the applicant, learned counsel for opposite party no.2, learned A.G.A. and perused the record.

According to FIR, the first informant Anamika, in FIR dated 10.5.2017, has mentioned that two years back Radhey Shyam Sharma accused-applicant had made obscene video and after administering her some stupefying substance in the cold drink had threatened that the said video would be uploaded on the face book and Internet. Under this threat, he used to take money from her. He had taken Rs.5,000/- and thereafter Rs.10,000/-. She could not tell about this to any one because of fear of defamation. Under the threat of making video public, he forcibly married her and thereafter giving threat that he would make this obscene video public if she would not do his bidding, he got an amount of Rs.7,00,000/- in cash and other jewellery items mentioned in the FIR, brought by her and with the help of co-accused named in the FIR, she was taken away under the said threat to Rudrapur. There also she was given some intoxicating pills and under influence of said drug she was taken to Allahabad and again was given threat of making the said video public and threatened to kill her brothers. She was made to stand in Court and she kept on saying yes-yes due to fear. From there Radhey Shayam brought him about two and half months back to Ujhani in the vacant house of Vineet Yadav where his brother Shambhu, friend Vineet, Nasir and Rajpal tortured her. Radhey Shaym used to indulge in unnatural sex with her and used give various tortures. His real brother Shambhu and above three friends committed gang rape upon her. All this was being done with the consent of Radhey Shyam.

It may be pointed out here that in FIR there are several other accused also. What evidence has been gathered by the police against them to prove the case under the sections mentioned above is not made clear during the argument by the learned counsel for the applicant nor the prosecution has made any statement with regard to the evidence on record against the other co-accused. In such a situation, how this case could be treated to be covered by the law laid down in Gian Singh' case, is not clear. Learned A.G.A. is directed to file an affidavit as to whether, apart from evidence of the opposite party no. 2, other witnesses have also supported the prosecution case, supporting the allegations made against other co-accused persons.

List on 16.4.2018."

10. A counter affidavit was filed on behalf of the State by one Rajiv Kumar, a Sub-Inspector of Police posted at Police Station Ujhani, District Budaun. The said affidavit does not at all disclose, what evidence was collected by the police to prove a case under the Sections mentioned in the charge sheet against the applicant Radhey Shyam, and, the other co-accused, who are applicants in the connected matter, which the State was required to bring on record before this Court vide order dated 30.03.2018. The State, in particular, was directed to file an affidavit as to whether apart from the evidence of the prosecutrix, there was evidence of other witnesses also in support of the prosecution case, and, to place the same on record. The counter affidavit filed on behalf of the State has not at all brought any such evidence on record. It has only parroted the prosecution case asking it to be believed because it is the ipse dixit of the Investigating Officer.

11. This Court is constrained to hold that the counter affidavit dated 03.05.2018 filed on behalf of the State does not comply with the order of this Court dated 30.03.2018, and, for that reason, does little service to the prosecution case which, in any case, as would presently appear, is nothing more than a misdirected personal attack on the applicant and the other co-accused on account of the sister of opposite party no.3 marrying the applicant, as already said, contrary to social norms.

12. On 08.05.2018, this Court passed a further order that is again quoted in extenso:-

"This is an application under Section 482 Cr.P.C challenging proceedings arising out of Case Crime No.239 of 2017, under Sections 376 (D), 377, 386, 406, 120B, 323, 504, 506, 325, 326 IPC, P.S. Ujhani, District Budaun, which is now pending as Criminal Case No.926 of 2017 before the Court of Chief Judicial Magistrate, Budaun in proceedings for committal.

The submission of the learned counsel for the applicant Radhey Shyam Sharma is that the sole applicant Radhey Shyam Sharma and opposite party no.2 Km. Anamika, both of whom are present before this Court and have been identified by their respective counsel (Ms. Anamika has been identified by Shri Ishan Deo Giri, Advocate) have married each other in the year 2014; their marriage has been registered on 21.05.2014. Thereafter an F.I.R was lodged purportedly by opposite party no.2, Ms. Anamika D/o Chandrapal Singh as case crime no.0630 of 2016, under Sections 363, 366 IPC, P.S. Ujhani, District Budaun. This F.I.R has been quashed by a Division Bench of this Court vide judgment and order dated 10.02.2017 passed in Criminal Misc. Writ Petition No.23311 of 2016.

While quashing the F.I.R, the Division Bench of this Court took note of the fact that both parties have married each other and were of very mature years. The prosecutrix was aged about 30 years as per her High School Certificate and her husband who is the applicant here was aged about 33 years.

After this F.I.R was quashed, a fresh FIR has came to be lodged purporteding to be signed by opposite party no.2 giving rise to this case, this time not only against her husband but a number of other persons who are applicants in Application U/s 482 Cr.P.C.No.14987 of 2018, to wit, Naseer Pahalwan, Shambhu, Rajpal and Vineet Yadav; the offences alleged in this FIR are under Sections 376-D, 377, 386, 406, 120-B, 323, 504, 506, 325, 326 I.P.C. The present charge-sheet has been filed in connection with the FIR last lodged purportedly by opposite party no.2, Ms. Anamika after the first one under Sections 363, 366 IPC was quashed by this Court vide judgment and order dated 10.02.2017.

The charge sheet filed in the present case shows that the prosecutrix who is present in Court made a statement under Section 164 Cr.P.C. in support of the prosecution. The Court upon a pointed query to as to how a fresh F.I.R with such allegation came to registered, whereas the [sic] prosecutrix says that she has married the applicant Radhey Shyam Sharma and is living with him now as his wife, she has stated before this Court that this FIR is the handiwork of her brother who is a Sub Inspector of Police, named Neeraj Tomar presently posted at P.S. Billari, District Moradabad. She says that under constant threat of violence from [sic] him and doing the couple to death she made a statement under Section 164 Cr.P.C and signed the first information report, giving rise to the present charge-sheet, which is scribed by another brother of hers, Bipul Kumar at the bidding of Sub Inspector Neeraj Tomar.

This case discloses a prima facie case of a death threat extended to his sister by S.I. Neeraj Tomar by misusing his official position, and that too, for an object that militates against her life and liberty.

Learned counsel for the applicant is directed to implead Shri Neeraj Tomar S/o Shri Chandra Pal Singh, posted as Sub Inspector at P.S. Billari, District Moradabad as opposite party no.3.

Issue notice to opposite party no.3 Neeraj Tomar to appear before this Court on 18.05.2018 at 2 P.M.

Put up in the additional cause list on 18.05.2018 at 2 P.M.

The Senior Superintendent of Police, Moradabad is ordered to ensure that Sub Inspector Neeraj Tomar posted as P.S. Billari District Moradabad shall remain present before this Court in compliance of this order without fail.

Till the next date of listing, further proceedings in Criminal Case No.926/2017 ( arising out of case crime 239 of 2017) under section 376 (D), 377, 386, 406, 120B, 323, 504, 506, 325, 326 IPC, P.S. Ujhani District Budaun shall remain stayed.

It is directed that on next date of listing opposite party no.2 Km. Anamika and the applicant Radhey Shyam Sharma will also remain present in Court.

Let a copy of this order be forwarded by the Registrar General to the S.S.P., Moradabad for immediate compliance in urgent mode by fax, e-mail and other available resources."

13. In compliance with the order dated 08.05.2018, the brother of opposite party no.2, Sub-Inspector Neeraj Tomar appeared in the Court in person. Sri R.S. Tripathi, Advocate appeared on his behalf. He has filed an affidavit styled as affidavit on behalf of opposite party no.3, inasmuch as, Neeraj Tomar has been impleaded as opposite party no.3 in compliance of the order of this Court dated 08.05.2018.

14. In the affidavit dated 18.05.2018 filed on behalf of Neeraj Tomar, opposite party no.3, paragraphs no.2, 3 & 4 read as under:-

"2. That the deponent most respectfully submits that he has no concern either with the applicant or with the opposite party no.2 and he undertakes that he wanted never interfere in eany manner in the matrimonial life of the applicant and opposite party no.2.

3. That it is further submitted that even in future the deponent wanted never came as an impediment in the way of the applicant and the opposite party no.2 and further undertakes not to infringe in any manner the right to life and liberty of the applicant and opposite party no.2.

4. That though the deponent has never interfered in matrimonial life of the applicant and the opposite party no.2, yet he is tendering his unqualified and unconditional apology."

15. In regard to the right of a person and his/ her freedom to choose whom he/ she wants to marry with no interference in that decision of his/ hers being made by the society, community, family or even the State, particularly, on account of differences in caste, creed, religion or the like was held to be the right of any adult or a major in Lata Singh vs. State of U.P.1 that incidentally on facts related to an inter-caste marriage between two Hindus like the case in hand. Castigating the prosecution of couples in such marriages, including initiation of criminal prosecution to browbeat the couple into parting ways under threat of suffering that prosecution, their Lordships of the Supreme Court held:-

"14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.

15. We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.

16. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

18. We sometimes hear of "honour" killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism."

16. Incidentally, the decision in Lata Singh (supra) arose from an inter caste marriage and a criminal prosecution that was an abuse of process of criminal law to abort that marriage where in paragraph 17(supra) the Administration and Police Authorities throughout the country were directed to see to it that any boy or girl who is a major and undergoes inter-caste or an inter religious marriage to a person of his/ her choice, the couple is not harassed by anyone or subjected to threats or acts of violence and anyone who gives such threats or harasses or commits act of violence either himself or at his instigation, is taken to task by instituting criminal prosecution by the police against such person and further stern action is taken against such person as provided by law.

17. It is, indeed, shocking that in the present case it is a member of the Police Force, who has acted contrary to the directions of the Hon'ble Supreme Court addressed to the administration and police in this State. This Court is constrained to say that the Superintendent of Police, Budaun under whose administrative control an incident of this kind has happened is no less to blame. It is not possible, that a member of the Police Force working in the police under the control of the Superintendent of Police, Budaun would be going about harassing and prosecuting his sister, in connection with a marriage of her choice, because it is against the social or family values of the police officer concerned, or his personal beliefs going to the extent of causing criminal prosecutions to be launched against the man marrying his sister as also his friends, and, all that would remain unknown to the Superintendent of Police, Budaun. Lata Singh (supra) was a decision by the Hon'ble Supreme Court rendered in the year 2006, but the directions to the police and administrative authorities carried in paragraph 17 (supra) cannot be held to have lost force by passage of time.

18. The judgments of Courts, their directions and the law laid down by Superior Courts, particularly, the Hon'ble Supreme Court does not loose its efficacy or its binding character with passage of time on all authorities, civil and judicial in the territory of India, who are mandated by Article 144 of the Constitution to act in aid to the Supreme Court. The only way that orders, directions or law declared by the Supreme Court may loose efficacy is when a Bench of larger number of their Lordships overrule themselves or in certain situations when the statutory context changes.

19. Here, far from there being a view of their Lordships of the Supreme Court subsequent in point of time or by a larger Bench overruling the directions in Lata Singh (supra), those directions have been strengthened and made far more broad based in Shakti Vahini vs. Union of India (UOI) and others2, which is a decision rendered in a writ petition not by an individual aggrieved, but by a voluntary organization in public interest, where the background of the dispute fell for their Lordships' consideration, and, cannot be better described than in the words of their Lordships, that say:-

"3. The petitioner-organization was authorized for conducting Research Study on "Honour Killings in Haryana and Western Uttar Pradesh" by order dated 22.12.2009 passed by the National Commission for Women. It is averred that there has been a spate of such honour killings in Haryana, Punjab and Western Uttar Pradesh and the said trend is on the increase and such killings have sent a chilling sense of fear amongst young people who intend to get married but do not enter into wedlock out of fear. The social pressure and the consequent inhuman treatment by the core groups who arrogate to themselves the position of law makers and impose punishments which are extremely cruel instill immense fear that compels the victims to commit suicide or to suffer irreparably at the hands of these groups. The egoism in such groups getting support from similarly driven forces results in their becoming law unto themselves. The violation of human rights and destruction of fundamental rights take place in the name of class honour or group right or perverse individual perception of honour. Such individual or individuals consider their behaviour as justified leaning on the theory of socially sanctioned norms and the legitimacy of their functioning in the guise of ethicality of the community which results in vigilantism. The assembly or the collective defines honour from its own perception and describes the same in such astute cleverness so that its actions, as it asserts, have the normative justification.

4. It is contended that the existence of a woman in such an atmosphere is entirely dependent on the male view of the reputation of the family, the community and the milieu. Sometimes, it is centered on inherited local ethos which is rationally not discernible. The action of a woman or a man in choosing a life partner according to her or his own choice beyond the community norms is regarded as dishonour which, in the ultimate eventuate, innocently invites death at the cruel hands of the community prescription. The reputation of a woman is weighed according to the manner in which she conducts herself, and the family to which the girl or the woman belongs is put to pressure as a consequence of which the members of the family, on certain occasions, become silent spectators to the treatment meted out or sometimes become active participants forming a part of the group either due to determined behaviour or unwanted sense of redemption of family pride."

20. During the course of the hearing, responses from different State Governments across the country including the Central Government were sought. The response of the State of Uttar Pradesh is recorded in the judgment, reads thus:-

"16. The State of Uttar Pradesh has filed two counter affidavits wherein it is stated that it is the primary duty of the States to protect the Fundamental Rights enshrined and guaranteed under the Constitution of India. It is further contended that although there is no specific legislation to regulate and prevent "honour killing", yet effective measures under the present law are being taken by the State to control the same. The said measures are in the nature of directions and guidelines to the law enforcement agencies. Further, the State of Uttar Pradesh has brought on record that there have been no reported cases of "honour killing" or "social ostracizing" in the State for the period from 01.01.2010 till 31.12.2012. Yet, time and again, directions are being given to the police stations to keep a close watch on the activities and functioning of the Khaps. The State of Uttar Pradesh has acceded to comply with any directions which this Court may issue."

21. Their Lordships in Shakti Vahini (supra) considered inputs from all sources including the draft bill by the Law Commission to put down the menace amongst others, of Khap Panchayats. Their Lordships endorsed the decision in Lata Singh (supra) referred to hereinbefore, and, which as earlier said carries directions on the issue to the State of Uttar Pradesh, to the civil and police authorities in this State. In addition, the Hon'ble Supreme Court also took note of an earlier decision in Arumugam Servai vs. State of Tamil Nadu3 in the following words:-

"32. In Arumugam Servai v. State of Tamil Nadu, the Court referred to the observations made in Lata Singh's case and opined:-

"12. We have in recent years heard of "Khap Panchayats" (known as "Katta Panchayats" in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with (2011) 6 SCC 405 the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

33. After so stating, the Court directed the administrative and police officials to take strong measures to prevent such atrocious acts. If such incidents happen, apart from instituting criminal proceedings against those responsible for the atrocities, the State Government was directed to immediately suspend the District Magistrate/ Collector and SSP/SPs of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them. Be it noted, in the said case, the Court commented on the appellants that they had behaved like uncivilized savages and deserved no mercy."

22. Likewise their Lordships quoted with approval their decision in Bhagwan Dass vs. State (N.C.T. of Delhi)4 besides earlier decisions in re into India Women says Gang-raped on Orders of Village Court published in Business & Financial News dated 23.1.20145; Vikas Yadav vs. State of Uttar Pradesh and others6 and State of U.P. vs. Krishna Master and others7. What took their Lordships in Shakti Vahini (supra) to their ultimate conclusions to issue general directions in curbing the menace of honour killings arising from the exercise of the liberty of individuals to marry a person of their choice is expressed in the following words:-

"48. Having noted the viciousness of honour crimes and considering the catastrophic effect of such kind of crimes on the society, it is desirable to issue directives to be followed by the law enforcement agencies and also to the various administrative authorities. We are disposed to think so as it is the obligation of the State to have an atmosphere where the citizens are in a position to enjoy their fundamental rights. In this context, a passage from S. Rangarajan v. P. Jagjivan Ram and others MANU/SC/0475/1989: (1989) 2 SCC 574 is worth reproducing:-

"51. We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award. We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film, is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.

We are absolutely conscious that the aforesaid passage has been stated in respect of a different fundamental right but the said principle applies with more vigour when the life and liberty of individuals is involved. We say so reminding the States of their constitutional obligation to comfort and (1989) 2 SCC 574 nurture the sustenance of fundamental rights of the citizens and not to allow any hostile group to create any kind of trench in them."

23. In Shakti Vahini (supra) the Hon'ble Supreme Court, after a most broad based and far reaching analysis of this peculiar crime, which is an individual and social attitude, proceeded to issue comprehensive directions divided into three categories as preventive, remedial and punitive steps. The said directions run as under:-

"53. Mr. Raju Ramachandran, learned senior counsel being assisted by Mr. Gaurav Agarwal, has filed certain suggestions for issuing guidelines. The Union of India has also given certain suggestions to be taken into account till the legislation is made. To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and punitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of (2013) 14 SCC 672 the concerned States to add further measures to evolve a robust mechanism for the stated purposes.

I. Preventive Steps:-

(a) The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.

(b) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer Incharge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter- religious marriage within their jurisdiction comes to their notice.

(c) If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.

(d) On receiving such information, the Deputy Superintendent of Police (or such senior police officer as identified by the State Governments with respect to the area/district) shall immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting. Additionally, he should issue appropriate directions to the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering.

(e) Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action.

(f) If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the constitutional goal of social justice and the rule of law.

(h) There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence.

II. Remedial Measures:-

(a) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.

(b) Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.

(c) Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate

(i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and (ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police.

(d) The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.

(e) The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.

(f) The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.

III. Punitive Measures:-

(a) Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.

(b) In terms of the ruling of this Court in Arumugam Servai (supra), the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

(c) The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.

(d) These Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.

(e) The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional court so as to ensure expeditious disposal thereof."

24. In the present case what bemuses the Court is the disconcerting feature that where so much of obligations to enforce the three categories of various directions to remedy this situation of honour killing, and, to uphold the right of adults to marry a person of their choice, are placed on the shoulders of the Superintendent of Police, a member of the police force subordinate to the Superintendent of Police, Budaun, that is to say, opposite party no.3 has violated the directions of the Hon'ble Supreme Court in Shakti Vahini (supra) and, also as earlier said, in Lata Singh (supra) with impunity in the case of his sister. This Court would be failing in its duty if the directions in Shakti Vahini (supra) that have been elaborately quoted hereinabove are not brought to the notice of the Superintendent of Police, Budaun, who would do well to act in the matter in accordance with those directions.

25. So far as the impugned charge sheet is concerned, the same is based on an FIR that was purportedly lodged by opposite party no.2, who has indicated in Court on affidavit her clear stand that she never lodged that FIR on her own but did so under the pressure of her family members, in particular, her brother, Sub-Inspector Neeraj Tomar. It is said that Neeraj Tomar went to the extent of entering her matrimonial home on 07.02.2016 at 3:00 p.m. in the evening while she was cooking, along with the other brothers, Vipul and Raj Guru carrying country-made pistols, abused her in filthy words, and, upon hearing the commotion when her husband and others came to her rescue, the three brothers threatened to do the couple to death with their country-made pistols for their act in dishonouring her family. In this regard, opposite party no.2 has filed Complaint Case no.2137 of 2016, under Sections 452, 323, 324, 504, 506 IPC, Police Station Ujhani, District Budaun against each of her three brothers including opposite party no.3, Neeraj Tomar, which is pending before the Court of Chief Judicial Magistrate, Budaun.

26. It was under those circumstances that in extreme fear of loosing her life and her husband, the First Information Report giving rise to the present prosecution was lodged. The impugned charge sheet that has been filed based on an FIR lodged under coercion, is the result of an investigation that is not only biased, unfair, tainted and lackadaisical, but in fact one that defeats the directions of the Hon'ble Supreme Court in Lata Singh (supra) and Shakti Vahini (supra). It is apparently the most brazen abuse of process of Court which again this Court is constrained to observe, the Superintendent of Police, Budaun has permitted to happen right before his eyes, ignoring the directions of the Hon'ble Supreme Court in Lata Singh (supra) assuming that their Lordships' decisions in Shakti Vahini (supra) came on a subsequent date. What makes the impugned prosecution all the more tainted in this case is the fact that the first endeavour at abuse of process of criminal law by opposite party no.3 was a First Information Report lodged through another brother, Raj Guru Tomar on 18.10.2016 giving rise to Case Crime no.630 of 2016, under Sections 363, 366 IPC, Police Station Ujhani, District Budaun, which was challenged by the applicant Radhey Shyam Sharma and opposite party no.2, his wife Smt. Anamika Tomar, jointly through Criminal Misc. Writ Petition no.23311 of 2016 before this Court, which came to be quashed by a judgment and order dated 10.02.2017 in the following terms:-

"Learned AGA has not been able to demonstrate that either the prosecutrix Smt. Anamika Tomar was minor on the date of the incident or that she had been kidnapped or abducted by the petitioner no. 2 and 5.

In view of the above it cannot be said that the petitioner nos. 2 to 5 have committed any cognizable offence. The writ petition accordingly succeeds and is allowed.

The impugned FIR and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed."

27. This Court finds that the impugned charge sheet as said above still more tainted because the quashing of one FIR that opposite party no.3 caused to be lodged against the applicant and opposite party no.2 by this Court at the instance of the applicant and opposite party no.2, did not gracefully accept the judgment as a law abiding citizen and the member of a disciplined force. He also did not cause the said judgment to be challenged or himself challenge it with leave of Court by invoking remedies as he might have been advised before the Supreme Court. Instead, the third opposite party caused a different FIR to be lodged, this time by his sister (opposite party no.2) and the wife of applicant through coercion and threat under the circumstances that are best spoken of by opposite party no.2, Smt. Anamika Tomar in her Counter Affidavit dated 08.05.2018 filed in the present Application, thus:-

"14. That when the aforesaid judgment dated 10.2.2017 came in the knowledge of the brothers of the answering respondent and her other parental family members. Then they revived friendly and bilateral relation with the answering respondent and her marital home. In between on 29.4.2017, the co-accused Radhey Shyam and answering respondent solemnized their social marriage.

15. That after the social marriage of answering respondent and her husband, her parental family members carried to the answering respondent at the pretext of her first Vidai to her parental home. They also gave an undertaking and promise to return the answering respondent to her husband after sometime. The answering respondent and her husband believed at the promise of her parental family members and she went with her brothers.

16. That thereafter the brothers of answering respondent and their family members detained her in their home and called to her husband at the pretext of, to carry backs his wife i.e. the answering respondent to her marital home. The husband of the answering respondent believed at the statement of the brothers of the answering respondent and reached at the home of her brothers. The brothers of the answering respondent did marpeet with her and her husband and lodge F.I.R. dated 10.5.2017. They also handed over to the husband of the answering respondent to the Police. This F.I.R. Dated 10.5.2017 is the subject of the present case.

17. That it is pertinent to mention at this stage that in the F.I.R. dated 10.5.2017 an allegation of administering alcoholic cold drink preparing obscene video and photograph as well as to realize and extract money under the threat and fear to display and publish the same at website has been levelled. Except it, under the abovenoted threat and allegation of bringing Rs. 7 lacs, golden ornaments and jewelary by the answering respondent from her parental home has also been levelled. In the said F.I.R. an allegation of committing forceful sexual intercourse as well as unnatural sex, including marpeet has also been levelled. But infact neither any obscene video clip and photographs of the answering respondent was prepared by the applicants and her husband. They also never took any money including golden jewellery and ornaments from her. They never did any marpeet, natural and unnatural sexual intercourse in any manner with her the each and every content of the F.I.R. is quite false and baseless. The F.I.R. in question has been scribed by the brothers of the answering respondent, in the writing and signature of Vipul Kumar. The brothers of the answering respondent have took her signatures at the said F.I.R. forcefully under the threat and fear to her life.

18. That after 3.5.2017 and onwards, the answering respondent was continuously in the custody of her brothers. So wherever they carried her, she gave statement in accordance with their choice. Because of the husband of the answering respondent was in Jail, on the other hand, the life of the answering respondent was in danger. She was under the apprehension of her honour killing from the hands of her brothers and other parental family members. Because of their was none other except her old widow mother-in-law in her marital home to take her custody and to provide protection to her. So under the compelling circumstances, the answering respondent gave statement against her husband and other co-accused, which are not deemed to be her free, independent and deliberate statements. But the same have been given by her under the force, compulsion, pressure, undue influence and duress of her brothers.

19. That in fact no such incident as alleged in the F.I.R. has been committed with her either by her husband or by other co-accuse. The scriber of the F.I.R. is the brother of the answering respondent namely Vipul Kumar, he himself and other brothers of the answering respondent have put her signature at the abovenoted F.I.R. forcely under the threat and fear to her life. So the answering respondent was compelled to do everything in accordance with their directions and choice.

20. That now the husband of the applicant has already been enlarged on bail by this Court on 22.9.2017. A photo copy of the bail order dated 22.9.2017 is being filed herewith and marked as Annexure no. SCA-1 to this affidavit.

21. That now in the Ist week of December 2017, the answering respondent once again had a chance and came-up to her husband i.e. the co- Radhey Shyam and is residing with him as his wife, she is also fulfilling marital obligations. Their marriage is duly being consumed by each other. AS a result of her cohabitation with her husband, she is pregnant by 10 weeks. The aforesaid fact may better be verified from the perusal of Ultrasound report and other prescription papers of answering respondent. A Photostat copy of the Ultrasound report and other prescription papers is being filed herewith and marked as Annexure No. SCA-2 to this affidavit.

24. That the answering respondent is the victim and star witness in the abovenoted case. She don't want to appear in the witness box to record her statement as prosecution witness against the applicant. Because of the abovenoted case is quite false and baseless. The story set up in the version of F.I.R. is planted and motivated one for the purpose of this case. Because of no such incident as narrated in the F.I.R. has ever taken place."

28. In the entire conspectus of facts, this Court is of considered opinion that there could be no more palpable abuse of process of court, if the impugned charge sheet is not quashed to secure the ends of justice. So far as the applicants of connected Application u/s 482 Cr.P.C. no.17987 of 2018 are concerned, they have been dragged in by opposite party no.3 on account of their association with Radhey Shyam Sharma. Thus, whatever holds true for the applicant here, also holds good for each of the applicants of Application u/s 482 Cr.P.C. no.14987 of 2018.

29. In the result these Applications succeed and are allowed. The impugned charge sheet dated 05.06.2017 giving rise to proceedings of Criminal Case no.926 of 2017, State vs. Radhey Shyam (arising out of Case Crime no.239 of 2017), under Sections 376D, 377, 386, 406, 120B, 323, 504, 506, 325, 326 IPC, Police Station Ujhani, District Budaun, pending in the court of Chief Judicial Magistrate, Budaun are hereby quashed.

30. It is directed that an entry shall be made in the General Diary of Police Station Ujhani, District Badaun that proceedings of Case Crime no.239 of 2017 aforesaid stand quashed under orders of this Court. The learned Chief Judicial Magistrate, Budaun shall ensure that the aforesaid part of this direction is carried out in the records of Police Station concerned.

31. Let a copy of this order be certified to the Chief Judicial Magistrate, Budaun by the office forthwith.

Order Date :- 21.5.2018

Anoop/Deepak