Smt. Salika Praveen & Ors. vs State Of U.P. Thru Prin. Secy. ...
2021 Latest Caselaw 6658 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9
 
Case :- MISC. BENCH No. - 12676 of 2021
 
Petitioner :- Smt. Salika Praveen & Ors.
 
Respondent :- State Of U.P. Thru Prin. Secy. Home, Lko. & Ors.
 
Counsel for Petitioner :- Anand Pal Singh
 
Counsel for Respondent :- G.A.,Anoop Kumar Upadhyay,Vijay Kumar Tiwari
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Ajai Kumar Srivastava-I,J.

Heard learned counsel for the petitioners, learned A.G.A. representing the State-respondents and Sri Anoop Kumar Upadhyay, learned counsel representing the respondent No.4-complainant.

By means of this writ petition filed under Article 226 of the Constitution of India, the petitioners have assailed the First Information Report, dated 09.06.2021, lodged at Case Crime No.0128 of 2021, under Section 363 I.P.C., Police Station Paraspur, District Gonda.

Learned counsel for the petitioners has stated that on the basis of date of birth of petitioner No.1 recorded in her Aadhar Card, she is 20 years of age, whereas as per High School Certificate issued by Board of High School and Intermediate Education, U.P., she is aged about 17 years and 7 months.

The thrust of the submission made by learned counsel for the petitioners is that the petitioner No.1 has attained the age of discretion where she could decide about her well-being and she on her own volition has got married with petitioner No.2. It has further been argued by learned counsel for the petitioners that as per Personal Laws applicable to Muslims, once the petitioner No.1 attained the age of puberty she is capable to marry and as such no offence under Section 363 I.P.C., from a bare perusal of the impugned First Information Report, is made out.

Learned counsel appearing for the petitioners has relied upon a judgment dated 23.07.2015, passed by this Court in Writ Petition No.3519(MB) of 2015, wherein it has been held that the provisions of Section 363, I.P.C. should not be invoked mechanically and in case the girl in question has attained the age of discretion where she can be said to be in a position to decide what is wrong and what is right for her life, it will not be appropriate in all such cases to invoke Section 363 I.P.C.

On behalf of the petitioners, it has thus been submitted that having regard to the law laid down by this Court in the case of Shaheen Parveen and another Vs. The State of U.P. and others [Writ Petition No. 3519 (MB) of 2015, decided on 23.07.2015], the petitioners are entitled to get the relief as has been prayed for.

Learned counsel for the petitioners has also stated that as to whether the petitioner No.1 was enticed away or taken away from lawful guardianship, can be determined only once the statement of the petitioner No.1 is recorded under Section 164, Cr.P.C. and as such a direction may be issued for getting her statement recorded under Section 164, Cr.P.C. and till then the court may pass an order directing the Investigating Agency not to take any coercive measures against the petitioners or not to harass them.

Learned A.G.A. as also the learned counsel appearing for the complainant have opposed the prayers made in this petition.

We have considered the arguments advanced by the learned counsel appearing for the respective parties.

The First Information Report in this case has been lodged under Section 363, I.P.C. which provides for punishment for kidnapping and states that whoever kidnaps any person from India or from lawful guardianship, will be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. Offence of kidnapping has been defined in Section 359, 369 and 361 I.P.C. Section 359 I.P.C. states that kidnapping is of two kinds; kidnapping from India and kidnapping from lawful guardianship. Section 361 defines kidnapping from lawful guardianship, according to which if anyone takes or entices any minor or any person of unsound mind, out of the keeping of the lawful guardianship without consent of such guardian is said to kidnap such minor or person from lawful guardianship. The said provision further provides that for an offence of kidnapping from lawful guardianship in case of minor, if minor said to have kidnapped is male, he should be under 16 years of age and if the person said to have kidnapped is female, she should be under 18 years of age. Thus, to constitute an offence under Section 359, I.P.C., the age of puberty or eligible age of marriage as provided under the personal law will have no bearing. Irrespective of the personal law applicable in respect of marriage, if the minor is under the age of 16 years in case of male and under the age of 18 years in case of female and he or she is either taken away or enticed away from lawful guardianship without the consent of the guardian, the offence under Section 361 I.P.C. is made out.

Here it is noticeable that the consent of the minor is not relevant for the reason that Section 361 I.P.C. clearly stipulates that taking away or enticing away of the minor should have happened without the consent of the guardian and not that of the minor. In this view as well, the eligible age of marriage as per personal law applicable in a given case does not appear to have any bearing so far as offence under Section 361, I.P.C. is concerned; neither the consent of minor has any bearing on the same.

So far as the submission made by learned counsel for the petitioners that the provisions of Section 363 I.P.C. should not be invoked mechanically in case the minor concerned has attained the age of discretion where he/she decides to decipher as to what is right or what is wrong for him/her is concerned, we may only observe that in the proceedings before this Court under Article 226 of the Constitution of India, this question cannot be determined, the question being a question of fact. The determination of the fact as to whether the minor kidnapped had at the time of alleged kidnapping attained the age of discretion is the question of fact which needs evaluation of evidence in this regard, including the statement of person concerned which in these proceedings before this Court under Article 226 of the Constitution of India is impermissible. The said ground as argued by the learned counsel for the petitioners is also thus misconceived.

At this juncture, learned counsel for the petitioners states that the Investigating Officer may be directed to get the statement of petitioner No.1 recorded under Section 164, I.P.C. and depending on the said statement it can be said whether offence under Section 361, 363, I.P.C. is made out or not.

In a petition filed under Article 226 of the Constitution of India seeking quashing of First Information Report, the settled law is that in case from a bare perusal of recitals made in the First Information Report if a cognizable offence as defined under the I.P.C. or any other relevant penal statute is not made out, the F.I.R. can be quashed and accordingly appropriate relief can be granted to the person approaching the Court. During course of such an enquiry in a petition under Article 226 of the Constitution of India seeking any direction as regards the manner in which investigation is to be conducted, in our considered opinion, is neither permissible nor possible.

In view of the aforesaid discussions, we find that the submissions made by learned counsel appearing for the petitioners in this case are misconceived.

The writ petition is, thus, hereby dismissed.

Order Date :- 25.6.2021/Sanjay