Allahabad High Court
Hasnain @ Malik vs State Of U.P. And 3 Others on 11 April, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 9936 of 2023
Applicant :- Hasnain @ Malik
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Vishnu Murti Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Learned counsel for the applicant is permitted to carry out the correction in the sections made in the memo of application.
Pursuant to my earlier order dated 7.4.2023 Ms. Astana is present in the Court, who has been duly identified by Shri Vishnu Murti Tripathi, learned counsel for the applicant.
Heard Shri Vishnu Murti Tripathi, learned counsel for the applicant as well as learned A.G.A. and perused the record.
The instant application u/s 482 Cr.P.C. is being filed by Hasnain @ Malik s/o Irfan, r/o Kesarpur, P.S. Sirauli, District Bareilly who is facing prosecution in Criminal Case No.1362 of 2019 (State vs. Hasnain @ Malik), u/s 363, 366, 506, 376(2)N of I.P.C. and Section-6 of POCSO Act, P.S.-Sirauli, District Bareilly arising out of Charge sheet No.182 of 2019 dated 26.11.2019 in Case Crime No.103 of 2019 as well as cognizance/summoning order dated 24.12.2019, pending in the court of Additional Session Judge/Special Judge, POCSO Act, Bareilly.
Long and short of the case is that the father of the victim Shri Natthu Shah has lodged an F.I.R. against the sole named accused applicant on 16.6.2019 for the incident said to have taken place on 13.6.2019 u/s 363, 366, 506 I.P.C. at Police Station Sirauli, District Bareilly, with the allegations that on 13.6.2019 around 8.00 in the evening the applicant has enticed away his daughter by extending threats. Her whereabouts was not known and thus an F.I.R. was registered under the aforesaid sections of I.P.C.
After the F.I.R. was lodged, the victim girl has approached the High Court by filing a Writ-C No.23644 of 2019, wherein the Division Bench of this Court vide order dated 22.7.2019 have protected the interest of the petitioners Ms. Astana and her husband Hasnain @ Malik. It was also directed victim girl to get her medical examination conducted. Thereafter, the girl was put for medical examination and as per the report of C.M.O., Prayagraj, her age was recorded as 17 years at the time of incident.
After the recovery of the girl, she was sent to the Rajkiya Mahila Sharnalaya, Bareilly vide order dated 12.9.2019 passed by the Child Welfare Committee, Bareilly. Thereafter, her husband has filed a habeas corpus writ petition having No.679 of 2020, which was eventually allowed in favour of husband on 6.1.2021. In para-3 of the affidavit sworn by the victim girl herself filed in support of the present 482 application, it has been mentioned that the girl has got married on 12.6.2019 as per Muslim Rites and customs and from this relationship one baby daughter was born on 23.12.2021 and now both of them are happily and peacefully residing as husband and wife.
Learned counsel for the applicant has drawn attention of the Court to the testimony of father of the victim Natthu Shah as well as the victim herself, in which they have blasted the prosecution case to its core and on her own she went to Prayagraj for taking the protection from the High Court and since both of them are legally wedded husband and wife, they have established physical relationship number of time, besides this she has also stated that she has given birth to a baby from this wedlock.
Today when the victim girl was produced before this Court and the Court has occasion to have conversation with her, she in no uncertain terms states that Hasnain @ Malik (present applicant) is her husband and she got married with him and now she wants to go with her husband Hasnain @ Malik. She also unequivocally states before the Court that the allegations made in the F.I.R. is concocted and exaggeration of the incident. Father of the victim Natthu Shah too in his testimony has given an entirely different picture of the incident.
Under these circumstances, the applicant, his wife and their baby child are happily residing as a family members and the faith and future of the kid would be at stake in the event the applicant is asked to surrender and face the trial.
Learned counsel for the applicant has cited three judgments of the Apex Court in the case of Mafat Lal and Another Vs. The State of Rajasthan, 2022 Live Law (SC) 362 in Criminal Appeal No. 592 of 2022 decided on 28.03.2022, Jatin Agrawal Vs. State of Telangana and another in SLP (Criminal) No. 9568 of 2021 decided on 23-03-2022 and Prashant Bhartiya Vs. The State of Delhi & Anr in Special Leave to Appeal (crl.) No. 8909 of 2019, decided on 28-05-2019. The relevant para nos. 6 and 7 of judgment in case of Mafat Lal (Supra) is quoted hereinbelow:-
"6. The High Court although records all such facts, appears to have been swayed with the fact that the abductee was a minor at the time when she left her home and that the appellant had evaded the investigation and had been successful in keeping away from the process of law for several years. The High Court further proceeded on the assumption that the appellant had actually kidnapped/abducted the minor daughter of the complainant.
7. Before this Court, also the abductee has joined the accused as appellant No.2. Once again similar stand has been taken as was taken before the High Court. Both the appellants have filed separate affidavits. Appellant No.2 has specifically stated before the High Court as also before this Court that she had left her parental home on her own free volition. The appellants are married since December 2006 and have been living happily. They have also been blessed with a son in the year 2014 who would now be 8 years old. No fruitful purpose would be served by relegating the matter for conducting the trial as the same would not be conducive for either of the appellants. It would be a futile exercise. Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age if a female for the offence under Section 363 IPC. In the present case, the abductee had clearly stated that she was neither taken away nor induced and that she had left her home of her own free will. Section 366 IPC would come into play only where there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. This offence also would not be made out once the appellant no. 2 the abductee has clearly stated that she was in love with the appellant no.1 and that she left her home on account of the disturbing circumstances at her parental home as the said relationship was not acceptable to her father and that she married appellant no.1 on her own free will without any influence being exercised by appellant no.1."
I have perused the aforesaid judgments and evaluated the same with the facts of the present case and I am of the considered opinion that the observations made by the Hon'ble Apex Court in the aforesaid judgments would squarely apply in the present case.
The application of law is not a mathematical theorem and cannot be applied in vacuum. The people of the State are subjects and if the application of law is applied mathematically, sometimes it would lead to a disastrous result, when the applicant is leading as a head of a family and he is the bread earner, thus, it would be very cruel to send him to jail putting his poor child in an orphan stage.
Under these circumstances, I have no hesitation to quash the proceedings of aforesaid case pending against the applicant in the Court of Additional Session Judge/Special Judge, POCSO Act, Bareilly.
The present 482 application stands allowed and entire aforesaid proceedings is hereby quashed.
However, it is made clear that this order would be made effective and absolute, when the applicant along with his wife would get their marriage registered within two months from today and thereafter produce its copy to the concern court for passing an appropriate orders, in the light of the observations made in this order.
Order Date :- 11.4.2023
M. Kumar
