Allahabad High Court
Akash @ Shivam Tiwari vs State Of U.P. Thru. Prin. Secy. ... on 7 August, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:52033
Court No. - 28
Case :- APPLICATION U/S 482 No. - 7623 of 2023
Applicant :- Akash @ Shivam Tiwari
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And Others
Counsel for Applicant :- Pranav Pandey
Counsel for Opposite Party :- G.A.,Ashish Chandra Asthana
Hon'ble Shree Prakash Singh,J.
Sri Ashish Chandra Asthana, Advocate, has put in appearance by way of filing Vakalatnama on behalf of opposite parties no. 2 & 3 and the same is taken on record.
Heard Sri Pranav Pandey, learned counsel for the applicant, Sri Ashish Chandra Asthana, learned counsel for the opposite parties no. 2 & 3,Sri Anirudh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.
The instant application under section 482 Cr.P.C. has been filed with the prayer to quash/set aside the summoning order dated 28-08-2018 as well as the N.B.W. and 82 Cr.P.C. order dated 22-06-2023 and Chargesheet No. A-391/2018, dated 26-07-2018, arising out of Case Crime No. 893 of 2016, under sections 363,366,376 of I.P.C. and Section 3/4 of the POCSO Act, Police Station-Kotwali, District-Unnao in Crl. Case No. 210/2018,pending in the court of Additional District Judge-12, Unnao.
Learned counsel appearing for the applicant submits that the first information report was lodged under section 363 of I.P.C. against the present applicant and the matter was investigated and the chargesheet was submitted by the Investigating Officer under sections 363,366,376 of I.P.C. and Section 3/4 of the POCSO Act. He submits that the statements of the victim recorded under sections 161 & 164 of Cr.P.C. also demolishes the story of the prosecution and the Investigating Officer, without collecting the material evidence, has filed the Chargesheet under several sections including the POCSO Act. He next added that as per the radiological report, the age of the prosecutrix is 19 years, though in the first information report, it has deliberately been mentioned as 15 years. He submits that in the statements recorded under sections 161 and 164 of Cr.P.C. the alleged victim stated that she went away with the applicant with her own sweet will and she performed the marriage with the applicant and there is a child from their wedlock. He submits that the alleged victim and the present applicant are living as husband and wife and they are enjoying their marital life and if the present prosecution is allowed to go on, their marital life would be badly hampered.
In support of his contentions, he has placed reliance on a judgment rendered in Vishwas Bhandari v. State of Punjab and another reported in (2021) 2 Supreme Court Cases 605, Criminal Appeal No.105 of 2021, dated 03.02.2021 and has placed reliance on paragraphs 9 and 10 and the same are extracted hereunder:-
"9. We find that the evidence of the prosecutrix and the complainant before the Court shows that there is no allegation whatsoever against the appellant. The main allegation was against Vikram Roop Rai but the prosecutrix married him on 4.8.2013 and had given birth to two children from that wedlock. In the absence of any allegation against the appellant, we find that the continuation of proceedings against him is nothing but an abuse of process of law.
10. Since there is no evidence against the appellant, the proceedings initiated against him on the basis of FIR would be untenable. The High Court was, thus, not justified in dismissing the petition against the appellant."
Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of Judgment aforesaid. Thus, submission is that the criminal proceedings against the present applicant may be quashed.
On the other hand, learned counsel appearing for the opposite parties no. 2 & 3 submits that under certain misconception, the first information report was lodged though, the daughter of the opposite party no. 2 was major at the time of the incident and as per the radiological report, she was found major. He next submits that the daughter of opposite party no.2 has performed marriage with the present applicant and there are two children from their wedlock, which fact has been mentioned in paragraprah no. 12 of the instant application.Thus,submission is that the criminal proceedings against the present applicant may be dropped.
On the other hand, learned A.G.A. appearing for the State, though has opposed the contentions aforesaid on merits, but, he has no objection so far as the fact remains that the applicant and the alleged victim have performed their marriage and there are two children from their wedlock.
Considering the submissions of learned counsels for the parties and after perusal of material placed on record, it transpires that the first information report was lodged by the opposite party no.2 against the present applicant and thereafter, the chargesheet was flied,but, it has been brought to the knowledge of this court that the applicant and the alleged victim have performed their marriage and and even the complainant has no grudge against the marriage of the applicant and his daughter.
Further this court has noticed the fact that there are two children from the wedlock of the applicant and the alleged victim and they are living as husband and wife.
It is trite law that if the first information has been lodged though the victim and the accused performed their marriage and there are children from their wedlock, no criminal proceedings can be permitted.
In view of aforesaid submissions and discussions, the instant application is allowed and the proceedings arising out of summoning order dated 28-08-2018 as well as the N.B.W. and 82 Cr.P.C. order dated 22-06-2023 and Chargesheet No. A-391/2018, dated 26-07-2018, arising out of Case Crime No. 893 of 2016, under sections 363,366,376 of I.P.C. and Section 3/4 of the POCSO Act, Police Station-Kotwali, District-Unnao in Crl. Case No. 210/2018,pending in the court of Additional District Judge-12, Unnao, are hereby quashed.
Consequences shall be followed
Consigned to record.
Order Date :- 7.8.2023
AKS
