Arpit Chaurasia And Another vs State Of U.P. Thru. Secy. Home. Lko ...
2023 Latest Caselaw 22506 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:55286
 
Court No. - 28
 
Case :- APPLICATION U/S 482 No. - 6495 of 2019
 
Applicant :- Arpit Chaurasia And Another
 
Opposite Party :- State Of U.P. Thru. Secy. Home. Lko And Another
 
Counsel for Applicant :- Nisha Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Shree Prakash Singh,J.

Heard Ms. Nisha Srivastava, learned counsel for the applicant, Sri Nirmal Pandey, learned AGA for the State and perused the material placed on record.

The instant application has been filed with the following reliefs:-

"?????? 482 ?????????? ?? ?? ?????????? ??????-???? ?????? ??????? ??, ?? ?????? ?????, ????? ??? ???????????? ?? ???? ?? ???? - ????????, ????-???????? ?? ????? ????????? ??0?0??0-175/17 ???? 363, 366 ?? ????????????? ?????? ????? ????-???? ??????- 147/17, ???????? 29-7-17 ?????? 363, 366, 376 ??.??.??. ? 3/4 ?????? ???? ??? 3(2)(5) ??.??.??.??. ???? ???? ???????? ????- ???????? ?? ???????? ?? ???? / ?????? / ????????? / ?????? ???? ?? ???? ???? ????? ??? ??.??. ??0-85/17 ?????- 175 ?????? 363, 366, 376 ??.??.??. ? 3/4 ?????? ???? ? 3(2)(5) ??.??./??.??. ???? ?? ????????? ?????? ???? ?? ???? ???? ?????"

The learned counsel appearing for the applicants submits that as per the version of the First Information Report, on 20.05.2017, the daughter of the opposite party no. 2 was enticed away by Arpit Chaurasiya, applicant no. 1 and it has further been alleged that at the time of the said occurrence, the age of the victim was 15 years though, as per the radiological report, the same was found 16 years.

Contention of the learned counsel for the applicant is that a Habeas Corpus petition was also instituted bearing no. 18879 of 2018, Smt. Sudha through her husband Mr. Arpit Kumar, wherein, the Division Bench of this Court has passed the order on 27.08.2018, which is quoted hereinunder :-

"1. The petition seeks issuance of a writ in the nature of habeas corpus directing respondent no.4 (Superintendent of Rajkiya Mahila Sharnalaya, Ayodhya, Faizabad) to release the petitioner forthwith.

The petition also seeks issuance of a writ in the nature of certiorari quashing order dated 14.06.2017 issued by Chairman, Child Welfare Committee, Barabanki/Judicial Magistrate First Class, Barabanki.

2. We have heard learned counsel for the petitioner and Shri S.P. Singh, learned counsel for the State

3. It has been pleaded on behalf of the petitioner that petitioner got married to Arpit Kumar, the deponent. The marriage has not been accepted by respondent no.5, the father of the petitioner, therefore, Case Crime No.175 of 2017 has been registered in Police Station Asandra, District Barabanki, under Sections 363, 366, 376 Indian Penal Code and Section 3/4 of Protection of Children from Sexual Offences Act.

4. Gist of the issue as raised by the petitioner is recorded in order dated 14.08.2018. The order reads as under :-

"1. The petition seeks issuance of a writ in the nature of habeas corpus directing respondent no.4 to release the petitioner forthwith and allow her to live as per her wish.

The petition also seeks issuance of a writ in the nature of certiorari quashing order dated 14.6.2017 vide which the petitioner was confined to Nari Niketan.

2. Shri Pravin Kumar Verma, Advocate has put in appearance for respondent no.5. Power of Attorney filed by him in court, is taken on record.

3. Learned counsel for the petitioner contends that although the petitioner earlier approached this court by way of filing Writ Petition No.29814 (H.C.) of 2017 which was dismissed because the petitioner was found to be approximately 17 years of age, however, this Court cannot be oblivious of the fact that the petitioner has been in custody since June, 2017. In case the petitioner wishes to go in the company of respondent no.5, the deponent, her husband would accept the said fact.

4. Considering the contention of learned counsel for the petitioner, we hereby direct respondent no.4 to produce the petitioner in court on 27.8.2018.

The deponent would also remain present in court on the next date of listing. Respondent no.5 shall also remain present in court.

5. The investigating officer of Case Crime No.175 of 2017, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station Asandra, District Barabanki. is directed to file his counter affidavit.

6. List on 27.8.2018."

5. Learned counsel for the State Shri S.P. Singh admits that age of the petitioner was determined in June, 2017 and was found to be 16 years. Presently, the petitioner would be around 17 years of age.

6. The petitioner has been produced in Court.

7. We have questioned the petitioner at some length. The petitioner states in clear and unequivocal terms that she is married to Arpit Kumar, the deponent and wants to live with him in her matrimonial house.

It has been suggested to the petitioner that she goes to live in her paternal home of respondent no.5. The petitioner, however has refused.

8. We have taken serious note of the fact that the petitioner is confined in Nari Niketan since June, 2017 i.e. more than one year.

We take judicial notice of the fact that the conditions of living in a Nari Niketan for a young girl are not ideal. The parties are Hindus. Under the relevant laws, even marriage of a minor would be voidable, and not void.

The petitioner has not repudiated the marriage, rather has endorsed the factum of her marriage with Arpit Kumar and has shown her willingness to live with him in her matrimonial home.

9. Considering the totality of facts and circumstances, we have no doubt that custody of the petitioner in Nari Niketan shall be in violation of her rights vested under Article 21 of the Constitution of India. Apparently, the petitioner, the alleged detenue, had not been kidnapped by Arpit Kumar.

10. In view of the above, we hereby allow this petition and direct respondent no.4 (Superintendent of Rajkiya Mahila Sharnalaya, Ayodhya, Faizabad) to release the petitioner forthwith to allow her to live as per her own wish.

11. Let a copy of this order be released under signatures of the Bench Secretary. "

Referring the aforesaid, she submits that the Division Bench of this Court has recorded the statement of the alleged victim, namely, Smt. Sudha and has noted the desire that she wants to live with Arpit and thus, she was released from Rajkiya Mahila Sharnalaya, Ayodhya, Faizabad, in favour of Arpit. Adding her arguments, she submits that now the applicant nos. 1 and 2 are living as husband and wife, as they have performed the marriage on 01.06.2017 and there is no grudge against each other. She further added that the applicant no. 2 went away with the applicant no. 1 with her own sweet will and she performed marriage and thus the ingredients of Section 366 and 363 of IPC do not attract in this matter. She also added that in fact, allowing the criminal proceeding against the present applicants would amount to harassment, as there is no fate of the trial and the marital life of the applicants nos. 1 and 2, shall vanish.

Learned counsel for the applicants 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."

She added that the case of the present applicants is squarely covered with the ratio of the judgement aforesaid. Therefore, submission is that the criminal proceeding arising out of Case Crime No. 175 of 2017 may be quashed.

Per contra the learned AGA appearing for the State has opposed the contention aforesaid on merits, but he has no objection if the applicant nos. 1 and 2 have performed marriage and they are living as husband and wife.

Considering the submissions of the learned counsel for the applicants and after perusal of the material placed on record, it transpires that a First Information Report was lodged by the opposite party no. 2, i.e., the father of the alleged victim that her daughter has been enticed away by the applicant no. 1 and thereafter, the investigation started and the chargesheet was filed.

This Court has noted the fact that since the statement of the victim was recorded when she was brought from the Rajkiya Mahila Sharnalaya, Ayodhya, Faizabad, wherein, she stated to go with the applicant no. 1 and thus, she was released thereof.

On the query being asked by this Court, the alleged victim stated that she has performed marriage with the applicant no. 1 and she is residing with him as wife and also added that there is no grudge and the father being annoyed has lodged the First Information Report.

In view of the submissions and discussions, the criminal proceedings arising out of Case Crime No. 175 of 2017, registered at Police Station Asandra, District Barabanki, under Sections 363, 366 and 376 of IPC and Section 3/4 of POCSO Act are hereby quashed.

The personal appearance of the applicants are here by exempted.

Consequences shall be followed.

Consigned to record.

Order Date :- 21.8.2023

Anurag