Allahabad High Court
Shivendra Mishra And 2 Others vs State Of U.P. Thru. Prin. Secy. ... on 16 March, 2023
Bench: Ramesh Sinha, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 1949 of 2023
Petitioner :- Shivendra Mishra And 2 Others
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others
Counsel for Petitioner :- Laxmi Narayan Gupta,Ajai Vikram Singh
Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Narendra Kumar Johari,J.
Supplementary affidavit filed by Laxmi Narayan Gupta on behalf of the petitioners today is taken on record.
Heard Sri Laxmi Narayan Gupta, learned counsel for the petitionerss, Sri Pawan Kumar Mishra, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioners seeking issuance of a writ, order or direction in the nature of certiorari quashing the First Information Report dated 12.2.2023 registered as Case Crime/FIR No. 0052/2023 under Sections 363, 366 I.P.C. at P.S. Pali, District Hardoi and with a further prayer to issue a writ order or direction in the nature of mandamus commanding the opposite parties not to arrest the petitioners in pursuance to the impugned FIR.
Learned counsel for the petitioners submitted that the prosecutrix/petitioner no.3 and petitioner no.1 are major aged about 25 years and 23 years as per high school certificate. Learned counsel for the petitioners has stated in his supplementary affidavit, which has been filed today, that the petitioner no.3 and 1 have performed marriage on 16.2.2023 in Arya Samaj Mandir, Aliganj, Lucknow, copy of which has been annexed as Annexure-3 to the writ petition and since then they are living together happily at their house in Lucknow. He next argued that the petitioner no.3 had voluntarily left her parental home and entered into matrimonial alliance with petitioner no.1 and that she was major, it cannot be said that any cognizable offence against the petitioner nos.3 and 1 is made out, hence the impugned FIR is liable to be quashed. Learned counsel for the petitioners further submits that as the petitioner nos.3 and 1 are major and they have voluntarily married, then to conceive in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013 (Sachin Pawar vs. State of U.P) decided on 02.08.2013), that, offence has been committed under Section 366 I.P.C., cannot be approved of.
Per contra learned AGA opposed the prayer for quashing of the impugned FIR but could not dispute the fact that the victim/petitioner no. 3 is a major girl.
Learned AGA has not been able to demonstrate that either the prosecutrix Chhoti Bitiya @ Saurabhi Devi was minor on the date of the incident or that she had been kidnapped or abducted by the petitioner no.1.
In view of the aforesaid, it cannot be said that the petitioner no.1 has 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.
There shall however be no order as to costs.
.
(Narendra Kumar Johari,J.) (Ramesh Sinha,J.)
Order Date :- 16.3.2023
AKK
