Tauhid And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 16251 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:112929-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6252 of 2023
 

 
Petitioner :- Tauhid And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- A.Z.Khan
 
Counsel for Respondent :- G.A.,Zaid Arshad
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

1. Heard Sri Prateek Pandey holding brief of Sri A.Z. Khan, learned counsel for the petitioners, Sri Zaid Arshad, learned counsel appearing for the informant and Sri G.P. Singh, learned AGA for the respondents and perused the record.

2. On 16.5.2023 following order was passed:-

"1. Heard Sri Prateek Pandey, holding brief of Sri A.Z. Khan, learned counsel for the petitioners and the learned AGA as well as Sri Zaid Arshad, learned counsel for the informant.

2. On 9.5.2023 this Court passed the following order:

"Heard Sri A.Z. Khan, learned counsel for the petitioners and Sri G.P. Singh, learned A.G.A. for the State respondents.

The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 15.04.2023, registered as Case Crime No. 46 of 2023, under Sections 363, 366 IPC, Police Station Jigna, District Mirzapur and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

Submission of the learned counsel for the petitioner is that as per High School Certificate, date of birth of the petitioner no.2 is 24.09.2002, therefore, she was major at the time of incident.

Learned AGA states that he is still not having his instructions although in this regard he has sent a letter to the respondent authorities.

Put up this case as fresh on 16.05.2023. In case instructions are not received by that date, this Court may take serious view of the matter.

Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., whichever is earlier, the respondents are restrained from arresting the petitioners pursuant to the aforesaid FIR subject to cooperation in ongoing investigation.

Learned AGA is directed to send copy of this order to the respondent no.2-Suprintendent of Police, Mirzapur for compliance."

3. Sri Ratan Singh, learned AGA states that he is not having instructions today as well.

4. Under such circumstances, the respondent no. 3 (Station House Officer, PS Jigna, District Mirzapur) shall remain present with the instructions on the next date.

5. Put up this case on 23.5.2023 as a fresh one.

6. Learned AGA is directed to send a copy of this order to the respondent no. 2 (Superintendent of Police, Mirzapur) as directed in the previous order as well and in case this Court is not satisfied with the instructions, it may consider summoning the respondent no. 2 as well as to why the order of this Court dated 9.5.2023 is not complied with.

7. Interim order granted earlier shall continue till the next date of listing."

3. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 15.4.2023 registered as Case Crime No. 46 of 2023, under Section 363, 366 IPC, PS Jigna, District Mirzapur and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

4. Submission of learned counsel for the petitioner is that no case has been made out against the petitoners as even as per the first information report itself, daughter of the informant is aged about 18 years. It is submitted that as per high-school certificate, the date of birth of petitioner no. 2 is 24.9.2002 and date of birth of petitioner no. 2 is 1.1.2002 and as such, the petitioners no. 1 and 2 are major and they have married on their sweet will and no offence has been committed. Reliance has been placed on a judgement and order dated 5.12.2022 passed by this Court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) to submit that under identical circumstances the petition was allowed and FIR therein was quashed.

5. The aforesaid order dated 5.12.2022 passed in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) is quoted as under:

"Heard learned counsel for the petitioners and learned AGA.

Present writ petition has been preferred for quashing the FIR dated 25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.

Placing reliance on the Aadhar Card of the victim girl showing her date of birth as 1.1.2004, it is submitted by the learned counsel for the petitioners that the petitioner no.1 is a major girl aged about more than 18 years on the date of incident.

The present petition has been filed with the declaration, jointly by both the petitioners no.1 & 2 that the petitioner no.1 had left her paternal home out of her own sweet will and being a major girl, she is free to take her choice to perform marriage with the petitioner no.2.

The present petition, however, has been filed on the assertion that no offence under Section 366 IPC is made out as the petitioner no.1 is a major girl. The entire criminal case lodged by the respondent no.3 is nothing but an abuse of the process of the law.

Learned counsel for the petitioners has further contended that in view of the aforesaid facts and circumstances, the impugned FIR is liable to be quashed in view of the Supreme Court's judgment in Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that

the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC.

As regards the age of the victim girl, as indicated in the Aadhar Card appended as Annexure No.2 to the writ petition, no dispute has been raised by learned AGA. It is, thus, clear that both the petitioners are major. The fact that the present writ petition has been filed with the declaration by the victim girl and that she is living voluntarily in the company of the petitioner no.2, is supported with the signature of the victim girl on the Vakalatnama. Once the age of the victim girl is not in dispute, the petitioners no.1 & 2 cannot be made accused for committing offence under Section 366 IPC as victim had left her home in order to live with the petitioner no.2.

We make it clear that the question in the present petition is not about the validity of marriage of two individuals i.e. petitioners no.1 & 2. Rather, the issue is about the life and liberty of two individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.

In view of the above discussion, we are of the considered view that from the first information report no offence under Section 366 IPC is made out, inasmuch as, both the petitioners are major and the petitioner no.1 has come up with the categorical stand that she had left her home with the petitioner no.2 willingly and is living with him as a married woman.

In view of the above, the writ petition succeeds and is allowed. The FIR dated 25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj as well as all consequential proceedings are hereby quashed.

We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners."

6. Per contra, learned AGA though has opposed the petition, however, could not dispute the aforesaid fact.

7. In view of the above discussion, we are of the considered view that from the first information report no offence under Section 366 IPC is made out, inasmuch as, the petitioners no. 1 and 2 are major and the petitioner no. 1 has come up with the categorical stand that she had left her home with the petitioner no. 2 willingly and is living with him as a married woman.

8. In view of the above, the writ petition succeeds and is allowed. The FIR dated 15.04.2023, registered as Case Crime No. 46 of 2023, under Sections 363, 366 IPC, Police Station Jigna, District Mirzapur as well as all consequential proceedings are hereby quashed.

9. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.

10. Since this order has been passed in absence of respondent no. 4, he shall be at liberty to file a recall application for recalling of this order within six weeks.

11. However, we find that on the last occasion as our earlier order dated 9.5.2023 was not complied with, therefore, respondent no. 3-Station House Officer, Police Station Jigna, District Mirzapur was directed to remain present with the instructions today though he is not present in the Court.

12. Learned A.G.A. has placed before this Court a copy of the letters dated 25.4.2023, 2.5.2023, 12.5.2023 and 18.5.2023, however, still he is not present in the court.

13. Learned A.G.A. on the noting of his file further stated that the concerned Station House Officer was informed on phone as well.

14. In such view of the matter, we find that the Station House Officer of Police Station Jigna, District Mirzapur is, prima faice, guilty of non compliance of the order of this Court and today he is not present and for obvious and apparently for extraneous reasons he was not sending the instructions to this Court.

15. Accordingly, this Court is of the opinion that action should be taken against him, however, as instructions have been received today, in place of issuing notice to him for contempt of the order of this Court dated 16.5.2023, we direct learned A.G.A. to send a copy of this order to the respondent no. 2-Superintendent of Police, Mirzapur for taking appropriate action against him and report shall be submitted by the respondent no. 2 on his affidavit by the next date and only for this purpose present petition is being kept pending.

16. Put up this case as fresh on 17.7.2023. On which date learned A.G.A. shall file personal affidavit of the respondent no. 2 placing on record as to what action has been taken against the Station House Officer concerned.

Order Date :- 23.5.2023

Lalit Shukla