Sushila And 2 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 29101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:202325-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 15823 of 2023
 

 
Petitioner :- Sushila And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Singh
 
Counsel for Respondent :- G.A.,Rajesh Kumar Mishra
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vinod Diwakar,J.

1. Heard Shri Sanjay Singh, learned counsel for the petitioners, Shri Rajesh Kumar Mishra, learned counsel for the informant and Shri Rajesh Khare, learned AGA for the respondents and perused the record.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 23.09.2023, registered as Case Crime No. 100 of 2023, under Section 366, P.S. Patwai, District Rampur and for a direction to the police not to arrest the petitioners in pursuance of impugned First Information Report.

3. On 09.10.2023 following order was passed:-

"Heard Sri Sanjay Singh, learned counsel for the petitioners, learned counsel Sri Rajesh Kumar Mishra, who has put in appearance on behalf of opposite party no. 3 and the learned A.G.A. and also perused the record.

It is submitted by the learned counsel for the petitioners that both, petitioner no. 1- Sushila and petitione no. 2-Jogesh Kumar are major and petitioner no. 1 has married with petitioner no. 2. It is further submsitted that petitioner no. 1 has passed intermediate examination, but unfortunately the certificate of the same is in the possession of opposite party no. 3.

Under these circumstances, learned counsel for opposite party no.3 is directed to file a short counter affidavit annexing the certificates of petitioner no. 1 within a week.

Put up as fresh on 18.10.2023.

Till then, the petitioners shall not be arrested pursuant to the FIR dated 23.9.2023 registered as Case Crime No. 100 of 2023, under Section 366 IPC, Police Station Patwai, District Rampur."

4. Today, learned counsel for the respondent prays further time to file short counter affidavit annexing the certificates of petitioner no. 1. In view of the assertion made in para 6 of the petition that all the educational certificates are in the custody of the informant, we are not inclined to grant any further time to the informant. We, therefore proceed to consider the case on merits.

5. Submission of learned counsel for the petitioner is that the informant is father of the victim and had lodged the FIR wherein the victim is shown to be aged about 18 years. It is further submitted that as per Aadhar Card, date of birth of petitioner no.1- Sushila is 11.05.2005, and date of birth of petitioner no. 2- Jogesh is 01.01.2000 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will, and no offence has been committed and petition is supported by joint affidavit. By drawing attention to Annexure-. 5 to the petition, it is submitted that they have applied for registration of marriage. 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.

6. 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."

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

8. In view of the above discussion, we are of the considered view that from the FIR, 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.

9. In view of the above, the writ petition succeeds and is allowed. The First Information Report dated 23.09.2023, registered as Case Crime No. 100 of 2023, under Section 366, P.S. Patwai, District Rampur as well as all consequential proceedings are hereby quashed.

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

Order Date :- 18.10.2023

Ujjawal