Rakesh Yadav vs State Of Up And 2 Others
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Allahabad High Court

Rakesh Yadav vs State Of Up And 2 Others on 14 November, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:179317-DB
 
Court No. - 42
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 19291 of 2024
 

 
Petitioner :- Rakesh Yadav
 
Respondent :- State Of Up And 2 Others
 
Counsel for Petitioner :- Sonu Kumar Upadhyay
 
Counsel for Respondent :- Brijesh Kumar Srivastava,G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard learned counsel for the petitioner and learned A.G.A. for the respondents and perused the record.

2. The present writ petition has been preferred with prayer to quash the impugned First Information Report dated 28.07.2023 registered as Case Crime No.0459 of 2023, under Section 363 IPC, P.S.Ramgarh Taal, District-Gorakhpur and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. A short counter affidavit has been filed today on behalf of informant/respondent no.3, which is taken on record. It has been stated therein that the victim, who is daughter of respondent no.3, had performed marriage with the petitioner and she is living happily with the petitioner as his wife. It has further been mentioned that respondent no.3 has accepted marriage of her daughter as both the petitioner and daughter of respondent no.3 are living happily married life. Upon intervention of respectable persons and elders of their respective families, both the parties are not interested in keeping litigation pending between them and want to lead a peaceful life, so in the interest of justice, they have compromised the matter and a compromise deed has been executed on 13.11.2024.

4. Learned counsel for the petitioner 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 & Another 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.

5. Reliance has also been placed on a judgement and order dated 5.12.2022 passed by a Coordinate Bench of this Court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others), wherein under identical circumstances, the petition was allowed and FIR therein was quashed. For ready reference the order dated 5.12.2022 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. Learned A.G.A., on the instructions, states that till date the police report has not been submitted in the present matter. He further submitted that once the informant has herself admitted that she does not want to prosecute the petitioner, who had already solemnized marriage with her daughter, he has no objection, if the matter is decided on merits.

7. We have proceeded to examine the record in question and find that once the informant, who is mother of the victim, herself states that her daughter has married with the petitioner out of her own free will and she has no objection and a compromise deed has also been executed on 13.11.2024, then the petitioner cannot be made accused for committing offence under Section 363 IPC.

8. In view of the above discussion, we are of the considered view that from the first information report no offence under Section 363 IPC is made out, inasmuch as the informant has come up with the categorical stand that her daughter is living a happily married life with the petitioner willingly and respondent no.3/informant is not willing to proceed with the case any further.

9. In view of the above, the writ petition succeeds and is allowed. Consequently, First Information Report dated 28.07.2023 registered as Case Crime No.0459 of 2023, under Section 363 IPC, P.S.Ramgarh Taal, District-Gorakhpur as well as all consequential proceedings are hereby quashed.

10. We further clarify that the observations made qua the marriage is only for disposal of instant matter and would have no bearing qua their respective rights and the same is to be pressed before the competent court/ authority.

Order Date :- 14.11.2024

Manish Himwan