Aniruddha And Another vs State Of U.P. And 3 Others
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Allahabad High Court

Aniruddha And Another vs State Of U.P. And 3 Others on 11 February, 2025

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:19939-DB
 
Court No. - 42
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 17050 of 2024
 

 
Petitioner :- Aniruddha And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shamshad Alam
 
Counsel for Respondent :- Anurag Singh,G.A.,Kripa Shankar Pandey
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard learned counsel for the petitioners; Sri Anurag Singh, learned counsel for the respondent no. 5 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 11.9.2024 registered as Case Crime No. 298 of 2024, under Sections 87, 352, 351(3) BNS 2023, P.S. Chirgaon, District-Jhansi and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. The coordinate Bench while entertaining the writ petition on 23.9.2024 had proceeded to accord detailed interim order with following effect.

"1. Learned counsel for the petitioner is permitted to implead the victim Swati d/o Jitendra as respondent no.5 in the array of the parties during the course of the day.

2. Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the record.

3. Learned counsel for the petitioners has submitted that victim is a major girl and as per High School Certificate, her date of birth has been noted to be 10.3.2000. Learned counsel for the petitioners has next submitted that she, out of her own free-will and consent, has already solemnized marriage with petitioner No. 1 Aniruddha on 24.4.2022 and is now living peacefully with him.

4. Learned counsel for the petitioners has next submitted that there is nothing on record to show that the victim Swati was forcibly taken away by the petitioner No. 1 and compelled to marry with him and as such, prima facie no offence is disclosed against the petitioners and the impugned first information report is liable to be quashed.

5. Matter requires consideration.

6. Issue notice to the respondent no.4 returnable within four weeks.

7. Learned AGA may file counter affidavit within the said period. Rejoinder affidavit, if any, may be filed within one week thereafter.

8. List on 26.11.2024 before the appropriate Bench.

9. Till then, the petitioners shall not be arrested in pursuance of the impugned F.I.R. dated 11.9.2024 arising out of Case Crime No. 298 of 2024, under Section- 87, 352, 351(3) of B.N.S., P.S. Chirgaon, District- Jhansi provided the petitioners cooperate in the process of investigation. "

4. Learned counsel for the petitioners contends that as the first petitioner had already solemnised marriage with respondent no. 5, who is a major girl and as per High School certificate, her date of birth is 10.3.2000. It has also been contended that her statement u/s 183 B.N.S.S. has also been recorded wherein she has not supported the prosecution version. As such, 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 (Section 87 BNS 2023), 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 87, 352 BNS 2023 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 87, 352 BNS 2023, the Court cannot hold the accused guilty and punish him under Section 87, 352 BNS 2023.

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. So far as the legal and factual aspects, the same are not disputed by learned A.G.A. as well as learned counsel for the respondent no. 5

7. We have proceeded to examine the record in question and find that once age of the victim girl (respondent no. 5) is not in dispute and she herself states that she has married with the first petitioner out of her own free will, then the petitioners cannot be made accused for committing offence as alleged.

8. In view of the above discussion, we are of the considered view that from the first information report no offence under Section 87, 352, 351(3) BNS 2023 are made out, inasmuch as the victim (respondent no. 5) has come up with the categorical stand that she had left her home with the first petitioner willingly and is living with him as a married woman.

9. In view of the above, the writ petition succeeds and is allowed. Consequently, the First Information Report dated 11.9.2024 registered as Case Crime No. 298 of 2024, under Sections 87, 352, 351(3) BNS 2023, P.S. Chirgaon, District-Jhansi 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 :- 11.2.2025

A.K.Srivastava