Allahabad High Court
Irfan Ali vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 14 February, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:9831
Court No. - 12
Case :- APPLICATION U/S 482 No. - 262 of 2025
Applicant :- Irfan Ali
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others
Counsel for Applicant :- Raj Bahadur Singh Rawat,Suman Kanoujia
Counsel for Opposite Party :- G.A.,Durgesh Kumar Rawat
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties.
The present application has been filed by the applicant seeking the following main relief:-
"to quash the entire criminal proceedings of the S.T. no. 155/2024, State vs. Irfan, arising out of case crime no. 184/2023, under section 363, 366 I.P.C, P.S. Bijnore, Distt. Lucknow, pending in the court of Additional District Judge court no. 13, Lucknow alongwith the impugned chargesheet no.01/2023, dated 15.8.2023 in the interest of justice."
It is stated that applicant and victim/opposite party No. 3 were having affair and victim/opposite party No. 3 was inclined to marry him and both were known to each other.
It is further stated that thevictim/opposite party No. 3, on her own volition, left house of her parents and accompanied the applicant and despite knowing this, informant/opposite party No. 2 made a written complaint at Police Station - Bijnour, District - Lucknow and based upon the allegations levelled therein, the FIR No. 184 of 2023 was lodged under Sections 363, 366 IPC. According to this FIR, the applicant enticed the daughter of theinformant/opposite party No. 2 i.e.victim/opposite party No. 3, aged about seventeen years.
It is further submitted that the allegations levelled in the FIR No. 0184 dated 21.07.2023, the basis of pending criminal proceedings are not correct as would appear from the statement of victim/opposite party no. 3 recorded in terms of Section 164 Cr.P.C. before the concerned Court, a copy of which is annexed at Page 90 of the paper-book. The statement of the victim/opposite party no. 3, being relevant is extracted herein-under:-
"?????? ???? ???????? ???? 164 ???????? ?????? ??? ???? ???? ?????? ??? ??????? ???? ???? 17 ???? ??0 ????? ???? ?????? ???? ?????? ???? ???? ????????? ??0?0??0-184/23 ???? 363/366 ????? ???? ??????, ?????-
???? U/S 164 CRPC- ???- ??? D/0 ??????? ???? 17 ???? (???? ?????) ??????- ???? ???- ???? ?????? ???? ?????? ????-????? ??? ??? ??? ??- ???, ????- 10+2 ????? ???? ??? ??-12, ????- ???? ???? ?? ?????? ??? ??- ?????, ??????? ??????? ?? ????? ?? ?? ?????? ???? ???? ??? ????? ??? ????? ?? 7-8 ????? ?? ????? ???? ??? ?????? ????? ??? ??? ????? ?? ??? ?? ??? ??? ???? ??? ?? ???? ??? ??? ??? ???? ??? ??? ???? ?????? ???? ????? ????? ??? ????? ??? ??? ??? ????? ?? ??? ??? ???? ??? ???? ??? ??? ???? ???? ??? ????? ?? ??? ??? ???? ??? ???? ???? ?? ?? ???? ???? ?? ????? ?? ?? ??? ???? ????? ?????? ????? ????????? ?????? ????? ???
??????? ????????? ?? ?????? ?????? ??????? ?? ???? ??????? ???? ??? ???????? ??????? ?????? ????? ????? ?? ????? ????????? ???? ???????? ???? ??? ????? ?????? ??? ?????? ????? ?? ????? ??? ???? ???? ????? ???? ???? ????????? ??? ????? ?? ?????? ????? ??????, ?????? ? ?????? ?? ??? ?? ???? ?? ??????? ??? ???????? ?? ?????? ??????? ?? ??? ?????? ????? (???????????) ?? ????? ???????? ???? ???? ?????? ?????? ???? ??? ?? ??? ?? ???? ?? ????? ????? ??? ??????? ?? ??? ? ?????? ?? ????????? ???? ???? ?????? ??????? ?? ??????? ?? ????????? ?????? ?? ??? ??????? ?????????? ??????? ?? ??? ??? ?????? ????? ?????? ?? ???? ????????? ?????? ??????? ?? ???? ??? ?? ????????? ?? ???? ??? ?? ?? ????? ???? ???? ????????? ??? ????? ?? ?????? ?? ???? ???? ????"
It is further submitted that despite the aforesaid statement, the Investigating Officer submitted the charge-sheet against the applicant for the offence indicated under Sections 363, 366 IPC and thereafter, cognizance was taken and the matter was committed to the Court of Sessions where the case was registered as Session Trial No. 155 of 2024 (State Vs. Irfan).
It is also stated that the complainant before the trial Court supported the story of the prosecution as would appear from the statement of the informant/opposite party No.2 on record at Page Nos. 73 to 77.
It is further stated thatvictim/opposite party No. 3 before the trial Court has not supported the story of the prosecution which is apparent from the copy of statement annexed at page 69 of the application. Referred statement of the victim is extracted herein-under :-
??? ???? ???? ??? ???? ???? ??????? ?????? ???? ?????? ????? ??????, ????- ???? ???? ???? ???? ?? ???? ?????? 2023 ?? ??? ????? ???? ??? ??? ?? 2023 ?????? ??? ???? ??? ????? ????? ?? ??? ???? ????? ?? ?????? ??? ??? ?? ??? ???? ???? 18 ???? ??? ?????? ??? ????? ?? ??? 3 ????? ??? ??? ???? ???? ?? ???? ???? ??? ??? ?? ?? ????? ?? ??? ??? ?? ???? ??? ?? ????? ?? ????? ???? ?????? ??? ????????? ???? ???? ?????? ?????? ?? ????? 2023 ??? ???? ???? ?? ? ???? ?? ??? ?? ??? ??? ?? ???? ??? ???? ?????? ??? ??? ?? ?? ??? ???? ?????? ?????? ?? ???? ??? ???? ?? ???? ???? ???? ?????? ??? ???? ?? ???? ???? ????? ?? ???? ??? ???????? ??? ????? ???? ?????? ?-6/? ???? ??????? ??????? ????(5) ??????????? ?????? ?? ?????? ??? ? ??? ?? ?????? ???? ?????? ?? ??? ????? ?? ???? ????? ?? ???? ??? ?? ?? ???? ????????? ?? ????? ??? ?????? ???? ??? ??? ?? ????????-4 ???? ???? ????? ????? ?? ???? ?????? ????? ?? ??? ?????????? ???? ?? ????? ???? ?? ????? ?? ????? ??? ??? ?????-5 ?? ?????? ????? ???? ?????? ???? ??? ???? ???? ???? 164 ??????????? ?? ???? ??? ????? ??????? ?????
In continuation, it is stated that on account of non-availability of statement of the victim/opposite party no. 3 recorded under Section 164 Cr.P.c. the examination-in-chief has not been completed till date. Further stated that during the pendency of the criminal proceedings in issue, the victim/opposite party no. 3 solemnized marriage with some other person and she is living in her matrimonial home with her husband at present.
It is further stated that a perusal of the statement of the victim/opposite party no. 3 recorded in terms of Section 164 Cr.P.C. as also before the trial Court would indicate that offence under Sections 363, 366 IPC would not be made out as the victim/opposite party no. 3 left house of her parents on her own volition.
Further submissions, in regard to age of the victim/opposite party no. 3, is that the age of victim/opposite party no. 3 indicated by the prosecution is not correct and to establish that the age indicated in the documents available with the prosecution is correct there is no material/evidence with the prosecution. In view of these facts, the benefit of the observation made by Hon'ble Apex Court in various pronouncements/judgments related to determination of age including in the case(s) of Birad Mal Singhvi Vs. Anand Purohit, reported in (1988) Supp SCC 604, State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, Suhani Vs. State of U.P. delivered on 26.04.2018 in Civil Appeal No.4532 of 2018 arising out of SLP(C) No.8001 of 2018 and in the case of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC OnLine SC 1397, shall be extended in favour of the applicant.
12. Learned counsel for the applicant in support of his submissions has placed reliance on the judgment passed by Hon'ble Apex Court in the case of S. Varadarajan Vs. State of Madras, reported in (1965) 1 SCR 243. Relevant paras referred are extracted herein-under:
18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury's Laws of England, 3rd Edn., Vol. 10, at p. 758:
"The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her."
On behalf of the appellant reliance was placed before us upon the decisions in Rajappan v. State of Kerala [ILR 1960 Kerala, 481] and Chathu v. Govindan Kutty [ILR 1957 Kerala, 591] . In both the cases the learned Judges have held that the expression "taking out of the keeping of the lawful guardian" must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian; or, in other words an act but for which the person would not have gone out of the keeping of the guardian as he or she did. In taking this view the learned Judge followed, amongst other decisions, the two English decisions to which we have adverted. More or less to the same effect is the decision in Nura v. Rex [AIR 1949 All. 710] . We do not agree with everything that has been said in these decisions and would make it clear that the mere circumstance that the act of the accused was not the immediate cause of the girl leaving her father's protection would not absolve him if he had at an earlier stage solicited her or induced her in any manner to take this step.
19. As against this Mr Ranganadham Chetty appearing for the State has relied upon the decisions in Bisweswar Misra v. King [ILR 1949 Cuttack 194] and In re Khalandar Saheb [ILR 1955 Andhra, 290] . The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to "taking" within the meaning of Section 361. In the next case, the act of the accused, upon the facts of the case was held by the Court to fall under Section 366 IPC and the decision in Nura v. Rex [AIR 1949 All. 710] on which reliance has been placed on behalf of the appellant is distinguished. Referring to that case it was observed by the Court:
"Reliance is placed upon the decision of Mustaq Ahmed, J., in Nura v. Rex wherein the learned Judge observed that where a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another who treats her with kindness, he cannot be held guilty under Section 361 of the Indian Penal Code. This decision cannot help the accused for, on the facts of that case, it was found that the girl went out of the protection of her parents of her own accord and thereafter went with the accused. ? In the present case it is not possible to hold that she is not under the guardianship of her father. In either contingency, namely, whether she went out to answer calls of nature, or whether she went to the house of the accused pursuant to a previous arrangement, she continued to be under the guardianship of her father. On the evidence, it is not possible to hold that she abandoned the guardianship of her father and, thereafter, the accused took her with him."
After pointing out that there is an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor is not of relevance in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State.
20. We are satisfied, upon the material on record, that no offence under Section 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.
It is also stated that in the aforesaid facts and circumstances of the case, indulgence of this Court is required in the matter, as otherwise, matrimonial life of victim/opposite party No. 3 would be effected.
Upon consideration of the aforesaid as also the observations in relation to determination of age rendered in the case of Birad Mal Singhvi (Supra), Gurmit Singh (Supra), Suhani (Supra) and Manak Chand alias Mani (Supra) as also the submissions made by learned Counsel for the parties as also the observations made by Apex Court in the case of State of Karnataka Vs. L. Muniswamy and Others, 1977 (2) SCC 699; State of Haryana Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335; Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293; Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC 330; Ahmad Ali Quraishi and Ors. Vs. State of Uttar Pradesh and Ors. (2020) 13 SCC 435, according to which, inherent power under Section 482 Cr.P.C. (akin to Section 528 BNSS, 2023) could be exercised to prevent abuse of process of any Court or otherwise to secure ends of justice, and also the observations made by Apex Court in the case ofS. Varadarajan (Supra), this Court is of the view that entire criminal proceedings arising out of Case Crime No. 184/2023, quoted above, are liable to be quashed. Accordingly are hereby quashed.
Office/Registry is directed to send the copy of this order to the court concerned through email/fax for necessary compliance.
Order Date :- 14.2.2025/Mohit Singh/-
