Bhagwan Swaroop @ Ajay And Another vs State Of U.P. And 3 Others
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Allahabad High Court

Bhagwan Swaroop @ Ajay And Another vs State Of U.P. And 3 Others on 22 January, 2025

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:11204-DB
 
Court No. - 42
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1204 of 2025
 

 
Petitioner :- Bhagwan Swaroop @ Ajay And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rajesh Kumar,Udayveer Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard learned counsel for the petitioners, Mr. Shashi Dhar Pandey, learned A.G.A. for the State-respondents and perused the record.

2. The present writ petition has been preferred with prayer to quash the impugned First Information Report dated 23.12.2024 registered as Case Crime No.597 of 2024, under Sections 87, 352, 131 of B.N.S., 2023, P.S. - Hafizganj, District- Bareilly and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. The first information report is being challenged on the ground that petitioners herein are accused of the First Information Report dated 23.12.2024 registered as Case Crime No.597 of 2024, under Sections 87, 352, 131 of B.N.S., 2023, P.S. - Hafizganj, District- Bareilly. Learned counsel for the petitioners submits that the main accused namely, Prempal has preferred the writ petition i.e. Criminal Misc. Writ Petition No. - 680 of 2025 (Smt. Krishma and Another Vs. State of U.P. and 3 Others), wherein, this Court while entertaining the same has proceeded to quash the impugned F.I.R. vide its judgment and order dated 17.1.2025 precisely taking note to the fact that victim namely, Smt. Krihma and petitioner No.2 therein namely, Prempal after attaining the age of majority have performed their marriage on 18.12.2024 as per Hindu rites and rituals. For ready reference the aforesaid order dated 17.1.2025 is reproduced hereinunder:-

"1. Heard learned counsel for the petitioners 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 23.12.2024 registered as Case Crime No.597 of 2024, under Section 87, 352, 131 of B.N.S., 2023, Police Station Hafizganj, District- Bareilly and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. Learned counsel for the petitioners submits that both the petitioners are major. They have performed their marriage on 18.12.2024 as per Hindu rites and customs. They have also applied for registration of marriage through online on 20.12.2024. After the marriage, the petitioner no.1 is peacefully living with the petitioner no.2 as husband and wife at her matrimonial home. It is submitted that no offence under Section 87 BNS is made out against the petitioner no.2 as the victim is a major girl. The entire criminal case lodged against the petitioner no.2 is nothing but an abuse of the process of the law.

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 & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC/Section 87 BNS, 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, and 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 BNS 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 BNS, the Court cannot hold the accused guilty and punish him under Section 87 BNS.

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 has submitted that once the victim, who is major, has herself admitted that she has already solemnized marriage with the petitioner, he has no objection, if the matter is decided on merit.

7. We have proceeded to examine the record in question and find that once the age of the victim girl is not in dispute and she herself states that she has married with the petitioner no.2 out of her own free will, then the petitioner no.2 cannot be made accused for committing offence under Section 87 BNS as victim had left her home in order to live with the petitioner no.2.

8. In view of the above discussion, we are of the considered view that from the first information report no offence under Section 87 BNS is made out, inasmuch as the victim has come up with the categorical stand that she had left her home with the 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 23.12.2024 registered as Case Crime No.597 of 2024, under Section 87, 352, 131 of B.N.S., 2023, Police Station Hafizganj, District- Bareilly 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."

4. Learned counsel for the petitioners in this backdrop submits that this Court while entertaining the petition filed by the main accused namely, Prempal in Criminal Misc. Writ Petition No. - 680 of 2025 (Smt. Krishma and Another Vs. State of U.P. and 3 Others) was pleased to allow the petition precisely keeping in view of the mandate given by Hon'ble the Apex Court in Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr reported in AIR 2018 SC 2099 as well as judgment 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 U.P. and 2 Others). Learned counsel for the petitioners submits that petitioners have no complicity in the instant matter and just because of being friend of the main accused namely, Prempal, they have dragged into this matter, therefore, the similar indulgence may be accorded in favor of the petitioners herein.

5. Mr. Shashi Dhar Pandey, learned A.G.A. is having no objection on the aforesaid submissions advanced by the learned counsel for the petitioners.

6. In view of the above facts and circumstances of the case, we find substance in the argument advanced by learned counsel for the petitioners and no useful purpose would be served to keep this matter pending as the F.I.R. registered against the main accused namely, Prempal has already been quashed by an order dated 17.1.2025 passed by this Court in Smt. Krishma (supra). Accordingly, the writ petition succeeds and is allowed. Consequently, the First Information Report dated 23.12.2024 registered as Case Crime No.597 of 2024, under Sections 87, 352, 131 of B.N.S., 2023, P.S. - Hafizganj, District- Bareilly as well as consequential proceedings are hereby quashed.

Order Date :- 22.1.2025

Sachin