Allahabad High Court
Khushi And Another vs State Of U.P. And 2 Others on 20 November, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 19225 of 2019 Petitioner :- Khushi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sandeep Kumar Rai,Sandeep Kumar Rai Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners; learned AGA for respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the first information report dated 5th July, 2019 registered as Case Crime No.0352 of 2019, under Section 363 IPC at Police Station Jaani, District Meerut.
The allegation in the first information report is that informant's daughter Khushi aged about 13 years 6 months has been enticed away by the accused.
The accused and the victim (Khushi) have filed this petition by claiming that victim (Khushi) is admittedly an adult whose date of birth is 17th December, 2000 recorded in her matriculation certificate. It is alleged that she has voluntarily married petitioner no.2 (Karan) and therefore no offence has been committed.
On 16th July, 2019, after hearing the submission of learned counsel for the petitioners, following order was passed:
"Heard Sri S.K. Rai, learned counsel for the petitioners, Sri Jai Narain, learned AGA for the State and perused the impugned F.I.R. as well as material brought on record.
Learned A.G.A. has accepted notice on behalf of the opposite party nos. 1 and 2.
Issue notice to the opposite party no. 3.
Each of the respondent is granted four weeks time to file counter affidavit.
Rejoinder affidavit, if any, may also be filed within two weeks thereafter.
List after six weeks.
Learned counsel for the petitioners submits that as per the high school certificate copy of which is annexed as annexure-2 petitioner no. 1 is a major girl and she has voluntarily solemnized marriage with petitioner no. 2 on 6.7.2019. He further contended that once they are major and they have voluntarily married, then to conceive in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013 - Sachin Pawar Vs. State of U.P., decided on 02.08.2013, that, offence has been committed under Sections 363, 366 I.P.C., cannot be approved of.
Prima facie arguments advanced appear to have some substance and require consideration by this court as such pursuant to impugned F.I.R. dated 5.7.2019, registered as Case Crime No. 352 of 2019, u/s 363 IPC, police station Jaani, District Meerut no coercive action be taken against the petitioners.
It is made clear that if the petitioners do not take steps to serve notice to respondent no. 3 within two weeks' from today, the interim protection granted above shall automatically vacated and this petition shall stand dismissed without further reference to any other Bench of this Court."
Pursuant to the above order, the office has submitted report that the petitioner has not taken steps to serve respondent no.3.
As in the first information report the victim is allegedly a minor, the matter would have to be investigated to determine the age of the victim. Hence, the prayer of the petitioners to quash the first information report cannot be accepted.
However, considering the facts and circumstances of the case we deem it appropriate to dispose of this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Khushi) before the court of Chief Judicial Magistrate, Meerut by or before 15th December, 2019. Upon her production, the Chief Judicial Magistrate, Meerut shall proceed to record the statement of Khushi to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.2 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. On the date so fixed, the learned Magistrate shall proceed to determine the age of the victim as per law, keeping in mind the provisions that are applicable for determination of the age of a victim and may, if necessary, direct for ossification test/medical examination of the victim from a District Government Hospital. If the victim is found to be a minor, the learned Magistrate shall proceed to pass appropriate orders in respect of custody of the victim, as per law. However, in case the victim is found to be an adult, he shall proceed to record the statement of the victim under Section 164 Cr.P.C.
On the basis of the statement of the victim and the age of the victim as determined above, the police shall submit report under Section 173(2) Cr.P.C.
The aforesaid exercise shall be completed preferably within a period of three weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 15th December, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim. Though, in the event the victim is found to be minor, the police would be free to take the investigation to its logical conclusion and may effect arrest of the accused.
It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigation agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
With the aforesaid observations/directions, the petition is disposed off.
Order Date :- 20.11.2019.
Rks.