Allahabad High Court
Smt. Laxmi 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. - 19537 of 2019 Petitioner :- Smt. Laxmi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Dev Prakash Singh Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners; the learned A.G.A. for the respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the first information report dated 28.11.2016 registered as Case Crime No. 0637 of 2016 at P.S. Kotwali Nagar, District Banda, under Sections 363, 366 I.P.C. and section 8 Pocso Act and Section 3(1)(12) SC/ST Act.
The allegation in the first information report is that the informant's daughter Laxmi, aged about 17 years, has gone missing and it appears that she has been enticed away by accused-Mukaddar @ Sachin Arya (petitioner no.2).
The instant petition has been filed by claiming that the victim is an adult and that from her statement recorded under Section 164 Cr.P.C., it appears that she has voluntarily entered into relationship with petitioner no.2.
To demonstrate that the victim has attained the age of majority, matriculation certificate of the victim has been appended at page 17 depicting her date of birth as 21.08.1998.
After considering the submissions of the learned counsel for the petitioners, on 19.07.2019, the Court had passed the following order:-
"Heard Sri Dev Prakash Singh, learned counsel for the petitioners, Sri Irshad Hussain, 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 petitioner no. 1 and 2 are major as per high school marksheet and they have also solemnized their marriage according to Hindu rites on 5.7.2019. 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 28.11.2016, registered as Case Crime No. 0637 of 2016, u/s 363, 366 IPC, Section 3(1)(12) SC/ST Act and Section 8 POCSO Act, police station Kotwali Nagar, District Banda 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 a report that notice was issued to the respondent no.3, fixing 30th August, 2019 but, neither acknowledgment nor undelivered cover has been received back so far.
Considering the nature of the order that we propose to pass we do not consider it necessary to invite counter affidavits from the State-respondents or to await service of notice upon respondent no.3.
As per the allegations in the first information report the victim is minor on the date of the incident therefore the Investigating Agency would have to ascertain/determine, on the basis of the material collected during the course of investigation, whether the victim had attained the age of majority on the date of occurrence. Accordingly, the prayer to quash the first information report cannot be accepted at this stage.
This petition is however disposed off by providing that the investigation of the case shall continue and be brought to its logical conclusion but, subject to the petitioners' co-operation in the investigation, petitioner no.2 shall not be arrested till submission of police report under Section 173 (2) CrPC.
It is made clear that this direction would not be operable in case already a report under Section 173(2) Cr.P.C. has been submitted.
Order Date :- 20.11.2019 Sunil Kr Tiwari