Swati Mishra And 4 Others vs State Of U.P. And 3 Others on 4 August, 2023

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Allahabad High Court

Swati Mishra And 4 Others vs State Of U.P. And 3 Others on 4 August, 2023

1. Heard Sri Alok Kumar Srivastava, Advocate holding brief of Sri Atul Singh, learned counsel for the petitioners, Sri Diwakar Mishra, learned counsel for the informant and Sri Rajesh Khare, learned A.G.A. for the State- respondents.

2. The present writ petition has been preferred with the following prayer:-

"i) Issue a writ order or direction in the nature of Writ of Certiorari quashing the impugned first information report dated 4.7.2023 registered as Case Crime No. 300 of 2023, u/s 366, 506 I.P.C., P.S. Nawabganj, District Prayagraj.

ii) Issue a Writ order or direction in the nature of mandamus commanding and directing respondents not to arrest the petitioners in Case Crime No. 300 of 2023, under section 366, 506 I.P.C., P.S. Nawabganj, District Prayagraj".

3. At the very outset, learned counsel for the petitioners, by drawing attention to paragraph No.3 of the affidavit filed in support of the petition, states that till date no charge sheet has been submitted by the investigating officer against the petitioners and in paragraph No.25, it is stated that the concerned police are trying to arrest the petitioners by making pressure upon them. Submission is that the investigation is still pending. We, therefore, proceed to hear the matter.

4. Submission of learned counsel for the petitioners is that the victim- Swati Mishra (petitioner no.1) is major and she had solemnized marriage with the petitioner No.2, Himanshu Tiwari on her own sweet will. As reflected in the F.I.R. itself, she is aged about 21 years. Attention was drawn to the High School Certificates of the petitioner No.1 as well as petitioner No.2, according to which date of birth of petitioner No.1 is 27.11.2003 and that of petitioner No.2 is 28.2.1990. Attention was further drawn to the certificate of registration of marriage, annexed at page No. 31 of the petition. Reliance has been placed on a judgement and order dated 5.12.2022 passed by this Court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) to submit that under identical circumstances the petition was allowed and FIR therein was quashed.

5. The aforesaid order dated 5.12.2022 passed in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) 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. Per contra, learned counsel for the first informant submits that a cognizable offence is made out and on the earlier occasion also one F.I.R. was lodged against the petitioners u/s 363, 366, 506 I.P.C. However, he could not prove anything contrary to the documents produced on record. Learned A.G.A. has also opposed the petition.

7. Before proceeding, it would be pertinent to note that the present case was mentioned just before lunch with the allegation that when the petitioners No. 1 & 2 were coming to the Court, the petitioner No.2- Himanshu Tiwari was forcefully taken away by respondent No.4 along with his companion and a mention was made for the purpose of security of the boy. This Court, therefore, orally directed the security of the present Court to look into the matter and it was indicated that the matter shall be taken after lunch. After lunch, it was pointed out that the boy has returned and both petitioners No.1 & 2 are present in the Court.

8. Petitioners No. 1 & 2 are identified by learned counsel for the petitioners and the informant/respondent No.4, namely, Vijay Sagar @ Gandhiji s/o Late Ram Kumar, is identified by Sri Diwakar Mishra, counsel for the informant, whose presence was directed to be noted in the order sheet.

9. In the facts and circumstances of the case, when this allegation was made that the boy was abducted forcefully by the respondent No.4 and his companion, we proceeded to hear the petitioner No.1 in person who stated that both the petitioners No. 1 & 2 are being threatened by the respondent No.4 and their life is in danger. The petitioner no. 1 has stated that she had left voluntarily with the petitioner no. 2 and there was no use of force or inducement in this regard and both have married also out of free will.

10. The fact that the petitioners No. 1 & 2 are major and have also married could not be disputed by the informant who is also present in the Court.

11. In the facts and circumstances of the case, where petitioner No.1 has stated in categorical terms that she has left voluntarily with petitioner No.2 and there was no use of force or inducement in this regard and from perusal of the F.I.R. also it appears that she had gone away voluntarily as she had accompanied two unknown boys on a motorcycle, we are of the opinion that no offence under Section 366 IPC has been made out. The present petition is supported by a joint affidavit and even the victim has come forward to challenge the criminal proceeding and, therefore, no offence is made out as the ingredients of offence u/s 366 I.P.C. are completely missing.

12. As threat was extended to the petitioners No. 1 & 2, the security officer of this Court Sri Vinod Kumar Singh, present in the Court, is directed to provide all security to the petitioners No. 1 & 2 up to the place where they wish to go. A desire is expressed by the petitioner No.2, Himanshu Tiwari, that they (petitioners) may be provided security up to the vehicle on which they have come to this place.

13. In view of the above, the writ petition succeeds and is allowed. The First Information Report dated 4.7.2023 registered as Case Crime No. 300 of 2023, u/s 366, 506 I.P.C., P.S. Nawabganj, District Prayagraj as well as all consequential proceedings are hereby quashed.

14. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.

Order Date :- 4.8.2023 Vandana

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Allahabad High Court