Allahabad High Court
Rohitash Sharma @ Rohit And Another vs State Of U.P. And 3 Others on 28 August, 2020
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 48 Case :- CRIMINAL MISC. WRIT PETITION No. - 5379 of 2020 Petitioner :- Rohitash Sharma @ Rohit And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shashi Prakash Giri,Avanish Pratap Singh Counsel for Respondent :- G.A.,Vidyapati Tripathi Hon'ble Manoj Misra,J.
Hon'ble Anil Kumar-IX,J.
Heard Shri Manish Kumar Pandey for the petitioner, learned AGA for respondent Nos.1 to 3 and perused the record.
The instant petition seeks quashing of the FIR dated 06.03.2020 registered as Case Crime No.0090 of 2020 at Police Station-Atrauli, District-Aligarh, under Section 363 & 366 IPC.
The allegations in the impugned first information report, which has been lodged by father of the victim is that the victim-Vipin Kumari, who is aged about 17 years, has been enticed away by the accused-Vikash Sharma.
This petition has been filed by the victim and the accused Rohitash Sharma, claiming that victim is an adult and she has voluntarily married the accused and, therefore, no offence punishable under Sections 363 and 366 IPC would be made out.
On 15.06.2020, after hearing the arguments, the Court passed following order:
" This petition has been filed under Article 226 of the Constitution of India, by Rohitash Sharma @ Rohit and another, with a prayer that petitioner be not arrested in pursuance of First Information Report dated 06.03.2020 in Case Crime No. 0090 of 2020, under Sections 363, 366 I.P.C., P.S. Atrauli, District Aligarh, during the pendency of present writ petition along with a further prayer for quashing the entire proceeding of above-mentioned case crime number.
Learned counsel for the petitioner argued that prosecutrix is residing with petitioner as legally wedded wife. It is under her own consent. Certificate of High School has been filed along with petition, wherein her age is about 17 years. No offence is made out. Petitioner has been falsely implicated.
Learned counsel for the informant has filed Vakalatnama and the same has been taken on record. An objection has been raised that even on the basis of this certificate of matriculation, prosecutrix is minor. Informant is not aware as to whether, she is alive or not. Neither joint affidavit is there nor her statement is on record.
The Chief Judicial Magistrate, Aligarh is being directed to ensure for getting statement of prosecutrix recorded under Section 164 Cr.P.C. and her age determination by Medical Board be got made. Petitioner shall ensure presence of prosecutrix along with information to Investigating Officer, who too will be present before Magistrate concerned, for getting her statement recorded. Her medical age determination shall be got made by the Board on the pretext of Investigating Officer. Thereafter, report of same be filed before this Court.
List on 28th July, 2020 for hearing before appropriate Bench.
Counter affidavit, if any, by learned A.G.A. as well as learned counsel for the informant, may be filed in between.
Till above date, no coercive action be taken against the petitioner in above-mentioned case crime number, provided they cooperate with above direction of this Court. "
Pursuant to the above order, according to the learned counsel for the petitioner, the victim had appeared for her statement under Section 164 Cr.P.C. There she stated that she had been voluntarily with the accused and is pregnant.
Although, the learned AGA was required to file counter affidavit but till date no counter affidavit has been filed.
Considering the nature of the order we propose to pass, we do not consider it necessary to grant further time to learned AGA to file counter affidavit. This petition is disposed off by providing that investigation of the case shall continue and brought to its logical conclusion but the petitioner No.1, namely, Rohitash Sharma, shall not be arrested till submission of the police report under Section 173(2) Cr.P.C. provided he co-operates in the investigation.
It is made clear that the above protection would not come in the way of any proceeding relating to the custody of the victim.
Order Date :- 28.8.2020 Ashutosh Pandey