Allahabad High Court
Smt. Seema Bhati @ Samaira Khan And 2 ... vs State Of U.P. And 3 Others on 4 December, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 31359 of 2018 Petitioner :- Smt. Seema Bhati @ Samaira Khan And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vivek Kumar Singh Counsel for Respondent :- G.A.,Hari Prakash Mishra,Kamlesh Kumar Mishra Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents no. 1, 2 and 3; and perused the record.
The instant petition seeks quashing of the first information report dated 8.10.2018 registered as Case Crime No. 0729 of 2018 at P.S. Noida Phase-2, District Gautam Buddh Nagar, U/s 366 I.P.C.
The allegations in the impugned first information report is to the effect that victim Seema Bhati D/o Sripal Bhati, aged about 20 years, had gone missing since 7.10.2018 and it is suspected that she has been abducted by the accused.
The victim Seema Bhati along with accused have jointly filed this petition by claiming that they are adult and they have voluntarily married each other and that the allegations against them are false.
On 31.10.2018, following order was passed:-
"Learned A.G.A. has accepted notice on behalf of opposite party nos. 1, 2 and 3.
Issue notice to opposite party no. 4.
Each one of the respondents is accorded four weeks' time to file counter affidavit.
Rejoinder affidavit may also be filed within two weeks' thereafter.
List after six weeks.
On the matter being taken up today, Smt.Seema Bhati @ Samaira Khan, petitioner no. 1 is present in Court and she claims that she is major and on her own freewill, walked out from her parental house and has entered into matrimonial alliance with Gulam Husain @ Chhiddu, petitioner no. 2.
Both the petitioners have 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 366 I.P.C., cannot be approved of.
The petitioners are present in the Court and have been identified by their counsel.
Prima facie arguments advanced appear to have some substance and require consideration by this Court, as such pursuant to impugned F.I.R. dated 08.10.2018 registered as Case Crime No. 0729 of 2018 under Section 366 IPC Police Station NOIDA Fase-2, District Gautam Buddh Nagar no coercive action be taken against the petitioners."
Pursuant to the above order, the office has submitted a report that the petitioner has not taken any steps to serve the respondent no. 4.
However, counter affidavit has been filed by the respondent no. 4. In the counter affidavit, it has been stated that the victim was already married with one Sumit Vaisla and without a legal divorce, there cannot be any valid marriage of the victim with the accused.
Be that as it may, as it is not in dispute that the victim has attained the age of majority, if the victim is in a relationship with anyone voluntarily, the offence punishable under Section 366 I.P.C would not be made out.
However without expressing any conclusive opinion in that regard, we deem it appropriate to dispose off this petition by providing that the petitioner no. 2 (Gulam Husain @ Chhiddu) shall produce the petitioner no. 1 Smt. Seema Bhati @ Samaira Khan (victim) before the Investigating Officer of the case by or before 31st December, 2019. Upon production of the victim before the Investigating Officer, the statement of the victim shall be recorded under Section 161 Cr.P.C. Thereafter, the victim shall be produced before the Chief Judicial Magistrate, Gautam Buddh Nagar for recording her statement under Section 164 Cr.P.C. On the basis of her statement and the material collected during investigation, police report under Section 173(2) Cr.P.C. shall be submitted.
Subject to above, till submission of police report under Section 173(2) Cr.P.C., the petitioners shall not be arrested in the aforesaid case. It is made clear that if the victim is not produced as above, there would be no protection and the investigating officer would be free to bring the investigation to its logical conclusion as per law.
The petition is disposed off.
Order Date :- 4.12.2019/Saurabh