Allahabad High Court
Smt. Malti Devi And Another vs State Of U.P. And 3 Others on 17 July, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:142613-DB Reserved A.F.R. Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 7644 of 2023 Petitioner :- Smt. Malti Devi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Udayveer Singh Counsel for Respondent :- G.A.,Anil Kumar Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Udayveer Singh, learned counsel for the petitioners, Sri Anil Kumar, learned counsel for the informant and Sri Rajesh Kumar Sacchan, learned State Law Officer appearing for the State-respondents.
2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 04.05.2023 registered as Case Crime No. 214 of 2023, under Section 366 I.P.C., P.S.- Rath, District- Hamirpur, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
3. Submission of learned counsel for the petitioners is that as per Junior High School Marksheet, the date of birth of petitioner no. 1, Smt. Malti Devi is 10.07.2001 and as per the Aadhar card and PAN Card, the date of birth of petitioner no. 2, Rajkumar is 01.01.1992 and as such, the petitioners no. 1 and 2 are major and they have married on their sweet will, therefore, no offence has been committed. By drawing attention to Annexure-4 to the petition, it is submitted that online application for registration of marriage has also been submitted. The present petition is also supported by a joint affidavit of the petitioners nos. 1 and 2. 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.
4. 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."
5. Per contra, learned counsel for the informant and learned State Law Officer sought to oppose the prayer. They have stated that petitioner no. 1, Smt. Malti Devi was earlier married to Mangal Singh on 17.02.2023. The first information report relating to this writ petition is registered only u/s 366 I.P.C. The Court has to consider whether the offence u/s 366 I.P.C. has been committed against accused/petitioner no. 2, Rajkumar. No complaint case regarding bigamy has been registered against petitioner no. 2.
6. For an offence of bigamy is punishable u/s 494 I.P.C. or Section 495 I.P.C. As per the provisions given in Section 198(1)(c) Cr.P.C., offence is non-cognizable and only a complaint case can be filed by the aggrieved person i.e. husband or wife or in case of wife by her father, mother, brother, sister, son or daughter or by her father's or mother's, brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption.
7. No averments has been made on behalf of learned counsel for the informant or the State Law Officer that any of the relatives of petitioner no.1, Smt. Malti Devi has filed complaint case regarding alleged bigamy by petitioner no. 2, Rajkumar in any court.
8. To ascertain whether prima facie, offence u/s 366 I.P.C. is made out, it is necessary to peruse Sections 362 and 366 I.P.C. which are quoted hereunder :-
362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Ingredients :- This section requires two things :-
(1) forceful compulsion or inducement by deceitful means;
(2) the object of such compulsion or inducement must be the going of a person from any place.
The expression "deceitful means" includes a misleading statement. It is, really speaking, a matter of intention. The intention of the accused is the basis and gravamen of the charge. If the consent of the person is freely and voluntarily given, there will be no abduction. Unlike kidnapping, abduction as defined u/s 362 I.P.C. is not an substantive offence under the Code but abduction is an auxilliary act and is made criminal and punishable only when it is done with one or other intention specified in Section 366 I.P.C.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
Ingredients :- This section requires :-
(1) kidnapping or abducting of a woman;
(2) such kidnapping or abduction must be -
(i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or
(ii) 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; or
(iii) by means or criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be forced or seduced to illicit intercourse.
Section 366 I.P.C. only applies when the woman abducted has no intention of marriage or lawful intercourse when abducted. Mere abduction does not bring the accused under the ambit of this penal section.
In Gabbu Vs. State of M.P., AIR 2006 SC 2461, the Apex Court has held that so far as the charge u/s 366 I.P.C. is concerned, mere finding that a woman was abducted is not enough. It must further be proved that the abduction is for the purposes mentioned in Section 366 I.P.C.
In Shahjahan Vs. State, 2011 Cr.L.J. 573, the Apex Court has held :-
"In order to establish an offence u/s 366 I.P.C., it must first be established that the offence of kidnapping under Section 361 I.P.C. or abduction under Section 362 I.P.C. has been proved. It must then be shown that such kidnapping or abduction was with the contumacious intent referred to under Section 366 I.P.C."
9. The essential condition for the application of Section 366 I.P.C. is that there is kidnapping or abduction of a woman with the intention to compel her or knowing it to be likely that she will be compelled to marry any person against her will or will be forced or seduced to illicit intercourse.
10. In such view of the matter, we find that the essential ingredients of Section 362 I.P.C. or even Section 366 I.P.C. are not fulfilled against the petitioner no. 2, Rajkumar.
11. Under these facts and circumstances of the case, we are inclined to allow the writ petition.
12. Accordingly, the writ petition stands allowed. The First Information Report dated 04.05.2023 registered as Case Crime No. 214 of 2023, under Section 366 I.P.C., P.S.- Rath, District- Hamirpur, as well as all consequential proceedings are hereby quashed.
13. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.
Order Date :- 17.07.2023 KS