Allahabad High Court
Sakshi Pathak And 2 Others vs State Of U.P. And 3 Others on 26 April, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 5163 of 2023 Petitioner :- Sakshi Pathak And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- G.A.,Dhirendra Kumar Verma,Gaurav Tiwari Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Supplementary affidavit filed today is taken on record.
Heard Shri Santosh Kumar Mishra, learned counsel for the petitioners, Ms. Juhi Srivastava, Advocate holding brief of Shri Dhirendra Kumar Verma, learned counsel for the informant, Shri Ratan Singh, learned A.G.A. for the State and perused the record.
The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 06.03.2023 registered as Case Crime No. 186 of 2023, under Sections 363, 366 & 120B I.P.C., Police Station Khorabar, District Gorakhpur.
Submission of learned counsel for the petitioners is that as per mark sheet of the secondary school examination, 2018 (Annual), the date of birth of petitioner no. 1, Sakshi Pathak is 14.02.2004 and as per the High School Examination marks-sheet, the date of birth of petitioner no. 2, Prem Nath Chauhan is 03.07.1992 and as such, the petitioners no. 1 and 2 are major and they have married on their sweet will and no offence has been committed. By drawing attention to Annexure no. 3 to the affidavit, it is submitted that they have registered their marriage before the Marriage Registration Officer Gorakhpur. 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.
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."
Ms. Juhi Srivastava, learned counsel appearing on behalf of the informant submits that the petitioner no. 2 is already married person and therefore, this marriage is not valid. Replying to the same, learned counsel for the petitioner has drawn the attention of the Court to the contents of the supplementary affidavit and submitted that the petition under Section 9 of the Hindu Marriage Act was filed on 17.07.2018 by petitioner no. 2 against her first wife Rinki Chauhan. Thereafter, Rinki Chauhan has married again and she has given birth to a male child out of the subsequent wedlock and, as such, it is clear that every fact was known to all the petitioners and in any case no offence under Sections 363, 366 I.P.C. has been made out nor question of any offence having been committed with the aid of Section 120-B I.P.C. arise.
Learned A.G.A. has opposed the petition, however, could not dispute the aforesaid fact.
In view of the above discussion, we are of the considered view that from the first information report, no offence under Sections 366, 363 and 120B I.P.C. is made out, inasmuch as, the petitioners nos. 1 and 2 are major and the petitioner no. 1 has come up with the categorical stand that she had left her home with the petitioner no. 1 willingly and is living with him as a married woman.
In view of the above, the writ petition succeeds and is allowed. The First Information Report dated 06.03.2023 registered as Case Crime No. 186 of 2023, under Sections 363, 366 & 120-B I.P.C., Police Station- Khorabar, District- Gorakhpur 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.
Order Date :- 26.4.2023 Brijesh Maurya