High Court
Case Details
Neutral Citation No. - 2024:AHC:114372-DB Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 9145 of 2024 Petitioner :- Kunal Patel And Another Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Chandra Prakash Misra Counsel for Respondent :- G.A.,Prakash Sharma Hon'ble Vivek Kumar Birla,J. Hon'ble Arun Kumar Singh Deshwal,J.
Legal Reasoning
1. Heard Sri Chandra Prakash Mishra, learned counsel for the petitioners, Sri Prakash Sharma, learned counsel for the informant, learned A.G.A. for the State and perused the record. 2. This writ petition has been filed seeking quashing of the first information report dated 26.07.2023 in Case Crime No.317 of 2023, under Section-363 IPC, Police Station-Vishunpura, District- Kushinagar. A further prayer has been made not to arrest the petitioners in the aforesaid case. 3. On 29.05.2024 the following order was passed:- "Heard learned counsel for the petitioners as well as learned A.G.A. By means of the present petition, the petitioners are assailing the legality and validity of the FIR dated 26.07.2023 as case crime no.317 of 2023 under sections 363 IPC, police station-Vishunpura, District-Kushinagar. It is contended by learned counsel for the petitioners that this FIR was lodged by Smt. Avtari Devi against the petitioner for the alleged act of enticement of her minor daughter Gudiya. The next submission is that both the petitioners got married at Arya Samaj Temple at Tis Hazari, Aligarh and now they are legally wedded couple. To establish the age of petitioner no.2, learned counsel for the petitioner has relied upon the transfer certificate of Class- VIIIth which is not admissible document as per Section 94 of Juvenile Justice Act, 2015. In order to determine the age of the girl, let the girl may be produced by the Investigating Officer concerned to record her 161 and 164 Cr.P.C. statement on or before 06.06.2024 and thereafter, the I.O. concerned shall produce the girl before the concerned Magistrate within next four days for recording her 161 and 164 Cr.P.C. statement. In addition to this, the Chief Judicial Magistrate concern shall organize her ossification test to determine the age of the girl on the date of incident on 26.07.2023. The Chief Medical Officer concern is expected to constitute panel of three senior doctors to conduct her ossification test for determination of her age. After this exercise is over, the Chief Judicial Magistrate concern is expected to remit this report of ossification test as well as 161 and 164 Cr.P.C. statement of the girl before this Court by the next date fixed in a sealed cover. Put up this matter as fresh on 17.06.2024 before appropriate Court along with the aforesaid documents. Since, the parties are engaged in carrying out the aforesaid exercise, the interest of the petitioners in pursuance of FIR dated 26.07.2023 as case crime no.317 of 2023 under sections 363 IPC, police station-Vishunpura, District- Kushinagar is protected till the next date of listing only. " 4. Pursuant to the aforesaid order, the statement recorded under Sections 161 and 164 Cr.P.C. alongwith ossification test report has been produced before this Court. In the first information report the age of the victim is shown to be 16 years. We find that the victim herself has come forward to challenge the first information report by filing the present petition as petitioner no. 2 and the petition is supported by the joint affidavit. The ossification test report dated 06.06.2024 opined that the age of the girl is about 21 to 22 years and therefore she is major. We have also gone through the statement of the victim, herein Gudiya in which she has not supported the prosecution version. She has categorically stated in her statement that she had left her own sweet will with Kunal Patel, petitioner no.1 herein and she is pregnant by two months and she wants to live with him as wife. In the petition, it has been stated that they have married and as such no offence under Section 363 IPC is made out. 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.
Decision
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. Learned A.G.A. submitted that as per ossification test petitioner no.2 is 21 to 22 years and as such admittedly she is major. 7. In view of the above discussion, we are of the considered view that from the first information report, no offence under Section 363 I.P.C. is made out, inasmuch as, the petitioners nos. 1 and 2 are major and the petitioner no. 2 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. 8. In view of the above, the writ petition succeeds and is allowed. The First Information Report dated 26.07.2023 in Case Crime No.317 of 2023, under Section-363 IPC, Police Station- Vishunpura, District- Kushinagar, as well as all consequential proceedings are hereby quashed. 9. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners. 10. Office is directed to return the original statements recorded under Section 161 and 164 Cr.P.C. along with ossification test report in a sealed cover after retaining the photo copy of the same on record as per Rules. Order Date :- 18.7.2024 SK Srivastava