Note:- Bench Reader will attach this at the top of the first v. St at e of Ut t aranchal

Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. H I GH COURT OF UTTA RA N CH A L A T N A I N I TA L Cr i m i n a l M i sc. A p p l i ca t i o n N o . 2 4 2 o f 2 0 0 6

1. Rakha D/ o Shr i Cham an Lal 2. Prakashi W/ o Shr i Cham an Lal Bot h R/ o Bhadarabad P.S. Jwalapur Dist r ict Har idwar Versus

1. St at e of Ut t aranchal 2. Chief Judicial Magist rat e, Har idwar Dist r ict Har idwar ..….Applicant s

3. Suraj Pal S/ o Shr i Nak li Ram Valm ik i R/ o Raj eev Colony near Rahi Mot el Haridwar, Dist r ict Haridwar .. .Respondent s Sri Parikshit Saini learned counsel for t he applicant s. H o n ' b l e J. C. S. Ra w a t , J. 1 . The pet it ion under sect ion 482 Cr.P.C. has been filed for quashing t he chargesheet dat ed 19.08.2005 and cognizance order dat ed 19.09.2005 passed by t he Chief Judicial Magist rat e, Har idwar in case No.5244/ 2005 under sect ion 363, 366, 376 I PC. 2 . Brief fact s of t he case are t hat an FI R was lodged by t he respondent No.3- Suraj Pal alleging t herein t hat his daught er- Km . Sangeet a was ent iced away by t he applicant - Rekha. I t was furt her alleged t hat t he vict im was t aken t o bus st and where t he accused Sat ish, Deepak, Kallu and m ot her of Rekha m et her. Thereaft er, t he vict im was t aken t o Delhi and aft er som e t im e she cam e back t o Haridw ar aft er lodging t he FI R. Thereaft er, t he chargesheet w as subm it t ed under sect ions 363, 366, 376 I PC against t he accused Deepak. The chargesheet was also subm it t ed against rest of t he accused Sat ish, Kallu, Rekha and Prakashi under sect ion 363 & 366 I PC. But , t he learned Magist rat e has t aken cognizance against all t he accused persons under sect ions 363, 366 & 376 I PC vide order dat ed

19.09.2005. Feeling aggr ieved by t his, t he present pet it ion has been filed. 3 . Learned counsel for t he applicant cont ended t hat t he st at em ent of t he girl was recorded by t he I .O. on

06.07.2005. The gir l has st at ed t hat she had love affair w it h t he accused Deepak and she went w it h him in her own record. She has furt her st at ed t hat she is 21 years of age. Learned counsel for t he applicant s cont ended t hat t he learned Magist rat e while t reat ing her m inor gave her cust ody t o t he fat her. When she was exam ined sect ion 164 Cr.P.C. corroborat ed t he st ory as narrat ed in t he FI R. When a specific quest ion regarding rape was put t o her, she st at ed t hat she was for ced t o rem ain w it h t he accused in t he night like his w ife. Lear ned counsel t he applicant s cont ended t hat t he case of rape is not m ade out against t he present applicant s even if t he conclusion of t he I .O. is t aken int o account . Perusal of t he record reveals t hat t here is no aver m ent of rape against t he present applicant s. The Magist rat e has not given any reason as t o why t he cognizance was t aken against t he present applicant s under sect ion 376 I PC. There is no reason why t he m aj or gir l was given in t he cust ody of her parent s. The fundam ent al pr inciple of law is t hat if t he gir l is m aj or, she should be given libert y t o go according t o her own choice. The gir l has adm it t ed t hat she is about 21 years of age. Even t hen, t he Magist rat e has passed t he order which is against t he pr inciple of law. Perusal of t he record reveals t hat t he Magist rat e has not applied his m ind while passing t he cognizance order. I n v iew of t he above, t he cognizance order is liable t o be quashed only against t he present applicant s. 4 . Therefore, t he cognizance or der dat ed 19.09.2005 passed by t he Chief Judicial Magist rat e, Haridwar in case No.5244/ 2005 is hereby quashed so far as t he present applicant s are concerned. The case is rem it t ed back t o t he learned Magist rat e, who w ill pass t he appropr iat e order in t he light of t he observat ions m ade above. 5 ) The pet it ion is disposed of accordingly. Dat ed 20.04.2006 LSR ( J.C.S. Ra w a t , J.)