Others v. State of U.P. and

1. Heard Mr. Ashutosh, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Ankit Tiwari, Advocate, holding brief of Mr. Utkarsh Shukla, the learned counsel representing-opposite parties-2 and 3.

2. Applicants-Sohel and 3 Others, who are charge sheeted accused and facing trial before Court below, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer;- "It is therefore Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the entire proceedings of Special Case No. 957 of 2023 arising out of Case Crime No. 256 of 2023 under Sections 363, 366, 376 and 323 IPC and 3/4 POCSO Act, Police Station Sahawar, District-Kashganj pending in the Court of Special Judge POCSO Act/Additional District and Sessions Judge, Kashganj on the basis of Compromise. It is further prayed that this Hon'ble court may graciously be pleased to stay the entire proceedings of Special Case No. 957 of 2023 arising out of Case Crime No. 256 of 2023 under Sections 363, 366, 376 and 323 IPC and 3/4 POCSO Act, Police Station Sahawar, District-Kashganj pending in the Court of Special Judge POCSO Act/Additional District and Sessions Judge, Kashganj during the pendency of instant application before this Hon'ble Court. And/or pass such other and further order or direction which this Hon'ble Court may deem fit and proper in the interest of justice."

3. On the matter being taken up, the learned A.G.A. submits that applicants have already approached this Court by means of Criminal Misc. Writ Petition No. 13873 of 2023 (Smt. Mantasa and 6 Others Vs. State of U.P. and 2 Others).

4. By means of aforesaid writ petition, it is the veracity of the FIR dated 20.08.2023 giving rise to present criminal proceedings that was challenged.

5. A Division Bench of this Court upon appreciation of the submission urged by the learned counsel for petitioner and upon perusal of record passed the following interim order dated 12.09.2023;- "1. Heard Sri Ashutosh, learned counsel for the petitioners through video conferencing as well as Sri Ratan Singh, learned A.G.A. for the State respondents and perused the record.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 20.8.2023 registered as Case Crime No. 256 of 2023, under Section 363 and 366 IPC, PS Sahawar, District Kasganj, 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 petitioner is that even as the first information report the victim (petitioner no. 1-Smt Mantasa) is aged about 17 years and as per High School Certificate her date of birth is 17.7.2006 and according to Personal Law she is entitled to get married. By drawing attention to the contents of first information report itself, it is alleged that the victim was sleeping with the informant on the rooftop and went missing and this was found by the informant in the morning, which clearly reflects that the accused persons have not committed any offence. It is submitted that the petitioner no. 1 herein married petitioner no. 2 whereas the entire family has been implicated in the present case. Submission, therefore, is that in any case the victim has attained sufficient maturity to understand her welfare and has also come forward to challenge the first information report by joining the petitioners and by filing the joint affidavit.

4. Per contra, learned AGA has opposed the petition.

5. Matter requires consideration.

6. Issue notice to the respondent/informant returnable at an early date.

7. All the respondents are granted four weeks time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit.

8. List immediately thereafter.

9. Till the next date of listing or till submission of police report under Section 173 (2) CrPC, whichever is earlier, the petitioner herein shall not be arrested in pursuance of the impugned First Information Report dated 20.8.2023 registered as Case Crime No. 256 of 2023, under Section 363 and 366 IPC, PS Sahawar, District Kasganj, provided the petitioners cooperate in the investigation."

6. According to the learned A.G.A., the aforesaid writ petition is still pending.

7. At this juncture, the Court confronted the learned counsel for applicants that in view of the pendency of aforementioned writ petition and also the law laid down by the Apex Court that a writ petition challenging the veracity of an FIR does not become infructuous upon submission of police report, this application is required to be heard along with aforementioned writ petition.

8. Since the prosecutrix has solemnized marriage (Nikah) with applicant-1 and is residing with applicant-1 as his legally wedded wife, therefore, in view of the law laid down by Apex Court in the case of K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056 and Mafat Lal Vs. State of Rajasthan, (2022) 6 SCC 589, the criminal prosecution of accused-applicants cannot be sustained.

9. Be that as it may, since the veracity of the FIR is already the subject matter of aforementioned writ petition and in view of the law laid down by the Apex Court that merely upon submission of charge sheet/police report in terms of Section 173(2) Cr.P.C. by the Investigating Officer, the writ petition challenging the FIR does not become infructuous, it is desirable that this application be heard along with aforementioned writ petition.

10. At this juncture, the learned counsel for applicants contends that this application be dismissed as withdrawn with liberty to applicants to seek their remedy before the Division Bench in the writ petition already pending.

11. Learned A.G.A. representing State-opposite party-1 and the learned counsel representing opposite parties 2 and 3 have no objection to the prayer made by the learned counsel for applicants.

12. In view of above, this application is, accordingly, dismissed as withdrawn at this stage.

13. Interim order, if any, stands vacated. Order Date :- 20.3.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad

1. Heard Mr. Ashutosh, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Ankit Tiwari, Advocate, holding brief of Mr. Utkarsh Shukla, the learned counsel representing-opposite parties-2 and 3.

2. Applicants-Sohel and 3 Others, who are charge sheeted accused and facing trial before Court below, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer;- "It is therefore Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the entire proceedings of Special Case No. 957 of 2023 arising out of Case Crime No. 256 of 2023 under Sections 363, 366, 376 and 323 IPC and 3/4 POCSO Act, Police Station Sahawar, District-Kashganj pending in the Court of Special Judge POCSO Act/Additional District and Sessions Judge, Kashganj on the basis of Compromise. It is further prayed that this Hon'ble court may graciously be pleased to stay the entire proceedings of Special Case No. 957 of 2023 arising out of Case Crime No. 256 of 2023 under Sections 363, 366, 376 and 323 IPC and 3/4 POCSO Act, Police Station Sahawar, District-Kashganj pending in the Court of Special Judge POCSO Act/Additional District and Sessions Judge, Kashganj during the pendency of instant application before this Hon'ble Court. And/or pass such other and further order or direction which this Hon'ble Court may deem fit and proper in the interest of justice."

3. On the matter being taken up, the learned A.G.A. submits that applicants have already approached this Court by means of Criminal Misc. Writ Petition No. 13873 of 2023 (Smt. Mantasa and 6 Others Vs. State of U.P. and 2 Others).

4. By means of aforesaid writ petition, it is the veracity of the FIR dated 20.08.2023 giving rise to present criminal proceedings that was challenged.

5. A Division Bench of this Court upon appreciation of the submission urged by the learned counsel for petitioner and upon perusal of record passed the following interim order dated 12.09.2023;- "1. Heard Sri Ashutosh, learned counsel for the petitioners through video conferencing as well as Sri Ratan Singh, learned A.G.A. for the State respondents and perused the record.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 20.8.2023 registered as Case Crime No. 256 of 2023, under Section 363 and 366 IPC, PS Sahawar, District Kasganj, 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 petitioner is that even as the first information report the victim (petitioner no. 1-Smt Mantasa) is aged about 17 years and as per High School Certificate her date of birth is 17.7.2006 and according to Personal Law she is entitled to get married. By drawing attention to the contents of first information report itself, it is alleged that the victim was sleeping with the informant on the rooftop and went missing and this was found by the informant in the morning, which clearly reflects that the accused persons have not committed any offence. It is submitted that the petitioner no. 1 herein married petitioner no. 2 whereas the entire family has been implicated in the present case. Submission, therefore, is that in any case the victim has attained sufficient maturity to understand her welfare and has also come forward to challenge the first information report by joining the petitioners and by filing the joint affidavit.

4. Per contra, learned AGA has opposed the petition.

5. Matter requires consideration.

6. Issue notice to the respondent/informant returnable at an early date.

7. All the respondents are granted four weeks time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit.

8. List immediately thereafter.

9. Till the next date of listing or till submission of police report under Section 173 (2) CrPC, whichever is earlier, the petitioner herein shall not be arrested in pursuance of the impugned First Information Report dated 20.8.2023 registered as Case Crime No. 256 of 2023, under Section 363 and 366 IPC, PS Sahawar, District Kasganj, provided the petitioners cooperate in the investigation."

6. According to the learned A.G.A., the aforesaid writ petition is still pending.

7. At this juncture, the Court confronted the learned counsel for applicants that in view of the pendency of aforementioned writ petition and also the law laid down by the Apex Court that a writ petition challenging the veracity of an FIR does not become infructuous upon submission of police report, this application is required to be heard along with aforementioned writ petition.

8. Since the prosecutrix has solemnized marriage (Nikah) with applicant-1 and is residing with applicant-1 as his legally wedded wife, therefore, in view of the law laid down by Apex Court in the case of K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056 and Mafat Lal Vs. State of Rajasthan, (2022) 6 SCC 589, the criminal prosecution of accused-applicants cannot be sustained.

9. Be that as it may, since the veracity of the FIR is already the subject matter of aforementioned writ petition and in view of the law laid down by the Apex Court that merely upon submission of charge sheet/police report in terms of Section 173(2) Cr.P.C. by the Investigating Officer, the writ petition challenging the FIR does not become infructuous, it is desirable that this application be heard along with aforementioned writ petition.

10. At this juncture, the learned counsel for applicants contends that this application be dismissed as withdrawn with liberty to applicants to seek their remedy before the Division Bench in the writ petition already pending.

11. Learned A.G.A. representing State-opposite party-1 and the learned counsel representing opposite parties 2 and 3 have no objection to the prayer made by the learned counsel for applicants.

12. In view of above, this application is, accordingly, dismissed as withdrawn at this stage.

13. Interim order, if any, stands vacated. Order Date :- 20.3.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad