State v. Kalika & Ors) arising out of Case Crime No

Applicant :- Shiv Prasad And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Lko. And Another Counsel for Applicant :- Ravi Prakash Singh,Sachin Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J.

1. The present application under Section 482 Cr.P.C./528 B.N.S.S. has been preferred with the following main prayer:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash/set aside the entire criminal proceeding of Criminal Case No. 1708/2011 (State vs. Kalika & Ors) arising out of Case Crime No. 635/2011, under Sections 363, 366 IPC, Police Station Nawabganj, District Bahraich initiated against the petitioner no. 1 in pursuance of the impugned charge sheet dated 23.04.2012 as well as impugned order dated 2.12.2024 passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, court no. 2, Bahraich as contained in Annexure Nos. 1 & 2 respectively to this petition. It is also prayed that this Hon'ble Court may kindly be pleased to stay the further criminal proceeding of Criminal Case No. 1708/2011 (State vs. Kalika and Ors.) arising out of Case Crime No. 635/2011, under Sections 363, 366 IPC, Police Station Nawabganj, District Bahraich initiated against the petitioner no. 1 in pursuance of the impugned charge sheet dated 23.04.2012 as well as impugned order dated 2.12.2024 passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, court no. 2, Bahraich during pendency of the instant petition in the interest of justice."

2. This Court on 18.02.2025 has passed the following order:- "The charge-sheet dated 23.04.2012 filed against applicant no. 1 is the subject matter of challenge in the present case. Since it is an old matter of the year 2012, therefore, this Court feels that before passing any effective order in the matter, one opportunity of hearing to opposite party no.2, who is father of the victim, is necessary. Learned Government Advocate has accepted notice on behalf of the State of U.P./opposite party no. 1. Let a notice be issued to opposite party no.2 returnable at an early date. Steps be taken within a week. List this case on 26.03.2025 in the list of fresh cases alongwith service report. In the meantime, opposite parties may file counter afÏdavit, if so desire."

3. As per the OfÏce report dated 23.03.2025, the notice was served upon respondent no. 2 in person but neither the respondent no. 2 is present nor any counsel has filed his vakalatnama on his behalf.

4. The applicant no. 1 namely Shiv Prasad (accused in the FIR) and applicant no. 2 namely Neha @ Shafikunnisha (the daughter of respondent no. 2) are present in person.

5. Learned counsel for the applicants has submitted that the applicants had no knowledge about the FIR, the investigation by the Police, the pendency of the criminal case and filing of the charge-sheet therein as no notice of bailable/non bailable warrant and the proceedings under Section 82 Cr.P.C. issued by the police during the investigation and the court concerned during the pendency of the criminal case/trial had ever served upon the applicants and this fact may be verified from the impugned order dated 02.12.2024 itself wherein in the first line of the order, it has been mentioned that all these procedures as mentioned above, were issued on the address- Thana- Dargah Sharif, whereas it has been informed that the applicant is presently residing at Village- Kedar Purwa, P.S. Gilaula, District Shrawasti.

6. Learned counsel for the applicants has further submitted that the marriage has been solemnized between the applicants in the year 2011 and from the wedlock, they have four children and they are living together a happy family life.

7. It is further submitted that the charge-sheet has been filed under Sections 363 & 366 IPC whereas the ingredients for offence under Section 366 IPC are not attracted in the present case.

8. On being asked from the applicant no. 2, who is present in person that whether she was abducted by the applicant no. 1, she has replied that she was not abducted by applicant no. 1. It is further asked that whether she had married to applicant no. 1 under some compulsion or force or seduced to illicit intercourse, she has replied that she was never ever compelled by applicant no. 1 to marry him rather it is her own sweet will that she married to applicant no. 1.

9. Learned counsel for the applicant has submitted that the applicants are ready to participate and co-operate in the proceedings pending before the court concerned.

10. On the other hand, learned AGA has opposed the present application vehemently and has submitted that the applicant is absconding during the investigation by the Police and he had not appeared before the trial court despite the bailable warrant, non bailable warrant and the proceedings under Section 82 Cr.P.C. were initiated against him but unable to dispute the submission made by learned counsel for the applicants.

11. At this stage, learned counsel for the applicants has submitted that liberty may be given to the applicants to file bail application before the trial court which may be directed to be decided in view of law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, (2022) 10 S.C.R. 351 : (2022) 10 SCC 51 and Musheer Alam vs. State of Uttar Pradesh and Another, 2025 SCC Online SC 116, and also to prefer a discharge application before the court below at the appropriate stage and the same may also be directed to be decided expeditiously.

12. Learned A.G.A has no objection to the aforesaid prayer made by learned counsel for the applicants.

13. Keeping in view the aforesaid, the present application is disposed of with liberty as prayed for and with a direction to the court below that if the applicants apply for bail before the court concerned, prayer for bail shall be considered and decided expeditiously in accordance with law.

14. Liberty is also granted to the applicants to move discharge application before the court below at the appropriate stage, and the same shall be decided expeditiously in accordance with law.

15. Taking note of the facts of the case and also the observations made by the Hon'ble Apex Court in the case of Satendra Kumar Antil (Supra) and Musheer Alam (Supra), this Court is of the view that it would be appropriate to observe that it is expected from the Police OfÏcer concerned that for a period of 30 days from today or till the applicants apply for bail, whichever is earlier, they would not take any coercive action against the applicants in the aforesaid case. Order Date :- 26.3.2025 Nitesh NITESH KUMAR TEWARY High Court of Judicature at Allahabad, Lucknow Bench

Applicant :- Shiv Prasad And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Lko. And Another Counsel for Applicant :- Ravi Prakash Singh,Sachin Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J.

1. The present application under Section 482 Cr.P.C./528 B.N.S.S. has been preferred with the following main prayer:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash/set aside the entire criminal proceeding of Criminal Case No. 1708/2011 (State vs. Kalika & Ors) arising out of Case Crime No. 635/2011, under Sections 363, 366 IPC, Police Station Nawabganj, District Bahraich initiated against the petitioner no. 1 in pursuance of the impugned charge sheet dated 23.04.2012 as well as impugned order dated 2.12.2024 passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, court no. 2, Bahraich as contained in Annexure Nos. 1 & 2 respectively to this petition. It is also prayed that this Hon'ble Court may kindly be pleased to stay the further criminal proceeding of Criminal Case No. 1708/2011 (State vs. Kalika and Ors.) arising out of Case Crime No. 635/2011, under Sections 363, 366 IPC, Police Station Nawabganj, District Bahraich initiated against the petitioner no. 1 in pursuance of the impugned charge sheet dated 23.04.2012 as well as impugned order dated 2.12.2024 passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, court no. 2, Bahraich during pendency of the instant petition in the interest of justice."

2. This Court on 18.02.2025 has passed the following order:- "The charge-sheet dated 23.04.2012 filed against applicant no. 1 is the subject matter of challenge in the present case. Since it is an old matter of the year 2012, therefore, this Court feels that before passing any effective order in the matter, one opportunity of hearing to opposite party no.2, who is father of the victim, is necessary. Learned Government Advocate has accepted notice on behalf of the State of U.P./opposite party no. 1. Let a notice be issued to opposite party no.2 returnable at an early date. Steps be taken within a week. List this case on 26.03.2025 in the list of fresh cases alongwith service report. In the meantime, opposite parties may file counter afÏdavit, if so desire."

3. As per the OfÏce report dated 23.03.2025, the notice was served upon respondent no. 2 in person but neither the respondent no. 2 is present nor any counsel has filed his vakalatnama on his behalf.

4. The applicant no. 1 namely Shiv Prasad (accused in the FIR) and applicant no. 2 namely Neha @ Shafikunnisha (the daughter of respondent no. 2) are present in person.

5. Learned counsel for the applicants has submitted that the applicants had no knowledge about the FIR, the investigation by the Police, the pendency of the criminal case and filing of the charge-sheet therein as no notice of bailable/non bailable warrant and the proceedings under Section 82 Cr.P.C. issued by the police during the investigation and the court concerned during the pendency of the criminal case/trial had ever served upon the applicants and this fact may be verified from the impugned order dated 02.12.2024 itself wherein in the first line of the order, it has been mentioned that all these procedures as mentioned above, were issued on the address- Thana- Dargah Sharif, whereas it has been informed that the applicant is presently residing at Village- Kedar Purwa, P.S. Gilaula, District Shrawasti.

6. Learned counsel for the applicants has further submitted that the marriage has been solemnized between the applicants in the year 2011 and from the wedlock, they have four children and they are living together a happy family life.

7. It is further submitted that the charge-sheet has been filed under Sections 363 & 366 IPC whereas the ingredients for offence under Section 366 IPC are not attracted in the present case.

8. On being asked from the applicant no. 2, who is present in person that whether she was abducted by the applicant no. 1, she has replied that she was not abducted by applicant no. 1. It is further asked that whether she had married to applicant no. 1 under some compulsion or force or seduced to illicit intercourse, she has replied that she was never ever compelled by applicant no. 1 to marry him rather it is her own sweet will that she married to applicant no. 1.

9. Learned counsel for the applicant has submitted that the applicants are ready to participate and co-operate in the proceedings pending before the court concerned.

10. On the other hand, learned AGA has opposed the present application vehemently and has submitted that the applicant is absconding during the investigation by the Police and he had not appeared before the trial court despite the bailable warrant, non bailable warrant and the proceedings under Section 82 Cr.P.C. were initiated against him but unable to dispute the submission made by learned counsel for the applicants.

11. At this stage, learned counsel for the applicants has submitted that liberty may be given to the applicants to file bail application before the trial court which may be directed to be decided in view of law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, (2022) 10 S.C.R. 351 : (2022) 10 SCC 51 and Musheer Alam vs. State of Uttar Pradesh and Another, 2025 SCC Online SC 116, and also to prefer a discharge application before the court below at the appropriate stage and the same may also be directed to be decided expeditiously.

12. Learned A.G.A has no objection to the aforesaid prayer made by learned counsel for the applicants.

13. Keeping in view the aforesaid, the present application is disposed of with liberty as prayed for and with a direction to the court below that if the applicants apply for bail before the court concerned, prayer for bail shall be considered and decided expeditiously in accordance with law.

14. Liberty is also granted to the applicants to move discharge application before the court below at the appropriate stage, and the same shall be decided expeditiously in accordance with law.

15. Taking note of the facts of the case and also the observations made by the Hon'ble Apex Court in the case of Satendra Kumar Antil (Supra) and Musheer Alam (Supra), this Court is of the view that it would be appropriate to observe that it is expected from the Police OfÏcer concerned that for a period of 30 days from today or till the applicants apply for bail, whichever is earlier, they would not take any coercive action against the applicants in the aforesaid case. Order Date :- 26.3.2025 Nitesh NITESH KUMAR TEWARY High Court of Judicature at Allahabad, Lucknow Bench