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2012 DIGILAW 921 (ALL)

Devaki Nandan @ Devo and v. State of U. P.

2012-04-16

RAMESH SINHA

body2012
JUDGMENT Ramesh Sinha, J. Case called out in the revised list. Heard Sri R.V.Mishra, learned counsel for the revisionists, learned AGA for the State and perused the record. As per office report dated 15.3.2012, fresh notices were issued to opp. party Nos. 2 and 3 in pursuance of this Court order dated 6.2.2012, but the same has not been received back after service so far, as per record. Opp. Party No.3, Smt. Rekha, who is the wife of revisionist No.1, Devaki Nandan alias Devo, is said to be living with the revisionist No.1 at present. Hence notice to her is sufficient. So far as the notice to opp. party No.2, Bhan Singh is concerned, this Court consider it desirable that the matter be proceeded as Smt. Rekha, Opp. Party No. 3, is the wife of revisionist No.1 and she being a major girl, is residing with him, hence it appears that opp. party No.2 is not interested in the present matter to contest it before this Court, and the matter pertains to the year 2010, it cannot be allowed to linger on. This Criminal Revision has been preferred against the judgment and order dated 9.10.2009 passed by the Additional Chief Judicial Magistrate, Room No.2, Mathura, by which the learned Magistrate has taken cognizance of the offence and summoned the revisionists vide order dated 2.12.2009 in Criminal Case No.1728 of 2009 (State Vs. Devo and others), under Sections 363, 366 I.P.C., Police Station-Gobardhan, District-Mathura. The brief facts giving rise to the present revision is that a FIR was lodged by opp. party No.2 on 27.4.2009 against the revisionists. The said FIR was challenged by the revisionists before this Court in Criminal Misc. Writ Petition No. 8600 of 2009 ( Smt. Rekha and others Vs. State of U.P. and others) and the opp. party No.3, Smt. Rekha, had appeared before a Division Bench of this Court along with the revisionist No.1, Devaki Nandan alias Devo, and she stated that she has married to the revisionist No.1. Pursuant to the direction issued by this Court vide order dated 15.5.2009, the victim Smt. Rekha was medically examined and her age was reported to be above 18 years and her statement was also recorded under Section 164 Cr.P.C., wherein she admitted that she has married with revisionist No.1 and they are living as husband and wife. Pursuant to the direction issued by this Court vide order dated 15.5.2009, the victim Smt. Rekha was medically examined and her age was reported to be above 18 years and her statement was also recorded under Section 164 Cr.P.C., wherein she admitted that she has married with revisionist No.1 and they are living as husband and wife. The copy of the statement of victim Smt. Rekha recorded under Section 164 Cr.P.C. is annexed as Annexure-7 to the affidavit filed in support of the present Criminal Revision, in which she has categorically stated that she knew the revisionist No.1 since long and he used to come to her house frequently and on 23.4.1989 at about 3.30 in the night, she on her own free will, accompanied the revisionist No.1 and the accused Devaki Nandan alias Devo had not enticed her from her parents' house and she had gone with him to marry and thereafter on 23.4.2009 they married in Jogni Maiya Mandir, Jaipur and they also stayed for about 21 days in Allahabad. The investigation was carried out and the Investigating Officer submitted charge sheet against the revisionists on 11.8.2009, on the basis of which, learned Magistrate took cognizance on 9.10.2009 and further summoned the revisionists for trial on 2.12.2009. Learned counsel for the revisionists argued that order taking cognizance and summoning order passed by the learned Magistrate on the basis of the charge sheet submitted against the revisionists is bad in the eyes of law as opp. party No.3, Smt. Rekha, had married the revisionist No.1 on her own sweet will leaving her parents' house with revisionist No.1 and she is a major girl, no offence under Sections 363 and 366 I.P.C. is made out, hence the cognizance order as well as summoning order passed by the learned Magistrate be quashed. Learned AGA could not dispute the said submissions made by the learned counsel for the revisionists. Having considered the submissions advanced by the learned counsel for the parties, I am of the opinion that the opp. party No.3, Smt. Rekha, being a major girl, aged above 18 years of age, had left her parents' house on her own sweet will with revisionist No.1 and married him, hence no offence is made out against the revisionists under Sections 363, 366 I.P.C.. party No.3, Smt. Rekha, being a major girl, aged above 18 years of age, had left her parents' house on her own sweet will with revisionist No.1 and married him, hence no offence is made out against the revisionists under Sections 363, 366 I.P.C.. The order taking cognizance dated 9.12.2009 and summoning order dated 2.12.2009 are not sustainable in the eyes of law, hence the same are hereby set aside. The revision is allowed accordingly.