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2018 DIGILAW 613 (ALL)

BHARTI v. STATE OF U. P.

2018-03-14

KRISHNA PRATAP SINGH, RAMESH SINHA

body2018
JUDGMENT : Ramesh Sinha and Krishna Pratap Singh, JJ. Sri Rajnesh Kumar Yadav, Advocate has filed his power on behalf of respondent no.3 which is taken on record. 2. Heard Sri Vinod Kumar Tripathi, learned counsel for the petitioners, Sri Rajnesh Kumar Yadav, learned counsel for the respondent no.3 and Sri R.K. Mishra, learned brief-holder for the State and perused the impugned F.I.R. as well as material brought on record. 3. This petition has been filed by the petitioners with a prayer to quash the impugned First Information Report dated 8.3.2018, registered as case crime no.240 of 2018, under section 366 IPC, P.S. Kotwali City, district Bijnor. 4. Sri Ram Sagar Yadav, learned counsel appearing on behalf of Sonika Devi Sharma states that she is the first wife of petitioner no.2 though she has not been made party in the present petition. We accept the vakalatname of Sri Ram Sagar Yadav to appear on behalf of Sonika Devi Sharma. 5. Learned counsel for the petitioners submitted that the marriage of petitioner no.2 with petitioner no.1 is the first marriage, the said fact is mentioned in para no.10 of the present petition. The petitioner no.2 has not performed any marriage with Sonika Devi Sharma as stated by her counsel. The petitioner no.1 and petitioner no.2 are major aged about 21 years and 25 years respectively as per high school certificate. There was love affair between the petitioner no.1 and 2 and they both have performed marriage on 19.12.2017 as per Hindu customs. He next argued that the petitioner no.1 had voluntarily left her parental home and entered into matrimonial alliance with petitioner no.2 and that she was major, it cannot be said that any cognizable offence against the petitioner nos.2 is made out and hence the impugned FIR is liable to be quashed. Learned counsel for the petitioners further submits that as the petitioner nos.1 and 2 are major and they have voluntarily married, then to conceive in view of the judgment of Apex Court rendered in Criminal Appeal No. 1142 of 2013 (Sachin Pawar v. State of U.P) decided on 02.08.2013), that, offence has been committed under Section 366 I.P.C., cannot be approved of. 6. 6. Per contra learned counsel for the respondent no.3 as well as learned brief holder submitted that the impugned FIR is not liable to be quashed on the basis of the submissions made by the learned counsel for the petitioners. 7. Learned counsel for the respondent no.3 as well as learned brief-holder have not been able to demonstrate that either the prosecutrix Smt. Bharti was minor on the date of the incident or that she had been kidnapped or abducted by the petitioner no.2, in view of the above it cannot be said that the petitioner nos.2 has committed any cognizable offence. 8. We are not going to examine with respect to marriage between the petitioner no.2 and petitioner no.1 or earlier marriage of petitioner no.2 with Sonika Devi Sharma. What we find from the record that as per High School Certificate, the petitioner no.1 and petitioner no.2 are major aged about 21 years and 25 years respectively and they are living together. It is not a case of enticing away and it is mere a case of elopement. 9. The writ petition accordingly succeeds and is allowed. 10. The impugned FIR and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed. 11. There shall, however, be no order as to costs. 12. However, it shall be open for the victim Sonika Devi Sharma who claims to be the first wife of petitioner no.2 to avail appropriate legal remedy available under law.