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2021 DIGILAW 1333 (ALL)

Kamlesh Chauhan v. State Of U. P.

2021-11-11

RAJESH SINGH CHAUHAN

body2021
JUDGMENT : 1. List revised. None appears for the petitioners nor any request for adjournment of the case has been made. However, Sri Aniruddh Kumar Singh, learned AGA-I for the State is present. 2. Since both the petitions are relating to one and the same incident, therefore, they are being decided by a common order. 3. In the petition bearing U/S 482/378/407 No.5095 of 2013 this Court vide order dated 11.10.2013 granted interim order admitting the petition, which reads as under:- "Kamlesh Chauhan and Kavita Devi are present along with their minor child. They have been identified by Anuradha Singh, Advocate. Admit. Issue notice to opposite-party no.2 to file counter-affidavit, if any, within two months. List thereafter. Till then, further proceedings of Criminal Case No. 33 of 2011, Case Crime No. 808 of 2010, pending in the court of Judicial Magistrate, Bahraich, shall remain stayed." 4. In the petition bearing U/S 482/378/407 No.5094 of 2013 this Court vide order dated 11.10.2013 granted interim order admitting the petition, which reads as under:- "Kamlesh Chauhan and Kavita Devi are present along with their minor child. They have been identified by Anuradha Singh, Advocate. Admit. Issue notice to opposite-party no.2 to file counter-affidavit, if any, within two months. List thereafter along with Petition No. 5095 of 2013 (u/s 482 Cr.P.C.). Till then, further proceedings of S.T.No. 257 of 2013, Case Crime No. 1035 of 2010, pending in the court of Sessions Judge, Bahraich, shall remain stayed." 5. While granting interim order, this Court took cognizance that petitioner-Kamlesh Chauhan appeared before the Court along with his wife Kavita Devi and their minor child and those persons were identified by their advocate. Even as per the statement of the prosecutrix under Section 164 Cr.P.C. (Annexure No.6 to the leading petition), she has categorically submitted that she is living with the present petitioner Kamlesh Chauhan and her parents were torturing her. On account of torture, she consumed poison once. She has further stated that she got married with petitioner Kamlesh Chauhan in the month of April by means of court marriage. 6. Therefore, prima facie, it appears that no offence under Sections 363 & 366 IPC is made out. 7. On account of torture, she consumed poison once. She has further stated that she got married with petitioner Kamlesh Chauhan in the month of April by means of court marriage. 6. Therefore, prima facie, it appears that no offence under Sections 363 & 366 IPC is made out. 7. It would be not out of place to indicate here that Section 363 IPC would be attracted if kidnapping is made either from outside India or from the lawful guardianship and Section 366 IPC would be attracted if a woman is abducted to compel her for marriage. In the present case, statement of Smt. Kavita Devi makes it clear that she was very afraid from the behaviour of her parents as her parents were torturing her and with the free consent and free-will, she had gone with petitioner Kamlesh Chauhan and got married and were living as husband and wife with their child. Therefore, the happily wedded couple should not be compelled to face the prosecution. In her statement dated 18.9.2010, Smt. Kavita Devi has stated that she is major aged about 18 years. No one has put in appearance on behalf of opposite party no.2 till date. 8. The Hon'ble Apex Court in a recent judgment dated 3.2.2021 in re; Vishwas Bhandari vs. State of Punjab & Anr., Criminal Appeal No.105 of 2021 (arising out of SLP (Criminal) No.6289 of 2020, has considered almost similar issue wherein the order of High Court of Punjab and Haryana was under challenge. The High Court of Punjab and Haryana had dismissed the similar petition filed under Section 482 Cr.P.C. The Hon'ble Apex Court while considering the factual and legal matrix of the issue was of the view that the High Court was not justified in dismissing the petition against the appellant. Relevant paragraphs no.7, 9, 10 & 11 of the aforesaid judgment are being reproduced herein below:- "7. It is thereafter, the appellant invoked the jurisdiction of the High Court for quashing of the FIR and subsequent proceedings, inter alia, on the ground that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. In fact, the prosecutrix married Vikram Roop Rai, the main accused and had two children with him. Such marriage was with the consent of their families. In fact, the prosecutrix married Vikram Roop Rai, the main accused and had two children with him. Such marriage was with the consent of their families. Since there is no shred of evidence against the appellant, therefore, continuation of proceedings against the appellant would amount to abuse of process of law. 9. We find that the evidence of the prosecutrix and the complainant before the Court shows that there is no allegation whatsoever against the appellant. The main allegation was against Vikram Roop Rai but the prosecutrix married him on 4.8.2013 and had given birth to two children out of that wedlock. In the absence of any allegation against the appellant, we find that the continuation of proceedings against him is nothing but an abuse of process of law. 10. Since there is no evidence against the appellant, the proceedings initiated against him on the basis of FIR would be untenable. The High Court was, thus, not justified in dismissing the petition against the appellant. 11. Hence, the present appeal is allowed. The order passed by the High Court is set aside and the entire proceedings consequent to FIR No. 31 of 2013 and charge sheet stand quashed." 9. Besides, as per proposition of law laid down in State of Haryana and others vs. Ch. Bhajan Lal and others, 1992 AIR 604, powers under Section 482 Cr.P.C. can be exercised in exceptional circumstances. 10. Considering the entirety of the facts and circumstances of the issue in question, I do not find any fruitful purpose to permit the proceedings of Criminal Case No.33 of 2011 and Sessions Trial No.257 of 2013 to continue any longer against the present petitioners. Therefore, invoking my inherent powers conferred under Section 482 Cr.P.C., I hereby quash the entire proceedings of Criminal Case No.33 of 2011, State Vs. Kamlesh, arising out of Case Crime No.808 of 2010, under Sections 363 and 366 IPC, Police Station Motipur, District Bahraich, pending in the court of Judicial Magistrate, Bahraich including charge sheet no.193 of 2010 dated 11.11.2010 as well as the entire proceedings of Sessions Trial No.257 of 2013, State Vs. Kamlesh, arising out of Case Crime No.808 of 2010, under Sections 363 and 366 IPC, Police Station Motipur, District Bahraich, pending in the court of Judicial Magistrate, Bahraich including charge sheet no.193 of 2010 dated 11.11.2010 as well as the entire proceedings of Sessions Trial No.257 of 2013, State Vs. Kamlesh and another, arising out of Case Crime No.1035 of 2010, under Sections 147, 148, 149, 452, 506, 363 & 366 IPC, Police Station Motipur, District Bahraich pending in the court of learned Sessions Judge, Bahraich including the impugned charge sheet no.5 of 2011 dated 11.11.2011 and the summoning order dated 2.9.2013. 11. Accordingly, both the petitions are allowed. 12. Before parting, I appreciate the useful assistance of Ms. Shama Parveen, Law Clerk/ Trainee and Sri Vaibhav Srivastava, Law Intern.