Disposed

Suhana and Another v. State of U.P. and 2 Others

Allahabad HC25 Apr 2019CRLP/6645/2019

Case brief

AI extract

What is this about?

The High Court disposed of a C.M. Writ Petition seeking quashing of an FIR under Sections 363 and 366 IPC involving a minor. Instead of quashing, the Court directed the appellant/victim to be produced before the Judicial Magistrate to ascertain voluntariness. Investigation was not stayed if production failed.

What did the court decide?

Permanently stayed arrest of petitioners pending production of victim before C.J.M. for recording statement as per para 18.

Suhana and Another Vs State of U.P. and 2… — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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Court No. - 33

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Case :- CRIMINAL MISC. WRIT PETITION No. - 6645 of 2019 Petitioner :- Suhana And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Atul Kumar Counsel for Respondent :- G.A.

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Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J.

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Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1 and 2; and perused the record.

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The instant petition seeks quashing of the first information report dated 06.03.2019 registered as Case Crime No.251 of 2019, under Sections 363, 366 IPC, P.S. Kotwali Nagar, District Muzaffar Nagar.

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After considering the submissions of the learned counsel for the petitioners, on 12.03.2019, following order was passed:-

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"The contention of the learned counsel for the petitioners is that, admittedly, the victim (Smt. Suhana) is an adult as according to high school certificate her date of birth is 17.10.2000. It has been submitted that the victim (Smt. Suhana) has voluntarily entered into relationship with the petitioner no.2 and no force has been used upon her and therefore no offence has been committed.

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Sri Atul Kumar, learned counsel for the petitioners, has produced the petitioner no.1-victim (Smt. Suhana) before us. She has affirmed the aforesaid contentions.

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The matter requires consideration.

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Learned A.G.A. has accepted notice on behalf the respondents 1 and 2.

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Let notice be issued to the respondent no.3, fixing 25th April, 2019.

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List on 25th April, 2019. By the next date, the respondents shall file their respective counter affidavits.

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On the next, the petitioner no.1 and respondent no.3 shall both be present before the Court in person.

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Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., whichever is earlier, the petitioners shall not be arrested in Case Crime No.0251 of 2019, under Sections 363 and 366 I.P.C., P.S. Kotwali Nagar, District Muzaffar Nagar, subject to petitioners' cooperation in the investigation. It is made clear that investigation of the case has not been stayed."

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Pursuant to the above order, office has submitted a report that notice was issued to the respondent no.3, fixing 25.04.2019 but neither undelivered cover nor acknowledgement of the notice

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sent has been received back.

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Considering the nature of the order that we propose to pass, we do not consider it necessary to await response of the respondents. This petition is, therefore, disposed off by providing as follows:-

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The petitioner no.2 shall produce the petitioner no.1 (Suhana) before the court of Chief Judicial Magistrate, Muzaffar Nagar by or before 10th May, 2019. Upon her production, the Chief Judicial Magistrate, Muzaffar Nagar shall proceed to record the statement of Suhana to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.2 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of recording statement of the victim under Section 164 Cr.P.C.

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On the basis of the statement of the victim, the police shall submit report under Section 173(2) Cr.P.C.

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The aforesaid exercise shall be completed preferably within a period of three weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 10th May, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim.

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It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigating agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.

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With the aforesaid observations/directions, the petition is disposed off .

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Order Date :- 25.4.2019 AKShukla/-

Suhana and Another v. State of U.P. and 2 Others

Case brief

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Suhana and Another v. State of U.P. and 2 Others

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