Allowed

Sudhir Kumar @ Toni and Another v. State of U.P. and 2 Others

Allahabad HC24 Aug 2021CRLP/7051/2021

Case brief

AI extract

What is this about?

High Court allowed a criminal miscellaneous writ petition seeking quashing of police proceedings. The Court held that since the accused and prosecutrix are majors who voluntarily married and live together, no offence is made out, and continuation of investigation would be an abuse of process.

What did the court decide?

The impugned police report/wanted dated 25.01.2021 and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed.

Sudhir Kumar @ Toni and Another Vs State of U.P. and 2… — Quashing and FIR | Allahabad HC (2021)

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Court No. - 47

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Case :- CRIMINAL MISC. WRIT PETITION No. - 7051 of 2021

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Petitioner :- Sudhir Kumar @ Toni And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Prabodh Dubey,Ashok Kumar Giri Counsel for Respondent :- G.A.

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Ram Krishna Gautam,J.

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Heard Shri Arvind Prabodh Dubey, learned counsel for the petitioners and learned A.G.A. for the State respondents.

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This petition has been filed by the petitioners with a prayer to quash the police report/wanted dated 25.01.2021 arising out of Case Crime no.74/2019 under Section 363, 366, 376, 504 IPC and 5/6 POCSO Act, P.S. Khajani, District Gorakhpur. Further it is prayed not to arrest the petitioners in aforesaid case.

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The prosecutrix-petitioner no.2 and petitioner no.1 are major and solemnized their marriage on 29.05.2019. Earlier the petitioner has approached this Court by preferring Criminal Misc. Writ Petition no.15888 of 2019 (Smt. Pooja and others vs. State of U.P. and others), which was disposed of by order dated 06.06.2019 with following observations:-

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"However, considering the submissions made by the learned counsel for the petitioners that the kidnapped girl may be directed to be produced before the court concerned to ensure fair investigation, it is directed that in case the allegedly kidnapped girl Smt. Pooja appears or is produced before the court of learned C.J.M., Gorakhpur within 20 days from today and moves an application for her medical examination and recording her statement under section 161 Cr.P.C. and 164 Cr.P.C, the learned Magistrate concerned shall fix a date for the same purpose. On that date, the first informant & Officer-in-charge of the police station concerned shall be summoned. Thereafter such girl shall be produced before C.M.O. concerned by the concerned police officer for her medical examination as early as possible, preferably not later than within further twenty days. Her statement under Section 161 Cr.P.C. shall also be recorded. Thereafter, she shall be produced before C.J.M concerned for recording her statement under section 164 Cr.P.C. on the application filed by the I.O./Officer-in-charge of the police station concerned. Till two months from today or till recording of her statement under Section 164 Cr.P.C., whichever is earlier, no coercive step like arrest shall be taken against the accused and in case of default and non compliance of the Court's direction by the petitioners, it shall be open to the police authority concerned to arrest the accused. In case in view of the radiological report and the other educational certificates or birth certificates if any, which the I.O. may collect during investigation regarding the proof of age, the girl is found to be major and if her statements are found favourable to the accused-petitioners, the accused shall not be arrested till submission of police report under Section 173(2) Cr.P.C., provided that the accused shall co-operate with the investigation. In case the alleged kidnapped girl is found to be minor or if she is found major but supports the prosecution version, it shall be open to the police authority to arrest the accused and proceed further in accordance with law.

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In case the petitioners approach the S.S.P. concerned to provide the security for the aforementioned purpose of complying with Court's direction, the same shall be provided to them.

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It is further directed that issue of custody of the alleged kidnapped girl may also be decided by the C.J.M. concerned in accordance with law.

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With the above direction this petition is finally disposed off."

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In response to the said order, the medical examination of petitioner no.2 namely Smt. Pooja took place, wherein, Chief Medical Officer concerned has opined that prosecutrix petitioner no.2 is aged about 25 years, the said medical report is appended as Annexure no.4 to the writ petition. The statement of petitioner no.2 under Section 164 Cr.P.C. as has been recorded by learned Magistrate, wherein, she has stated that she has voluntarily left her parental house and entered into matrimonial alliance with petitioner no.1 on her own freewill.

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Learned counsel for the petitioner vehemently submits that as petitioner no. 1 and petitioner no.2 are major and have voluntarily married with each other and got their marriage registered, as such in view of judgmeent of Hon'ble the Apex Court rendered in Criminal Appeal No. 1142 of 2013 (Sachin Pawar vs. State of U.P) decided on 02.08.2013), no offence is made out and the police report is liable to be set aside.

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Learned AGA does not dispute the factual and legal aspect of the matter.

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In the case of State of Karnataka vs. L. Muniswamy (1977) 2 SCC 699 , the Hon'ble Apex Court has observed that the High Court in its inherent powers is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Hon'ble Court has also held that further investigation or proceedings pursuant to the FIR is likely to cause unwarranted and unjustified harassment to the petitioner, the Court may accordingly accord reprieve to the accused.

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In celebrated case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 , the Hon'ble the Apex Court has considered in detail the scope and ambit of High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

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"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an

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investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 7.4 In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:

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"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code.

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(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under

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the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

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In Sachin Pawar (supra), the Hon'ble Court has held that once the appellants are major and they have voluntarily married and living together, then the compliant against the appellants cannot sustain. For ready reference, the order dated 02.08.2013 passed in aforesaid case is extracted as under:-

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"Leave granted.

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2. Heard Ms. Geeta Luthra, learned senior counsel in support of this appeal, Mr. Irshad Ahmad, learned counsel appearing for the State of U.P. and the learned counsel for the complainant.

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3. The complainant respondent No.3 is the brother of appellant No.2. He felt aggrieved by his sister marrying to appellant No.1. It is a marriage between two young persons belonging to two different religions, but it is a marriage to which they themselves agreed. They are both adults. A complaint was filed by respondent No.3 being Crime No.684/2012 at Meerut on 27th July, 2012, alleging that the appellant No.1 herein has kidnapped his sister (appellant No.2 herein).

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4. The appellants therefore jointly filed a writ petition bearing Criminal Misc. Writ Petition No.10905 of 2012 in the High Court of Allahabad to quash the said complaint. The High Court passed an order on 9.8.2012 which accepted that these two appellants are adults and they are married. It also directed stay of arrest and granted them protection. However, the High Court recorded two conditions which are in paragraphs 4 and 7 of the order on the Criminal Miscellaneous Writ Petition. The appellants are aggrieved by these two conditions and that is why they have filed this appeal by special leave.

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5. We have heard the learned counsel for the parties concerned. Both the husband and wife (appellant Nos.1 & 2 herein) are present in Court. On our query, they have informed us that they have married voluntarily and without any coercion. They are adults. Appellant No.2 is a graduate in Political Science. The husband - appellant No.1 has passed Engineering Examination and recently he has got a job earning Rs.7,000/- per month. This being so, counsel for the appellants assures us that appellant No.1 will take good care of the second appellant – his wife.

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6. In our view, therefore, there is no need for appellant No.1 to arrange to deposit Rs.2,50,000/- for his wife in a bank as provided in paragraph 7 of the impugned

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order. Similarly, there is no need for recording the statement of the second appellant under Section 161 Cr.P.C. before the Chief Judicial Magistrate as directed in paragraph 4 of the impugned order. We, therefore, allow this appeal and set aside the order passed by the High Court to the extent mentioned in these two paragraphs.

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7. The complaint filed by respondent No.3 against appellant No.1 also does not require to be retained any more. It is a complaint alleging the kidnapping of appellant No.2 by appellant No.1. From the facts of this case, it is clear that the second appellant had gone over to the first appellant on her own and they are married, and are now living together happily. Under the circumstances, the complaint filed by respondent No.3, bearing Crime No.684 of 2012 at Meerut, is hereby quashed. The consequences thereof will follow.

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8. Counsel for respondent No.3 states that the second appellant should come and meet respondent No.3 and his relatives. Counsel for the appellants states that both the appellants will happily meet respondent No.3 and his relatives on appropriate occasions. The appeal is allowed accordingly."

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In view of the above, no purpose would be served in permitting the investigation to continue in pursuance of impugned FIR and in permitting the police authorities to harass the couple under the garb of fair investigation. It would be nothing but a sheer abuse of the process of law.

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The writ petition accordingly succeeds and is allowed .

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The impugned police report/wanted dated 25.01.2021 arising out of Case Crime no.74/2019 under Section 363, 366, 376, 504 IPC and 5/6 POCSO Act, P.S. Khajani, District Gorakhpur and all subsequent proceedings taken against the petitioners in pursuance thereof are hereby quashed.

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There shall however be no order as to costs.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 24.8.2021 A. Pandey

Sudhir Kumar @ Toni and Another v. State of U.P. and 2 Others

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Sudhir Kumar @ Toni and Another v. State of U.P. and 2 Others

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