Shana vs State of U.P.

Vipin Sinha, J.—Heard learned counsel for the parties.

The present 482 Cr.P.C. application has been filed to call for and peruse the entire records of investigation in Case Crime No. 257 of 2014, under Sections 363, 366, 506, 376, 120B IPC and 3/4 POSCO Act, P.S. Lisari Gate, Meerut and to quash/stay the entire proceedings related to impugned notice dated 30.6.2014 issued by respondent Investigating Officer/Police in respect of applicants.

After hearing the learned counsel for the parties and on perusal of the record the factual position of the case can be crystallized as under:

An FIR was lodged against the applicants under sections 363, 366, 506 IPC, copy of which has been annexed as annexure 4 to the affidavit accompanying the application. Smt. Gudia, who as per the FIR, is the victim girl had earlier filed a writ petition before this Court being writ petition no. 20665 of 2014, which was disposed of finally by another Bench of this Court vide order dated 9.4.2014 with the direction that liberty of the petitioners to live as husband and wife or their living in relationship, shall not be interfered with the by the respondents or anyone else, even they happen to be the parents of the petitioners. In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the concerned Senior Superintendent of Police or Superintendent of Police with a certified copy of this order, who shall provide immediate protection to the petitioners. However, this order in no way expresses opinion about the validity of their marriage and genuineness of their marriage certificate.

It may be clarified here itself that Gudiya and Saniya are one and the same person. Subsequently, it appears that FIR was lodged, which FIR was challenged by the applicants by filing a writ petition being writ petition no. 7474 of 2014, which was disposed off finally by a Division Bench of this Court on 25.4.2014 in the following terms:

However, considering the submission made by the learned counsel for the petitioners that the alleged kidnapped girl is major and she has performed the marriage with her free will and consent, it is directed that if the alleged kidnapped girl appears/is produced before the court of learned Magistrate concerned, within a month from today, he shall satisfy himself as to whether the girl is major or not and shall record her statements u/s 161 Cr.P.C. and 164 Cr.P.C. The Magistrate concerned shall fix a date for the same purpose. Till then, no coercive step shall be taken against the petitioners. In case of default, it shall be open to the police authority concerned to arrest the petitioners.

If the kidnapped girl is found major and she does not support the FIR version, the petitioner shall not be arrested till submission of the police report u/s 173(2) Cr.P.C., but the petitioners shall cooperate with the investigation. In case, the alleged kidnapped girl appears to be minor or if she is major but supports the prosecution version, it shall be open to the police authority to arrest the accused.

It is directed that issue of custody of the alleged kidnapped girl shall be decided by the learned Magistrate concerned in accordance with law.

It is further directed that in case the petitioners approach the S.S.P. concerned to provide them protection for the purposes of appearing before the Court concerned to record the statement of the kidnapped girl u/s 164 Cr.P.C. and for medical examination, the same shall be provided.

With the above direction this writ petition is finally disposed of.

In pursuance of the order dated 25.4.2014, the statement of the girl u/s 164 Cr.P.C. was recorded in which the girl has given a statement in favour of the applicants. The relevant extracts is to the effect that MAI APNI MARZI SE GAYI THI. MAI APNI MARZI SE NIKAH/COURT MARRIAGE KIYA HAI.

The attention of this Court has also been drawn to the statement of the girl Gudiya@ Saniya recorded u/s 161 Cr.P.C. in which she again has given a statement in favour of the husband Rizwan and the applicants.

In pursuance of the order passed in writ petition no. 7474 of 2014 on 25.4.2014, the medical examination of the girl was also conducted and the Chief Medical Officer, Meerut has certified that the age of the girl is 18 plus years.

However, all the aforesaid facts were overlooked and it appears that Investigating Officer under some misconceived notions moved an application before the court below and got an order for issuance of notice dated 30.6.2014 for imposing allegation u/s 3/4 of POSCO Act, 2012.

However, it appears that in the meantime the Magistrate by overlooking the doctor''s report and the earlier order of this Court had handed over the custody of the girl in favour of her father, copy of the order dated 27.5.2014 has been annexed as annexure 9 to the affidavit. Aggrieved against which, the husband Rizwan has preferred a criminal revision no. 1736 of 2014 before this Court, which is still pending.

Now, it appears that proceedings u/s 82 Cr.P.C. have been initiated against the applicants. Counsel for the applicants submits that the said proceedings are abuse of process of the Court as in spite of protection provided by this Court earlier and also the order passed by this Court in writ petition and the factual background, the said proceedings have been initiated overlooking the litigations already indulged into by the applicant and the factual matrix of the case.

Learned counsel for opposite party no. 3 has strongly opposed the present application and has cited two cases; one of this Court passed in Criminal Misc. 482 Cr.P.C. Application No. 25086 of 2012 (Prema Nand Rastogi Vs. State of U.P. & others) decided on 28.9.2012 and one of Delhi High Court passed in Crl. Misc. Case No. 2977 of 2008 (Mrigendra Jalan Vs. State and another) delivered on 19.9.2008 and has vehemently contended that the present application is not maintainable because the chargesheet has not yet been filed and it is only against the notice. He further contended that the applicants are not cooperating with the investigation. He also contended that there is no abuse of process of Court.

However, looking to the facts and circumstances of the case and the previous litigations between the parties and also the statement of the victim girl herself and in order to secure the ends of justice, this Court in exercise of its inherent power u/s 482 Cr.P.C. can interfere and pass suitable orders to do substantial justice between the parties and to end the undue harassment that is being caused to the applicants.

Thus, in view of the aforesaid facts and circumstances of the case, this Court deems it fit to direct herein as under:

(i) Three weeks'' time is granted to the learned counsel for the respondents to file counter affidavit. Two weeks'' thereafter to learned counsel for the applicants to file rejoinder affidavit.

(ii) List thereafter.

(iii) Until further order of this Court, no coercive action shall be taken or initiated against the applicants (inclusive proceedings u/s 82/83 Cr.P.C.).

(iv) The police authorities shall complete their investigation and file report u/s 173(2) Cr.P.C. expeditiously.