# Kamlesh Chauhan v. The State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** U/S 482/378/407 No. 5095 of 2013
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-chauhan-v-the-state-of-u-p-anr-46499
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 363 & 366 - Prosecutrix have married
the Petitioner and they have a minor child -she
admit that she is living with the Petitioner out
of her free will and her parents were torturing
her-prima facie no offence u/s 363 and 366 IPC
is made out-proceedings of the case quashed.
Petition allowed.

List of Cases cited:

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES

12. I am of the considered opinion that the
mandatory condition of Section 207 Cr.P.C. may
not be ignored and if such application is filed by
or on behalf of accused person, it should have
been considered and decided by speaking and
reasoned order and if such application has been
rejected by the learned court below, the specific
reason to that effect should have been given. The
learned court below should have specifically
stated that such documents have already been
provided to the accused persons or the
documents are so voluminous and opportunity of
inspection has already been provided. But in the
impugned order dated 06.10.2021, the learned
court below has not even whispered to the effect
as to whether the demanded document (C.D.)
has already been provided to the petitioner or he
was provided any appropriate opportunity to
inspect such C.D. if it is voluminous but instead
of dealing such aspects he has dealt with the
aspect of Section 65-B (4) of Indian Evidence
Act, which was not relevant at that point of time.
Therefore, it appears that the impugned order
dated 06.10.2021 (Annexure No.1) passed by the
learned court below i.e. Additional Sessions
Judge-III, District-Lakhimpur Kheri has been
passed without application of mind and without
considering the relevant facts and circumstances
viz-a-viz the legal provisions of Section 207
Cr.P.C. in proper perspective.

13. Accordingly, I do not find any good
reason to keep this petition pending any longer.
So I hereby set-aside the impugned order dated
06.10.2021 (Annexure No.1) passed by the
learned court below i.e. Additional Sessions
Judge-III, District-Lakhimpur Kheri in Sessions
Trial No.181 of 2020, Crime No.853 of 2020,
under Section 302 I.P.C., Police StationKotwali
Sadar,
District-Lakhimpur
Kher.
However, liberty is given to the learned court
below to pass appropriate order on the
application of the petitioner dated 16.03.2021
(Annexure No.2) strictly in accordance with
law, within a period of fifteen days after receipt
of a certified copy of this order. The petitioners
are given liberty to produce the certified copy
of this order along with fresh application
enclosing therewith their earlier application,
which has been annexed as Annexure No.2 to
this petition, within a period of seven working
days.

14. Hence, the instant petition is allowed.

15. No order as to costs.
----------
(2021)11ILR A262
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 No. 5095 of 2013
connected with
U/S 482/378/407 No. 5094 of 2013

Kamlesh Chauhan ...Applicant
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anuradha Singh

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 363 & 366 - Prosecutrix have married
the Petitioner and they have a minor child -she
admit that she is living with the Petitioner out
of her free will and her parents were torturing
her-prima facie no offence u/s 363 and 366 IPC
is made out-proceedings of the case quashed.
Petition allowed.

List of Cases cited:

1. Vishwas Bhandari Vs St. of Pun. & anr., Criminal
Appeal No.105 of 2021 (arising out of SLP (Criminal)
No.6289 of 2020
11 All. Kamlesh Chauhan Vs. The State of U.P. & Anr.
263
2. St. of Har. & ors. Vs Ch. Bhajan Lal & ors., 1992
AIR 604

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

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. 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
264 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 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 All. District Basic Education Officer & Anr. Vs. Shivkali & Ors.
265

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.
----------
(2021)11ILR A265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 651 of 2021

District Basic Education Officer & Anr.
 ...Appellants
Versus
Shivkali & Ors. ...Respondents

Counsel for the Appellants:
Sri Awadhesh Kumar

Counsel for the Respondents:
Sri Kamal Kumar Kesherwani

A. Service Law - Government Order Clause 5seeking for release the amount of death-cum
retirement gratuity-respondent's husband died
in harness, she was denied the death-cum
retirement gratuity-respondent's husband did
not exercise the option to retire the age of 58
years-the age of superannuation was enhanced
from 60 to 62 years-but he could not opted as
he died before completing 60 years, and he
had to opt on first day of July 2010, which
never came in the life time of the first
respondent's husband because of his death a
day before, he could not exercise the option,
the claim for death gratuity could not be
denied-Learned Single Judge rightly passed the
order.(Para 1 to 15)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Smt. Ranjana Kakkar Vs St. of U.P. & ors. (2008)
10 ADJ 63

2. Noor Jahan Vs St. of U.P. & 4 ors. Writ-A
No.40568 of 2016

3. Usha Vs St. of U.P. & ors. Writ-A No. 17399 of
2019
4. Savitri Vs St. of U.P. & ors. Writ-A No. 11474 of
2020

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Jayant Banerji, J.)

1. This intra-court appeal arises from a
judgment and order of a Single Judge dated
02.02.2021 in Writ-A No.11578 of 2020
whereby, the writ petition of the first respondent
was allowed with a direction upon the District
Basic Education Officer, Basti (first appellant)
and the Finance and Account Officer (Basic
Education), Basti (second appellant) to compute
the amount payable to the petitioner towards
gratuity in terms of the scheme formulated by
the Government Order dated September 16,
2009 and release the same along with interest at
the rate of 8% per annum from the date of filing
the application for gratuity till the amount is
actually disbursed.

2. In brief, the facts giving rise to the
appeal are as follows:-

2 (i). The husband of the first
respondent was appointed as Assistant Teacher
on 11.03.1974 in a basic school under the Basic
Shiksha Parishad, Uttar Pradesh. Later, he was
promoted on the post of Headmaster. Initially,
the age of superannuation was 58 years which
was enhanced to 60 years and, later, to 62 years.
Before
enhancement
of
the
age
of
superannuation to 62 years, by Government
Order
No.6369/15-5-93-55/89,
dated
23.11.1994,
the
benefit
of
gratuity
was
introduced to teaching and non teaching staff of