# Smt. Malti Devi & Anr v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-17
- **Case number:** Criminal Misc. Writ Petition No. 7644 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-malti-devi-anr-v-state-of-u-p-ors-50528
- **Pages:** 5

## Headnote

Law-Constitution
of
India,1950-Article 226 - Indian Penal
Code, 1860-Section 366-Quashing of FIR-
the petitioners no. 1 & 2 are major and
they have married on their sweet willmere finding that a woman was abducted
is not enough, it must further be proved
that the accused abducted the woman
with
the
intent
that
she
may
be
compelled, or knowing it to be likely that
she will be compelled to marry any person
or in order that she may be forced or
seduced to illicit intercourse or knowing it
to be likely that she will be forced or
seduced to illicit intercourse-Unless the
prosecution proves that the abduction is
for the purposes mentioned in Section 366
IPC, the Court cannot hold the accused
guilty and punish him under Section 366
IPC. (Para 1 to 10)

The writ petition is allowed. (E-6)
List of Cases cited:

## Text

1264 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In view of the above, the writ
petition succeeds and is allowed. The First
Information
Report
dated
06.04.2023
registered as Case Crime No. 216 of 2023,
under Section 366, 120-B I.P.C., P.S.-
Jeanpur, District- Azamgarh, as well as all
consequential
proceedings
are
hereby
quashed.
----------
(2023) 8 ILRA 1264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 7644 of 2023

Smt. Malti Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Udayveer Singh

Counsel for the Respondents:
G.A., Sri Anil Kumar

A.
Criminal
Law-Constitution
of
India,1950-Article 226 - Indian Penal
Code, 1860-Section 366-Quashing of FIR-
the petitioners no. 1 & 2 are major and
they have married on their sweet willmere finding that a woman was abducted
is not enough, it must further be proved
that the accused abducted the woman
with
the
intent
that
she
may
be
compelled, or knowing it to be likely that
she will be compelled to marry any person
or in order that she may be forced or
seduced to illicit intercourse or knowing it
to be likely that she will be forced or
seduced to illicit intercourse-Unless the
prosecution proves that the abduction is
for the purposes mentioned in Section 366
IPC, the Court cannot hold the accused
guilty and punish him under Section 366
IPC. (Para 1 to 10)

The writ petition is allowed. (E-6)
List of Cases cited:

1. Smt. Juli Kumari & anr. Vs St. of UP & ors.
CMWP No. 17046 of 2022

2. Kavita Chandrakant Lakhani Vs St. of Mah. &
(2018) AIR SC 2099

3. Gabbu Vs St. of M.P. (2006) AIR SC 2461

4. Shahjahan Vs St. (2011) Cr.L.J. 573

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Udayveer Singh, learned
counsel for the petitioners, Sri Anil Kumar,
learned counsel for the informant and Sri
Rajesh Kumar Sacchan, learned State Law
Officer appearing for the State-respondents.

2. The present writ petition has been
preferred with the prayer to quash the
impugned First Information Report dated
04.05.2023 registered as Case Crime No.
214 of 2023, under Section 366 I.P.C.,
P.S.- Rath, District- Hamirpur, and for a
direction to the respondents not to arrest the
petitioners in pursuance of impugned First
Information Report.

3. Submission of learned counsel for
the petitioners is that as per Junior High
School Marksheet, the date of birth of
petitioner no. 1, Smt. Malti Devi is
10.07.2001 and as per the Aadhar card and
PAN Card, the date of birth of petitioner
no. 2, Rajkumar is 01.01.1992 and as such,
the petitioners no. 1 and 2 are major and
they have married on their sweet will,
therefore, no offence has been committed.
By drawing attention to Annexure-4 to the
petition, it is submitted that online
8 All. Smt. Malti Devi & Anr. Vs. State of U.P. & Ors.
1265
application for registration of marriage has
also been submitted. The present petition is
also supported by a joint affidavit of the
petitioners nos. 1 and 2. Reliance has been
placed on a judgement and order dated
5.12.2022 passed by this Court in Criminal
Misc. Writ Petition No. 17046 of 2022
(Smt. Juli Kumari and another vs. State
of UP and 2 others) to submit that under
identical circumstances the petition was
allowed and FIR therein was quashed.

4.

The
aforesaid
order
dated
5.12.2022 passed in Criminal Misc. Writ
Petition No. 17046 of 2022 (Smt. Juli
Kumari and another vs. State of UP and
2 others) is quoted as under :

"Heard learned counsel for the
petitioners and learned AGA.

Present writ petition has been
preferred for quashing the FIR dated
25.10.2022 being Case Crime No.0475 of
2022 under Section 366 IPC, P.S.
Saurikh, Distt. Kannauj and for a
direction to respondents not to arrest the
petitioners pursuant to aforesaid FIR.

Placing reliance on the Aadhar
Card of the victim girl showing her date of
birth as 1.1.2004, it is submitted by the
learned counsel for the petitioners that the
petitioner no.1 is a major girl aged about
more than 18 years on the date of
incident.

The present petition has been
filed with the declaration, jointly by both
the petitioners no.1 & 2 that the petitioner
no.1 had left her paternal home out of her
own sweet will and being a major girl, she
is free to take her choice to perform
marriage with the petitioner no.2.

The present petition, however,
has been filed on the assertion that no
offence under Section 366 IPC is made
out as the petitioner no.1 is a major girl.
The entire criminal case lodged by the
respondent no.3 is nothing but an abuse
of the process of the law.

Learned
counsel
for
the
petitioners has further contended that in
view
of
the
aforesaid
facts
and
circumstances, the impugned FIR is liable
to be quashed in view of the Supreme
Court's judgment in Kavita Chandrakant
Lakhani vs. State of Maharashtra & Anr
reported in AIR 2018 SC 2099, wherein it
was held that to constitute an offence
under Section 366 IPC, it is necessary for
the prosecution to prove that the accused
induced the complainant woman or
compelled by force to go from any place,
that such inducement was by deceitful
means, that such abduction took place
with the intent that the complainant may
be seduced to illicit intercourse and/or
that the accused knew it to be likely that
the complainant may be seduced to illicit
intercourse as a result of her abduction.
Mere abduction does not bring an accused
under the ambit of this penal section. So
far as charge under Section 366 IPC is
concerned, mere finding that a woman
was abducted is not enough, it must
further be proved that the accused
abducted the woman with the intent that
she may be compelled, or knowing it to be
likely that she will be compelled to marry
any person or in order that she may be
forced or seduced to illicit intercourse or
knowing it to be likely that she will be
forced or seduced to illicit intercourse.
Unless the prosecution proves that the
abduction is for the purposes mentioned
in Section 366 IPC, the Court cannot hold
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused guilty and punish him under
Section 366 IPC.

As regards the age of the victim
girl, as indicated in the Aadhar Card
appended as Annexure No.2 to the writ
petition, no dispute has been raised by
learned AGA. It is, thus, clear that both
the petitioners are major. The fact that the
present writ petition has been filed with
the declaration by the victim girl and that
she is living voluntarily in the company of
the petitioner no.2, is supported with the
signature of the victim girl on the
Vakalatnama. Once the age of the victim
girl is not in dispute, the petitioners no.1
& 2 cannot be made accused for
committing offence under Section 366
IPC as victim had left her home in order
to live with the petitioner no.2.

We make it clear that the
question in the present petition is not
about the validity of marriage of two
individuals i.e. petitioners no.1 & 2.
Rather, the issue is about the life and
liberty of two individuals in choosing a
partner or their right to freedom of choice
as to with whom they would like to live.

In view of the above discussion,
we are of the considered view that from
the first information report no offence
under Section 366 IPC is made out,
inasmuch as, both the petitioners are
major and the petitioner no.1 has come up
with the categorical stand that she had left
her home with the petitioner no.2 willingly
and is living with him as a married
woman.

In view of the above, the writ
petition succeeds and is allowed. The FIR
dated 25.10.2022 being Case Crime No.0475
of 2022 under Section 366 IPC, P.S.
Saurikh, Distt. Kannauj as well as all
consequential
proceedings
are
hereby
quashed.

We, however, clarify that while
deciding the present petition, we have not
looked into the validity of marriage of the
petitioners."

5. Per contra, learned counsel for the
informant and learned State Law Officer
sought to oppose the prayer. They have stated
that petitioner no. 1, Smt. Malti Devi was
earlier
married
to
Mangal
Singh
on
17.02.2023. The first information report
relating to this writ petition is registered only
u/s 366 I.P.C. The Court has to consider
whether the offence u/s 366 I.P.C. has been
committed against accused/petitioner no. 2,
Rajkumar. No complaint case regarding
bigamy has been registered against petitioner
no. 2.

6. For an offence of bigamy is
punishable u/s 494 I.P.C. or Section 495
I.P.C. As per the provisions given in Section
198(1)(c) Cr.P.C., offence is non-cognizable
and only a complaint case can be filed by the
aggrieved person i.e. husband or wife or in
case of wife by her father, mother, brother,
sister, son or daughter or by her father's or
mother's, brother or sister or with the leave of
the court by any other person related to her
by blood, marriage or adoption.

7. No averments has been made on
behalf of learned counsel for the informant
or the State Law Officer that any of the
relatives of petitioner no.1, Smt. Malti Devi
has filed complaint case regarding alleged
bigamy by petitioner no. 2, Rajkumar in
any court.

8. To ascertain whether prima facie,
offence u/s 366 I.P.C. is made out, it is
8 All. Smt. Malti Devi & Anr. Vs. State of U.P. & Ors.
1267
necessary to peruse Sections 362 and 366
I.P.C. which are quoted hereunder :-

362. Abduction.-Whoever by
force compels, or by any deceitful means
induces, any person to go from any place,
is said to abduct that person.

Ingredients
:-
This
section
requires two things :-

(1)
forceful
compulsion
or
inducement by deceitful means;

(2) the object of such compulsion
or inducement must be the going of a
person from any place.

The expression "deceitful means"
includes a misleading statement. It is,
really speaking, a matter of intention. The
intention of the accused is the basis and
gravamen of the charge. If the consent of
the person is freely and voluntarily given,
there will be no abduction. Unlike
kidnapping, abduction as defined u/s 362
I.P.C. is not an substantive offence under
the Code but abduction is an auxilliary act
and is made criminal and punishable only
when it is done with one or other intention
specified in Section 366 I.P.C.

366. Kidnapping, abducting or
inducing woman to compel her marriage,
etc.-Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid.

Ingredients
:-
This
section
requires :-

(1) kidnapping or abducting of a
woman;

(2) such kidnapping or abduction
must be -

(i) with intent that she may be
compelled or knowing it to be likely that
she will be compelled to marry any person
against her will; or

(ii) in order that she may be
forced or seduced to illicit intercourse or
knowing it to be likely that she will be
forced or seduced to illicit intercourse; or

(iii)
by
means
or
criminal
intimidation or otherwise by inducing any
woman to go from any place with intent
that she may be, or knowing that she will
be forced or seduced to illicit intercourse.

Section 366 I.P.C. only applies
when the woman abducted has no intention
of marriage or lawful intercourse when
abducted. Mere abduction does not bring
the accused under the ambit of this penal
section.

In Gabbu Vs. State of M.P.,
AIR 2006 SC 2461, the Apex Court has
held that so far as the charge u/s 366 I.P.C.
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
is concerned, mere finding that a woman
was abducted is not enough. It must further
be proved that the abduction is for the
purposes mentioned in Section 366 I.P.C.

In Shahjahan Vs. State, 2011
Cr.L.J. 573, the Apex Court has held :-

"In order to establish an offence
u/s 366 I.P.C., it must first be established
that the offence of kidnapping under
Section 361 I.P.C. or abduction under
Section 362 I.P.C. has been proved. It must
then be shown that such kidnapping or
abduction was with the contumacious intent
referred to under Section 366 I.P.C."

9. The essential condition for the
application of Section 366 I.P.C. is that
there is kidnapping or abduction of a
woman with the intention to compel her or
knowing it to be likely that she will be
compelled to marry any person against her
will or will be forced or seduced to illicit
intercourse.

10. In such view of the matter, we
find that the essential ingredients of Section
362 I.P.C. or even Section 366 I.P.C. are
not fulfilled against the petitioner no. 2,
Rajkumar.

11.

Under
these
facts
and
circumstances of the case, we are inclined
to allow the writ petition.

12. Accordingly, the writ petition
stands allowed. The First Information
Report dated 04.05.2023 registered as Case
Crime No. 214 of 2023, under Section 366
I.P.C., P.S.- Rath, District- Hamirpur, as
well as all consequential proceedings are
hereby quashed.

13. We, however, clarify that while
deciding the present petition, we have not
looked into the validity of marriage of the
petitioners.
----------
(2023) 8 ILRA 1268
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Contempt Application (Civil) 695 of 2013

Mahesh Chandra Shukla ...Appellant
Versus
Achal
Mishra
Basic
Shiksha
Adhikari
Lakhimpur Kheri & Anr. ...Respondents

Counsel for the Appellant:
Sri Nirmal Singh, Sri Pawan Kumar Pandey, Sri
Sharad Pathak, Sri Tej Pal Singh

Counsel for the Respondents:
Sri Jyotinjai Verma, Sri Ram Kumar Singh, Sri
Sandip Kr Yadav

Criminal Law - Indian Penal Code, 1860 -
Section 506 - Constitution of India,1950 -
Article 215 - Contempt of Court - Violation
of
Court
Order
-
Fraud
on
Court-
Quashing of Proceedings - Applicant sought
declaration of actions taken post 10.05.2013 as
void for violating High Court's order, alleging
fraud by Krishna Kumar Pandey, a Finance and
Accounts
Officer,
to
suppress
financial
irregularities and harass government officials -
FIR lodged with ulterior motive, omitting court's
order and Senior Registrar's letter from case
diary - Investigation conducted by officer below
prescribed rank, and report not submitted to
High Court as directed - Chargesheet under
Section
506
IPC
filed
with
manipulated
investigation - Court found Public Prosecutor's
independent assessment confirmed no offence
by Special Counsel - Held: High Court, as a
court of record under Article 215, has inherent
power to undo judgments obtained by fraud -
All actions post 10.05.2013 declared void -
Proceedings under Section 506 IPC quashed -
Notice issued to police officers for non-