# Smt. Suman & Anr v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-22
- **Case number:** Misc. Bench No. 10562 of 2015
- **Bench:** Ajai Lamba, Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-suman-anr-v-state-of-u-p-ors-43459
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.-226-FIR
quashing-offence under Section 363 IPCconsidering statement recorded u/s 164
Cr.P.C.-had jointed the company of her
own will-and married with accusedcoercion, inadvertent or forceful act on
part of accused not established-keeping
in veiw of Bhajan Lal case as well as
Sahina Parveen-ingredients of Section
363 IPC-not satisfied-initiating criminal
proceeding would amount to abuse the
process
of
court-if
such
cases
are
brought under trail-will be burden upon
judicial system-FIR quashed.
Held: Para-11, 12 and 14

## Text

1 All. Smt. Suman & Anr. Vs. State of U.P. & Ors.
67
of natural justice, before there is a
cessation
of
the
financial
and
administrative powers of the President
does not stand excluded by the provisions
of Section 48(2). As a matter of textual
interpretation,
the
requirement
of
complying with the principles of natural
justice is an integral element of the
proviso
to
Section
48(2).
The
requirements of natural justice would
warrant the grant of an opportunity to the
elected head of a municipality to respond
to the notice issued by the State indicating
the basis for the formation of a reason to
believe that the charges do not appear to
be groundless and that the President is
prima facie guilty on any of the grounds
mentioned in sub-section (2) of Section
48. The period of notice can be suitably
molded to deal with the exigencies of the
situation.
46.
The reference to the Full Bench
shall accordingly stand answered. The writ
petition shall now be placed before the
regular Bench according to roster for
disposal in light of the questions so
answered.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2016
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ADITYA NATH MITTAL, J.
Misc. Bench No. 10562 of 2015
Smt. Suman & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Chandra Bhanu Singh
Counsel for the Respondents:
Govt. Advocate, B.B. Tripathi
Constitution
of
India,
Art.-226-FIR
quashing-offence under Section 363 IPCconsidering statement recorded u/s 164
Cr.P.C.-had jointed the company of her
own will-and married with accusedcoercion, inadvertent or forceful act on
part of accused not established-keeping
in veiw of Bhajan Lal case as well as
Sahina Parveen-ingredients of Section
363 IPC-not satisfied-initiating criminal
proceeding would amount to abuse the
process
of
court-if
such
cases
are
brought under trail-will be burden upon
judicial system-FIR quashed.
Held: Para-11, 12 and 14
11. In the considered opinion of the
court, case of the petitioner would be
covered by sub para 2 of para 108,
extracted above, from the judgement
rendered
in
Ch.
Bhajan
Lal's
case
(supra). The material that has come on
record to which reference has been
made
hereinabove
establishes
that
ingredients of Section 363 I.P.C. are not
satisfied.
Offence
has
not
been
committed.
12. Criminal proceedings have been
initiated
only
on
account
of
ego.
Petitioner no.1 got married against the
wishes of her parents, which apparently
has aggrieved them in initiating criminal
proceedings. In the considered opinion
of the court by initiating impugned
criminal proceedings, the process of the
court and the law has been abused. .
14. This court also takes judicial notice
of the fact that the prosecuting agency
and the courts are heavily burdened with
cases. Cases of this nature if are brought
to trial would burden the judicial system,
unnecessarily.
Case Law discussed:
W.P. No. 3519 (M/B) of 2015; AIR 1992 SC
604
(Delivered by Hon'ble Ajai Lamba, J.)
68
 INDIAN LAW REPORTS ALLAHABAD SERIES
1. This petition seeks issuance of a
writ in the nature of certiorari quashing
First Information Report lodged as Case
Crime No.239 of 2015, under Section 363
I.P.C., Police Station Naseerabad, District
Raebareli.
2. Counter affidavit filed on behalf
of
prosecuting
agency
sworn
on
5.12.2015, is available on record. Counsel
for respondent no.4 has not appeared to
address arguments.
3.
In judgment dated 23.7.2015,
rendered by a Division Bench of this Court,
of which one of us (Ajai Lamba,J) was a
Member, in Writ Petition No.3519(M/B) of
2015 Shaheen Parveen and another versus
State of U.P. and others, the following
(relevant portion) has been held :-
"6. Petitioner no.-2 is accused of
committing an offence under Sections
363/366 of the Indian Penal Code.
7. Section 363 of the Indian Penal
Code inheres that whoever kidnaps any
person from lawful guardianship shall be
punished in terms of sentence provided in
the provision.
8.

"Kidnapping
from
lawful
guardianship" has been defined under
Section 361 of the Indian Penal Code. The
provision when extracted reads as under:-
"Whoever takes or entices any minor
under *[sixteen] years of age if a male, or
under **[eighteen] years of age if a
female, or any person of unsound mind,
out of the keeping of the lawful guardian
of such minor or person of unsound mind,
without the consent of such guardian, is
said to kidnap such minor or person from
lawful guardianship.
Explanation: - The words "lawful
guardian" in this section include any
person lawfully entrusted with the care or
custody of such minor or other person.
Exception: - This section does not
extend to the act of any person who in
good faith believes himself to be the
father of an illegitimate child, or who in
good faith believes himself to be entitled
to the lawful custody of such child, unless
such act is committed for an immoral or
unlawful purpose."
9. Section 366 of the Indian Penal
Code inheres that 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, shall be punished with a
sentence, as provided in the provision.
10. At the time of considering
whether on
admitting the allegations
made in the F.I.R., offence has been
committed or not, the ingredients of the
offence are required to be considered, in
context of the evidence collected during
the course of investigation.
11. In the peculiar facts and
circumstances of this case, the Court has
minutely examined the facts that have
emerged on investigation of the case.
14. The Investigating Agency is
concluding that at the point in time when
the victim left in the company of the
accused, she was a few months less than
18 years, which is the relevant age
mentioned in Section 361 of the Indian
Penal Code, above extracted. Clearly, the
Investigating
Agency
is
taking
a
hypertechnical view of the issue. The
other relevant facts and circumstances of
the case are being ignored.
1 All. Smt. Suman & Anr. Vs. State of U.P. & Ors.
69
15. The issue whether the victim was
kidnapped or abducted is required to be
examined in context of the statement of
the prosecutrix recorded under Section
164 Cr.P.C.
16. If the statement of the prosecutrix,
above noted, is taken into account, it
becomes evident that ingredients of the
offence under Sections 363/366 of the Indian
Penal Code in regard to coercion, kidnapping
or abduction allegedly committed by
Sarfaraj, are not satisfied. The provisions of
Section 363 of the Indian Penal Code are
required to be considered in context of
provisions of Section 361 of the Indian Penal
Code. So as to satisfy the ingredients of
Section 361 of the Indian Penal Code, it has
to be established by the prosecuting agency
that the accused/sarfaraj took or enticed the
prosecutrix out of the keeping of the lawful
guardian of the prosecutrix, without the
consent of the guardian/respondent no. 4. In
the case in hand, it is the case of the
prosecutrix herself that she of her free will
went with Sarfaraj, lived with him, wants to
live with him and is expecting his child.
Element of coercion and enticement by
Sarfaraj is absent, although consent of the
guardian had not been taken.
17. The writ court, being a court of
equity, must take into consideration all
relevant factors brought before it to deliver
substantial justice. Equity justifies bending
the rules, where fair play is not violated, with
a view to promote substantial justice. A writ
court cannot contemplate any limitation on
its power to deliver substantial justice. It has
to be ensured that a consumer of justice gets
complete justice, instead of going into the
nicety of law. Under the circumstances, the
court cannot be a mere onlooker if injustice
is likely to be caused.
18.
Petitioner
No.1
the
victim/prosecutrix would be the best
witness, rather the only witness of
commission of offence under Sections
363/366 I.P.C. Surely, the victim will not
support the prosecution case, as has been
made evident by her in her statement,
recorded in the course of investigation
under Section 164 Cr.P.C., and therefore
the trial would result in acquittal. During
course of trial, considerable number of
man
hours
would
be
wasted
in
prosecution/ defending and judging the
case. No useful purpose would be served
and the entire exercise of trial would be in
futility because the victim has declared
that she was not victimised or kidnapped.
19. The facts that have emerged from
the record make it evident that the
impugned criminal proceedings have been
initiated
because
mother
of
the
Prosecutrix/victim ( respondent no.-4) has
not accepted the marriage of her daughter
with petitioner No.2.
20. In case, despite the evidence that
has come on record, as noted above,
proceedings are not quashed, petitioner
no.-2 would be required to face criminal
charges and undergo the agony of a trial.
21. We have also taken into account the
fact that in case the petitioner No.2 is
allowed to be prosecuted, the matrimonial
life of petitioner No.1/the alleged victim
would be disrupted. Her husband would be
incarcerated and there would be no one to
take care of her child, who is yet-to-be-born.
22. If a minor, of her own, abandons
the guardianship of her parents and joins a
boy without any role having been played
by the boy in her abandoning the
guardianship of her parents and without
her having been subjected to any kind of
pressure, inducement, etc and without any
offer or promise from the accused, no
offence punishable under Section 363
I.P.C. will be made out when the girl is
aged more than 17 years and is mature
enough to understand what she is doing.
70
 INDIAN LAW REPORTS ALLAHABAD SERIES
Of course, if the accused induces or allures
the girl and that influences the minor in
leaving her guardian's custody and the
keeping and going with the accused, then it
would be difficult for the Court to accept that
minor had voluntarily come to the accused.
In case the victim/ prosecutrix willingly, of
her own accord, accompanies the boy, the
law does not cast a duty on the boy of taking
her back to her father's house or even of
telling her not to accompany him.
23. A girl who has attained the age of
discretion and was on the verge of attaining
majority and is capable of knowing what was
good and what was bad for her, cannot be
said to be a victim of inducement,
particularly when the case of the victim/girl
herself is that it was on her initiative and on
account of her voluntary act that she had
gone with the boy and got married to him. In
such circumstances, desire of the girl/victim
is required to be seen. Ingredients of Section
361 I.P.C. are required to be considered
accordingly, and not in mechanical or
technical interpretation.
24. Ingredients of Section 361 I.P.C.
cannot be said to be satisfied in a case
where the minor having attained age of
discretion, alleged to have been taken by
the accused person, left her guardian's
protection knowingly (having capacity to
know the full import of what she was
doing) and voluntarily joins the accused
person. In such a case, it cannot be said
that the victim had been taken away from
the keeping of her lawful guardian.
25. So as to show an act of
criminality on the part of the accused,
some kind of inducement held out by the
accused person or an active participation
by him in the formation of the intention of
the minor to leave the house of the
guardian, is required to be shown.
Conclusion might be different in case
evidence is collected by the investigating
agency
to
establish
that
though
immediately prior to the minor leaving the
guardian's protection, no active part was
played by the accused, he had at some
earlier stage solicited or persuaded the
minor to do so. (The Court in above
regards takes a cue from the judgment
rendered by Hon'ble Supreme Court of
India reported in (1965)1 SCR 243 S.
Varadarajan versus State of Madras).
26. When the above noted situation is
considered in context of the facts and
circumstances of the present case, it would
become evident that the victim (petitioner
No.1) was a few months short of attaining
age of 18 years. The said petitioner had
attained age of discretion, however, not age
of majority. Petitioner No.1, the victim in her
statement recorded under Section 164 CrPC
has clearly demonstrated that it was she who
went of her free will and accord on
10.2.2014 with Mohd. Sarfaraj, without any
coercion, and stayed with him, and got
married to him willingly. It is a consensual
act on the part of petitioner No.1 all through.
Such clear stand of the victim makes it
evident that Mohd. Sarfaraj respondent No.2
cannot be attributed with coercing petitioner
No.1, inducing petitioner No.1 or kidnapping
or abducting her in commission of offence,
as alleged. Surely, a girl who has attained an
age more than 17 years and who is already
carrying pregnancy cannot be stated to have
not attained age of discretion. In such
circumstances, a technicality in law would
not be attracted. The Court has not been
shown any material which would indicate
coercion, inducement or forceful act on the
part of Sarfaraj (petitioner No.2) so as to
conclude that offence has been committed by
him.
27. The writ Court considering
totality of fact and circumstances, cannot
ignore or disregard the welfare of the
petitioners, particularly when the exercise
1 All. Smt. Suman & Anr. Vs. State of U.P. & Ors.
71
of trial is going to be in futility, as
observed hereinabove.
28.
In
view
of
the
facts
and
circumstances of the case noted above, the
Court is convinced that the impugned
proceedings have been initiated in abuse of
process of the Court and process of the law. A
personal grudge against marriage of choice of
the daughter is being settled by virtue of
initiating
impugned criminal proceedings,
which would not be permissible in law. Such
prosecution would abrogate constitutional right
vested in the petitioners to get married as per
their discretion, particularly when there is no
evidence to indicate that the marriage is void.
30. In view of above, petitioner No.2
cannot be said to have committed offence
either under Section 363 I.P.C. read with
Section 361 I.P.C. or under Section 366
I.P.C.
31. In the above noted facts and
circumstances, we are of the view that
ends of justice would be served if the
petition is allowed."
4. The facts and circumstances of
this case are that allegedly petitioner no.1
got married to petitioner no.2 of her own
free will. Respondent no.4, however has
not accepted the marriage. Under the
circumstances,
impugned
criminal
proceedings have been initiated.
5. The investigating officer of the case
has placed on record statement of the
prosecutrix/ victim of the offence, recorded
under Section 164 Cr.P.C., as Annexure
No.SCA-1. Perusal of the statement indicates
that father of petitioner no.1 wanted to get
her married to an aged person. Petitioner
no.1 refused the proposal. Petitioner no.1
was given beatings. Approximately, six
months before the statement was given,
petitioner no.1 left her house for railway
station. Petitioner no.2 Manoj Kumar was
approached telephonically and she went with
him to Delhi. On returning back to Lucknow,
the petitioners got married in Arya Samaj
Mandir and also through court. It has been
stated clearly that petitioner no.1 wanted to
live with Manoj Kumar and she got married
with Manoj Kumar of her free will.
6. Perusal of Annexure SCA-2,
appended with the counter affidavit of
investigating agency, indicates the age of
petitioner no.1 to be about 18 years.
7. Considering the medical age of
petitioner no.1 and her statement recorded
under Section 164 Cr.P.C., it has become
evident that case of the petitioners is
covered
by
judgement
rendered
in
Shaheen Parveen's case (supra), portion
whereof has been extracted above.
8. We have also taken into account the
fact
that
the
victim
of
offence
of
kidnapping/abduction would be petitioner
no.1. Petitioner no.1 has admitted that she
has not been kidnapped or abducted, rather
had gone of her own free will. In such
circumstances, continuance of proceedings
would be an exercise in futility. Conviction
cannot possibly be recorded in view of
statement of victim of offence as has been
demonstrated through her statement recorded
under Section 164 Cr.P.C.
9. We have considered the law laid
down in AIR 1992 SC 604 State of
Haryana and others versus Ch. Bhajan Lal
and others.
10. Hon'ble Supreme Court of India
while taking notice of various judgments
on the issue in Ch. Bhajan Lal's
case(supra), has summed up as follows in
paragraph 108. The said para when
extracted reads as under :
72
 INDIAN LAW REPORTS ALLAHABAD SERIES
"108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or
the inherent powers under Section 482 of
the Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised
either to prevent abuse of the process of
any court or otherwise to secure the ends
of justice, though it may not be possible
to lay down any precise, clearly defined
and sufficiently channelised and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases
wherein such powers should be exercised.
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.
2. Where the allegations in the First
Information Report and other materials, if
any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying
an 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.
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.
4. Where, the allegations in the F.I.R.
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.
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.
6. Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (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 concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.
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."
(emphasised by us)
11. In the considered opinion of the
court, case of the petitioner would be
covered by sub para 2 of para 108,
extracted above, from the judgement
rendered in Ch. Bhajan Lal's case (supra).
The material that has come on record to
which
reference
has
been
made
hereinabove establishes that ingredients of
Section 363 I.P.C. are not satisfied.
Offence has not been committed.
12. Criminal proceedings have been
initiated
only
on
account
of
ego.
Petitioner no.1 got married against the
wishes of her parents, which apparently
has aggrieved them in initiating criminal
proceedings. In the considered opinion of
the court by initiating impugned criminal
1 All. Vipin Verma Vs. The Collector District Lucknow & Ors.
73
proceedings, the process of the court and
the law has been abused. .
13. The court has been informed that
investigation had been concluded and no
further evidence is likely to come on
record to draw a different conclusion as
drawn above.
14. This court also takes judicial
notice of the fact that the prosecuting
agency and the courts are heavily
burdened with cases. Cases of this nature
if are brought to trial would burden the
judicial system, unnecessarily.
15. Considering the law, as laid
down in Ch. Bhajan Lal's case(supra) and
Shaheen Parveeen(supra), portion from
which has been extracted above, this
petition is allowed. Impugned First
Information Report, lodged as Case Crime
No.239 of 2015, under Section 363 I.P.C.,
Police
Station
Naseerabad,
District
Raebareli, is hereby quashed.
16.
Let a copy of this order be
conveyed to the Court concerned as also to
the Superintendent of Police, Raebareli
through Senior Registrar of the Court and
learned Additional Government Advocate.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.01.2016
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 11783 of 2015
Vipin Verma
 ...Petitioner
Versus
The Collector District Lucknow & Ors.
...Respondents
Counsel for the Petitioner:
Manish Mathur, Vaibhav Srivastava
Counsel for the Respondents:
C.S.C., Chandra Shekhar Pandey
Constitution of India, Art.-226-Recovery
from amount of compensation-accident
by private vehicle-playing by U.P. State
Transport Corporation by reliance upon
clause 10 of agreement-issuing citation
under Rule 236 and Section 282 of
U.P.Z.A. & L.R. Act-without being any
provision under agreement-recovery can
not be enforced through Collector as
arrears of land revenue.
Held: Para-9
We are not entering into the merits of
the claim and the counter claim relating
to the extent of liability which is now
sought
to
be
recovered
from
the
petitioner but the mode of recovery in
our opinion does not conform to Clause10 of the aforesaid agreement. The
recovery from the petitioner as arrears
of land revenue on a recovery certificate
issued by the UPSRTC without therebeing any provision under the agreement
was, therefore, not enforceable through
the Collector by the Tehsildar and as
such this mode of recovery cannot be
approved of.
Case Law discussed:
F.A.F.O. No. 199 of 2001; 2011 Volume 8 SCC
pg. 42.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1.
Heard learned counsel for the
petitioner and Sri Chandra Shekhar Pandey,
learned counsel for the respondent nos. 3 and
4 as well the learned Standing Counsel for
the respondent nos. 1 and 2 .
2. The impugned recovery is sought
to be made from the petitioner through a
citation dated 24.11.2015 issued by the