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

- **Citation:** (2024) 8 ILRA 1358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-23
- **Case number:** Criminal Misc. Writ Petition No. 12522 of 2024
- **Bench:** Vivek Kumar Birla, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ujala-anr-v-state-of-u-p-ors-52297
- **Pages:** 5

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 363 & 366 - Writ petition-
quashing of FIR - victim has not supported
prosecution version in her statement
under Section 164 Cr.P.C.-parties have
married each other-consented physical
relationship-victim
is
major
as
per
ossification
test
report-Fir
quashedpetition allowed. (paras 8 and 9)
HELD:
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, in as much as, both the petitioners
are major and petitioner no.1 had left her home
with petitioner no.2 willingly and is living with
him as a married woman. (para 8)

B. Filing of statement recorded under
Section 164 Cr.P.C.-while challenging FIRpractice deprecated-statement ought not
be
made
available-till
the
filing
of
chargesheet-Investigating
Officers
directed not to supply copy of statements
recorded u/s. 164 CrPC(now Section 183
BNSS) to any person during investigation.
(Paras 13, 14 and 15)
Held:
This Court has noticed that in a number of
cases, the statements recorded u/s 164 Cr.P.C.
are being filed by the accused/petitioners before
this Court while challenging FIR under Article
226 of the Constitution of India. This practice
has been strictly deprecated by the Hon'ble
Apex Court in the case of 'State of Karnataka Vs
8 All. Smt. Ujala & Anr. Vs. State of U.P. & Ors.
1359
Shivam (2014) 8 SCC 913 as well as in A. Vs
State of U.P. & anr.(2020) 10 SCC 505. Hon'ble
Apex Court in the above-mentioned cases
clearly observed that accused or any other
person has no right to receive copy of
statements recorded u/s 164 Cr.P.C. until
cognizance is taken by the concerned court /
Magistrate on chargesheet / police report filed
u/s. 173 Cr.P.C. It was also observed by the
Apex Court that immediately after recording
statement u/s 164 Cr.P.C., copy of the same be
given to Investigating Officer with specific
direction that contents of such statement should
not be disclosed to any person till chargesheet /
police report u/s 173 Cr.P.C. is filed. (Para 13)

It is further directed that the Investigating
Officers shall not supply copy of the statements
recorded u/s 164 Cr.P.C. (now section 183
BNSS) to any person during investigation. (Para
15)

Petition allowed. (E-14)

List of Cases cited:

## Text

1358 INDIAN LAW REPORTS ALLAHABAD SERIES
2023 are concerned, no case is made out for
quashing qua them. As noticed above, the
informant company and the companies of
accused (A-1 to A-4), in a joint venture,
have taken loan from DMI Finance and
raised the construction. There are serious
allegations of siphoning off of the funds by
the accused (A-1 to A-4) in their subsidiary
companies and extending threat to the
Directors of the informant company and
also forging some documents. Therefore, in
view of the Bhajan Lal's Case (Supra),
this Court finds that the F.I.R. qua accused
A-1 to A-4 cannot be quashed at this stage
as there are allegation which are disputed
by accused (A-1 to A-4) on basis of
defence documents which cannot be taken
in consideration at this stage.

64. Accordingly, Criminal Misc. Writ
Petition No. 2140 of 2023 is allowed. The
impugned order dated 17.12.2022 passed
by the Chief Judicial Magistrate, Gautam
Buddh Nagar directing to register the F.I.R.
against the officer bearers of DMI
Finance (A-5 to A-8) as well as the
impugned F.I.R. i.e. Case Crime No. 486
of 2022 at Police Station - Sector 113,
Commissionerate,
Gautam
Buddha
Nagar, Uttar Pradesh under Sections 406,
409, 420, 467, 468, 471, 504 and 506 of
IPC and all consequential proceedings
qua accused (A-5 to A-8) namely
Puninder
Bhatia,
Yuvraj
Chankakya
Singh, Vivek Gupta and Shivashish
Chatterjee are hereby quashed.

65. The Criminal Misc. Writ Petition
No. 5280 of 2023 stands dismissed.
----------
(2024) 8 ILRA 1358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2024

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 12522 of 2024

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

Counsel for the Petitioners:
Sri Arvind Kumar, Sri Vidya Sagar Rajbhar

Counsel for the Respondents:
G.A.

A. Criminal Law - Indian Penal Code, 1860
- Sections 363 & 366 - Writ petition-
quashing of FIR - victim has not supported
prosecution version in her statement
under Section 164 Cr.P.C.-parties have
married each other-consented physical
relationship-victim
is
major
as
per
ossification
test
report-Fir
quashedpetition allowed. (paras 8 and 9)
HELD:
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, in as much as, both the petitioners
are major and petitioner no.1 had left her home
with petitioner no.2 willingly and is living with
him as a married woman. (para 8)

B. Filing of statement recorded under
Section 164 Cr.P.C.-while challenging FIRpractice deprecated-statement ought not
be
made
available-till
the
filing
of
chargesheet-Investigating
Officers
directed not to supply copy of statements
recorded u/s. 164 CrPC(now Section 183
BNSS) to any person during investigation.
(Paras 13, 14 and 15)
Held:
This Court has noticed that in a number of
cases, the statements recorded u/s 164 Cr.P.C.
are being filed by the accused/petitioners before
this Court while challenging FIR under Article
226 of the Constitution of India. This practice
has been strictly deprecated by the Hon'ble
Apex Court in the case of 'State of Karnataka Vs
8 All. Smt. Ujala & Anr. Vs. State of U.P. & Ors.
1359
Shivam (2014) 8 SCC 913 as well as in A. Vs
State of U.P. & anr.(2020) 10 SCC 505. Hon'ble
Apex Court in the above-mentioned cases
clearly observed that accused or any other
person has no right to receive copy of
statements recorded u/s 164 Cr.P.C. until
cognizance is taken by the concerned court /
Magistrate on chargesheet / police report filed
u/s. 173 Cr.P.C. It was also observed by the
Apex Court that immediately after recording
statement u/s 164 Cr.P.C., copy of the same be
given to Investigating Officer with specific
direction that contents of such statement should
not be disclosed to any person till chargesheet /
police report u/s 173 Cr.P.C. is filed. (Para 13)

It is further directed that the Investigating
Officers shall not supply copy of the statements
recorded u/s 164 Cr.P.C. (now section 183
BNSS) to any person during investigation. (Para
15)

Petition allowed. (E-14)

List of Cases cited:

1. Criminal Misc. Writ Petition No. 17046 of 2022
(Smt. Juli Kumari & anr. Vs St. of U.P. & ors.)
decided on 05.12.2022

2. St. of Karn. Vs Shivam (2014) 8 SCC 913

3. A. Vs St. of U.P. & anr.(2020) 10 SCC 505

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Arun Kumar Singh Deshwal, J.)

1. Supplementary affidavit as well as
compliance affidavit filed today are taken
on record.

2. Heard Sri Vidya Sagar Rajbhar,
learned counsel for the petitioners and Sri
Ghanshyam Kumar, learned AGA-I for the
State respondents and perused the record.

3. The present writ petition has been
preferred with the prayer to quash the
impugned First Information Report dated
27.6.2024, registered as Case Crime No.
0211 of 2022, under Sections 363, 366 IPC,
P.S. Bardah, District Azamgarh and for a
direction to the respondents not to arrest the
petitioners in pursuance of impugned First
Information Report.

4. Pursuant to the orders of this Court
dated 24.7.2024 and 08.8.2024, learned
A.G.A. has filed compliance affidavit
annexing therewith copy of the statement
of
the
victim/petitioner
no.1
herein
recorded u/s 164 Cr.P.C. and the case diary
showing the ossification test report.

5. According to the statement of
victim/petitioner no.1 herein recorded u/s
164 Cr.P.C. the victim has not supported
the
prosecution
version
and
has
categorically stated that she left her home
willingly with Arvind, petitioner no.2
herein and they have married each other as
well and there was consented physical
relationship. As per the ossification test
report, the victim is aged above 18 years
and below 22 years.

6. Reliance has been placed by
learned counsel for the petitioners 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.

7.

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.
1360 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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.
8 All. Smt. Ujala & Anr. Vs. State of U.P. & Ors.
1361

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."

8. 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, in as much as, both the
petitioners are major and petitioner no.1 had
left her home with petitioner no.2 willingly
and is living with him as a married woman.

9. In view of the above, the writ petition
succeeds
and
is
allowed.
The
First
Information
Report
dated
27.6.2024,
registered as Case Crime No. 0211 of 2022,
under Sections 363, 366 IPC, P.S. Bardah,
District
Azamgarh
as
well
as
all
consequential
proceedings
are
hereby
quashed.

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

11. Since this order has been passed
in absence of respondent no. 4, she shall be
at liberty to file a recall application for
recalling of this order within six weeks, in
case any false case has been represented
before this Court.

12. This Court finds that in the
supplementary affidavit filed today, learned
counsel for the petitioners has annexed the
copy of the statement recorded u/s 164
Cr.P.C. as well as the copy of the
ossification test report.

13. This Court has noticed that in a
number of cases, the statements recorded
u/s 164 Cr.P.C. are being filed by the
accused/petitioners before this Court while
challenging FIR under Article 226 of the
Constitution of India. This practice has
been strictly deprecated by the Hon'ble
Apex Court in the case of 'State of
Karnataka vs. Shivam (2014) 8 SCC 913
as well as in A. vs. State of U.P. and
another (2020) 10 SCC 505. Hon'ble Apex
Court in the above mentioned cases clearly
observed that accused or any other person
has no right to receive copy of statements
recorded u/s 164 Cr.P.C. until cognizance
is taken by the concerned court / Magistrate
on chargesheet / police report filed u/s. 173
Cr.P.C. It was also observed by the Apex
Court that immediately after recording
statement u/s 164 Cr.P.C., copy of the same
be given to Investigating Officer with
specific direction that contents of such
statement should not be disclosed to any
person till chargesheet / police report u/s
173 Cr.P.C. is filed. Para 16 and 17 of 'A.
vs. State of U.P.' (supra) is quoted as under
:

"16. It was, thus, directed by this
Court that a copy of the statement of the
victim recorded under Section 164 CrPC
be handed over by the Judicial Magistrate
concerned to the investigating officer with
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
a specific direction that the contents of
such statement under Section 164 CrPC
should not be disclosed to any person till
charge-sheet/report under Section 173
CrPC was filed.

17. The scheme of the relevant
provisions of CrPC shows that after the
conclusion
of
the
investigation,
an
appropriate report under Section 173
CrPC is to be filed by the police giving
information as required by Section 173. In
terms of Section 190 CrPC, the Magistrate
concerned may take cognizance of any
offence inter alia upon a police report. At
the stage of exercise of power under
Section 190 CrPC, as laid down by this
Court in a number of decisions, the notable
being the decision in Bhagwant Singh v.
State, the Magistrate may deem fit that the
matter requires further investigation on
certain
aspects/issues
and
may
pass
appropriate direction. It is only after taking
of the cognizance and issuance of process
that the accused is entitled, in terms of
Sections 207 and 208 CrPC, to copies of
the documents referred to in the said
provisions."

14. Therefore, this Court also strictly
deprecates this practice of annexing the
statement of the victim recorded u/s 164
Cr.P.C. by the accused-petitioners and
further is of the view that concerned
Magistrates / courts should not issue
certified copies of the statement recorded
u/s 164 Cr.P.C. as deprecated by the
Hon'ble Apex Court to any person till
cognizance is taken on the charge-sheet /
police report. This Court also observes that
even lower courts are issuing certified
copies of the statements recorded u/s 164
Cr.P.C. (now section 183 BNSS) which is
legally not permissible.

15. We, therefore, direct the Registrar
General of this Court to bring this order in
the knowledge of Hon'ble the Chief Justice
so that if it is found appropriate, a circular
may be issued to the District Courts of the
State of U.P.

16. It is further directed that the
Investigating Officers shall not supply copy
of the statements recorded u/s 164 Cr.P.C.
(now section 183 BNSS) to any person
during investigation.

17. Copy of this order be sent to
Director General of Police, U.P. by the
Govt. Advocate who shall in turn circulate
the same to all the police stations of the
district for its compliance.
----------