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IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, Virendra Kumar Srivastava, JJ.
Ashok Kumar - Appellants
Vs.
Ram Pal - Respondent
Contempt Appeal No. 6 of 2018
Decided On : 18-09-2019
Indian Penal Code - Sections 363; 366 - Contempt of Courts Act, 1971 - Section 19 - Punishment – Quash of order - Petitioners submits that victim is petitioner No. 1 - and accused is petitioner No. 2 are major and they have also solemnized their marriage and they are living happily as husband and wife; victim herself is the deponent of the affidavit filed in support of the writ petition; there is a joint affidavit of both the petitioners in support of the present writ petition; as per Voter ID Card the date of birth of victim petitioner No. 1 is 1.1.1999. Learned counsel for the petitioners has further placed reliance upon a judgment of the Apex Court rendered in Criminal Appeal No. 1142 of 2013 - Sachin Pawar v. State of U.P., decided el–
Finding of the court : Order was an order restraining arrest of the petitioners. Restrain was put against the State authorities. There was no restrain put on the petitioner to be with her own parents. There is nothing on record that the victim Anju was arrested and given to her parents. The learned Single Judge has inferred the above position on the ground that statement of the victim was recorded under Section 161 CrPC and thereafter she was produced by police force for recording of her statement under Section 164 CrPC. And that, thereafter, on the basis of non existent oral direction of Pocso Court, she was left in the custody of her father against her wishes. The aforesaid inferences are uncalled for inasmuch as there was no stay order against investigation therefore, once the victim was produced before the police, in absence of any stay against investigation of the case, keeping in mind that a first information report had already been registered and documents were produced to suggest that the victim was a minor, with date of birth recorded as 3.7.2002, recording of her statement, by itself, cannot be treated as an act which willfully flouted the interim order - Charge against the contemnor-appellant that by handing over the custody of the victim to her father, the contemnor-appellant had gone against the true spirit of the order dated 10.4.2018, in our view, has not been satisfactorily established for the following reasons - observations of the learned single judge that the contemnor-appellant has set up a false defence about oral directions of Pocso Court with regard to custody is beyond the scope of the charge framed against the contemnor-appellant, particularly, in the context of proceedings relating to civil contempt, and as such these observations are uncalled for and are hereby expunged –
Result :Appeal allowed
JUDGMENT :
Manoj Misra, J.
1. This is an appeal under Section 19 of the Contempt of Courts Act, 1971 against the order dated 1.11.2018 passed by learned single judge in Contempt Application (Civil) No. 3035 of 2018 by which the learned single judge held the appellant guilty of contempt of Court for defying the interim order dated 10.4.2018 passed in Crl. Misc. Writ Petition No. 8980 of 2018. The appellant has also challenged the consequential order of punishment dated 14.11.2018 by which a fine of Rs. 1,000/- and sentence of simple imprisonment of one month has been imposed upon him.
2. The facts giving rise to the instant appeal are as follows:
3. One Vijendra Singh lodged a first information report (for short FIR) on 26.12.2017 at P.S. Shikohabad, District Firozabad, which was registered as Case Crime No. 1206 of 2017, against Ram Pal; Anand; and Vikram Singh for offences punishable under Sections 363; 366 I.P.C. and Section 3/4 Pocso Act. In the FIR the aforesaid persons were suspected as to have enticed away informant's minor daughter Anju Kumari, aged about 16 years, as she had been missing since 22.12.2017. Challenging the FIR, Anju Kumari and the accused filed Crl. Misc. Writ Petition No. 8980 of 2018 in this Court by claiming that Anju and Ram Pal (the petitioner No. 2 in that petition) were adult and of their own free will they had married each other and therefore no offence has been committed. They relied on Voter ID Card to demonstrate that the date of birth of Anju was 1.1.1999. In that petition, on 10.4.2018, an interim order was passed, which is extracted below:
Heard learned counsel for the petitioner(s) and learned A.G. A. for the State.
Learned counsel for the petitioners submits that victim is petitioner No. 1 - and accused is petitioner No. 2 are major and they have also solemnized their marriage and they are living happily as husband and wife; victim herself is the deponent of the affidavit filed in support of the writ petition; there is a joint affidavit of both the petitioners in support of the present writ petition; as per Voter ID Card the date of birth of victim petitioner No. 1 is 1.1.1999. Learned counsel for the petitioners has further placed reliance upon a judgment of the Apex Court rendered in Criminal Appeal No. 1142 of 2013 - Sachin Pawar v. State of U.P., decided on 2.8.2013.
Learned A.G.A has accepted notice on behalf of respondents No. 1 to 3.
Issue notice to respondent No. 4. Steps to be taken within ten days.
Counter-affidavit to be filed within four weeks by the learned A.G.A. as well as respondent No. 4 and rejoinder-affidavit to be filed within three weeks thereafter.
List thereafter.
It is directed that until further orders of this Court, the petitioners shall not be arrested relating to case crime No. 1206/2017 under Section 363/366 IPC and Section 3/4 POSCO ACT, P.S. Shikohabad, District Firozabad."
4. Ram Pal, one of the accused, with whom Anju is stated to have got married, filed Civil Misc. Contempt Application No. 3035 of 2018 against Ashok Kumar, Sub-Inspector, Police Station Shikohabad, Firozabad (the appellant). In paragraph 10 of the affidavit filed in support of the contempt application, it was stated that contemnor-opposite party (the appellant herein) had arrested Anju Kumari (petitioner No. 1 of Crl. Misc. Writ Petition No. 8980 of 2018) on 20.5.2018 and has illegally detained her without any Court's order.
5. On the aforesaid contempt application, on 29.5.2018, the Court requested Sri K.R. Singh, Additional Chief Standing Counsel, to obtain instructions from the contemnor with regard to the averments made in paragraph 10 of the affidavit (supra).
6. It may be observed that on 30.5.2018, a supplementary-affidavit was also filed by Ram Pal in support of the contempt application which has been brought on record as Annexure 6 to the affidavit filed in support of the appeal. The relevant paragraph Nos. 2, 3, 4 and 5 of that affidavit of Ram Pal are extract
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