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Rajasthan High Court - Jaipur

Salman Khan vs State Of Rajasthan And Anr on 3 August, 2016

                                                                     S.B. CRLMP No. 2711/2016

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   IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
                                   BENCH JAIPUR


                                      ORDER


                S.B. Criminal Misc. Petition No. 2711/2016
                 Salman Khan vs. State of Rajasthan & Anr.


Date of order: 3rd August, 2016.


          HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA


Mr. Pradeep Sharma on behalf of Mr. Rajesh Goswami, for the petitioner.

Mr. Jitendra Shrimal, PP for the State.

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No. 352/2015, registered at Police Station Bhankrota, Jaipur (West), for the offences under Sections 363 and 366 IPC.

This Court on 27.7.2016 had passed the following order:-

"Instant petition has been preferred under Section 482 Cr.P.C. by accused-petitioner seeking quashing of criminal proceedings in a case arising out of F.I.R. bearing No.352/2015, registered at Police Station, Bhankrota, Jaipur City (West) for offences punishable under Sections 363 and 366 of Indian Penal Code.

The learned counsel appearing for the petitioner has referred to statement (Annexure-2) of the prosecutrix (name withheld to protect her identity) recorded under Section 164 Cr.P.C., to contend that the prosecutrix has stated in a categoric terms that she is in love with the petitioner and both intend to perform the marriage.

Counsel appearing for the petitioner has submitted that the prosecutrix, sister of the complainant, is more than nineteen-years of age, hence, she has attained majority and is competent to marry, as per her own free will and accord.

Counsel appearing for the petitioner contends that prosecutrix, sister of the complainant, has already S.B. CRLMP No. 2711/2016 2 performed marriage with the petitioner.

The learned Public Prosecutor appearing for the State is directed to call for the concerned Investigating Officer before this Court on 03.08.2016, along with the case diary. Investigating Officer shall specifically acquaint this Court that as to what action he has proposed in the impugned F.I.R., after recording of statement of the prosecutrix under Section 164 Cr.P.C. by the Court of Magistrate.

It is, hereby, ordered that till the next date of hearing, further proceedings in a case arising out of impugned F.I.R. bearing No.352/2015, registered at Women Police Station, Bhankrota, Jaipur City (West) for offences punishable under Sections 363 and 366 of Indian Penal Code, shall be kept in abeyance.

Let the matter be listed on 03.08.2016. Let a copy of this order, under the seal and signature of the Court Master, be handed over to Mr. Sudesh Saini, learned Public Prosecutor appearing for the State, for onward transmission and necessary compliance."

Mr. Hemendra Sharma, SHO Bhankrota, Jaipur, who is investigating officer of the case is present in person. He has stated that during the investigation, he could not gather any evidence regarding age of Rekha Ganwariya, who is also present in the court. According to the investigating officer, ossification test was conducted and as per Medical Board, the age of the prosecutrix was found to be between 17 to 19 years. The investigating officer has also produced before this Court the order passed by the Division Bench on 3.2.2016 in in D.B. Habeas Corpus Petition No. 195/2015. The order dated 3.2.2016 reads as under:-

"In the present Habeas Corpus Petition, the case of the petitioner is that his sister allegedly minor has been kidnapped by Salman Khan, respondent No.5 and she be released from illegal custody.

The detenue was earlier produced before us on 27.11.2015 and on that date, on our asking she stated that she is major and living willingly with Salman Khan because her parents wanted to marry her with someone else. The detenue was however, directed to be sent to Balika Grah, Jaipur. Thereafter, detenue was again produced before us on 13.11.2016. And on that date, she stated that she is major and her parents have wrongly mentioned her date of birth. She also prayed that she be S.B. CRLMP No. 2711/2016 3 subjected to medical examination to ascertain her proper age. Having regard to the statement of detenue, we directed Superintendent of Sawai Mansingh Medical College, Jaipur to get her medically examined by a Medical Board.

In compliance of our order, detenue was medically examined by a Medical Board and as per its report, her age is found to be between 17 to 19 years. The report of Medical Board is taken on record.

Today, the detenue has reiterated that she does not want to live with the petitioner.

This being the situation, as detnue has married to Salman Khan and wants to live with him and also considering the fact that she is major, we find no merit in the petition. Detenue is free to live with Salman Khan. But it is reported that Salman Khan is in jail for the offences under Sections 366 and 376 IPC on the allegation that he has sexually abused the detenue. The detenue therefore, instead of being sent to Balika Grah, Jaipur be now,therefore, sent to Nari Niketan, Jaipur where she shall be allowed to live till she wants."

Rekha Ganwariya, sister of the complainant is present in the court. She has reiterated that she had married the petitioner and she is living happily with him as wife.

Rule 12.3 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 lay down the procedure for determination of the age and specifically states that where matriculation certificate or the certificate of first school attended is not available and the ossification test is conducted, one year benefit of the age is to be granted for determination of the age of the child.

Taking into account the observation made in D.B. Habeas Corpus Petition No. 195/2015 and the fact that the petitioner and Rekha Ganwariya, sister of the complainant are living happily as husband and wife, this Court is of the view that continuation of the proceedings arising out of impugned FIR is nothing but misuse and abuse of process of law.

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Consequently, the present petition is accepted and the impugned FIR No. 352/2015, registered at Police Station Bhankrota, Jaipur (West), for the offences under Sections 363 and 366 IPC, along with all subsequent proceedings is quashed.

(KANWALJIT SINGH AHLUWALIA), J.

Mak/-