Madhya Pradesh High Court
Deshraj vs The State Of Madhya Pradesh on 22 March, 2013
Mcr.C.No. 14775 of 2012
20.03.13
Shri Manish Awasthy, counsel for the applicant.
Shri R.P.Tiwari, GA for the respondent/State.
Shri Sharad Singh, counsel for the prosecutrix, namely,
Babli.
The applicant Deshraj as well as the prosecutrix Babli
along with their child Jatin Bansal aged 1 ½ years, are present in
person, identified by their respective counsel.
Heard on IA No.6622/13 an application on behalf of the
applicant to implead the aforesaid Babli as respondent No.2 in the
petition. Such application has been filed in compliance of some
earlier direction of this court dated 15.3.13.
On consideration, such IA is allowed and the applicant's
counsel is directed to implead the name of said Babli as respondent
No.2 on the record.
With permission of the court such name has been
incorporated as respondent No.2 on the record by the applicant's
counsel. The same is certified accordingly.
Also heard on IA No.6265/13 an application on behalf of
the applicant to place the annexed affidavit of respondent No.2 Babli
on record.
For the reasons stated in it, such document appears to be
relevant with the matter,hence by allowing the IA, such affidavit is
taken on record.
State counsel submits that he is under receipt of the case
diary.
Looking to the nature of the case and the question involved
in the petition as also in view of availability of the case diary, instead
to hear the same on the question of admission, with the consent of the
parties, this petition is heard for final adjudication.
ORDER
(20.3.2013)
1. The applicant, alleged accused has filed this petition under section 482 of the Cr.P.C for quashment of the FIR registered as Crime No.750/09 against him at police station Cantt, Sagar for the offence punishable under section 363 and 366 of the IPC. As alleged, he had kidnapped the respondent No.2 Babli in her age of below 18 years without consent of her natural guardian, the parents, with intention to perform the marriage and physical relations with her. Before hearing the arguments of the counsel of the parties, I deem fit to verify the averments of the petition as well as avermetns of the aforesaid affidavit of Babli respondent No.2.
2. On asking the applicant with respect of the averments of the petition, he categorically stated that the petition has been drafted at his instructions as well as instructions of his wife Babli/respondent No.2. He also admitted that he got married with Babli on dated 10.10.2010 at some Shiv Temple, A-block, Shastri Nagar, Ghaziabad and in that connection some Hindu Marriage Bureau of Gaziabad has also given them a marriage certificate dated 8.4.2011 (Annx.P-4) which certifies that aforesaid marriage had taken place on the aforesaid date according to the record of their institution. He also stated that subsequent to aforesaid marriage, they have been blessed with a son, namely, Jatin Bansal on dated 5.7.11. His birth certificate is placed on the record as Annex.P/5. He further said that he got married with respondent No.2, contrary to the wish of their parents and other family members that is why after leaving their native place by both of them to perform the marriage, the father of respondent No.2 lodged a missing person report (Annx.P/1) at Police Station Cantt. Sagar on dated 24.10.2009 and during the course of its inquiry, the impugned crime No.750/09 (Annx.P/2) was registered on dated 10.11.09 against him and some other co-accused for the offence under section 363 and 366 of the IPC. He also argued that according to the school record of respondent No.2, she was aged 17 years, six months and eight days on the date when she left her parental home but on the date of marriage 10.10.2010, she became major and got married with him in accordance with the Hindu rites and rituals, as stated above.
3. Subsequent to aforesaid on verification from Babli/respondent No.2 present in person along with the aforesaid child, namely, Jatin Bansal, she categorically stated that she voluntarily came and went with the applicant Deshraj and after attaining the age of 18 years, with her own wish, got married with him on aforesaid date and manner stated by applicant and since the date of marriage they are residing together happily as husband and wife. Out of such wedlock, they have also been blessed with the child, namely, Jatin Bansal. She further stated that initially she wanted to marry with the applicant but her parents were not prepared so she went with the applicant and after attaining the age of 18 years, performed the marriage with him. She also verified the aforesaid date of their marriage and date of birth of their child. She further stated that her parents were not prepared to marry her with the applicant and that is why after leaving the home voluntarily by her, her father lodged the aforesaid missing person report with the police and on its inquiry, the above-mentioned offence was registered against the applicant. She further stated that if the impugned FIR and criminal case is not quashed and applicant is taken in custody and prosecuted then in that circumstance, her life along with her child shall be destroyed within a very shorter period from the date marriage and in that situation, she and her child has to face the dire consequences and their future shall become dark and prayed to allow this petition with appropriate direction to quash the FIR and its entire investigation proceedings.
4. In view of the aforesaid verification, it has been established before the court that on the date when respondent No.2 accompanied voluntarily with the applicant, she was aged 17 years six months and eight days but subsequently she became major and got married with the applicant as stated above. In such premises, it appears that in continuation of the love affairs between the applicant and respondent No.2, by the time, the same has been culminated into marriage and further they have been blessed by the son and now they are living happily in their family but due to aforesaid missing person report on which the impugned crime has been registered by the police for the offence of section 363 and 366 of the IPC, their life have come in difficulty and if the investigation of said crime along with the FIR is not quashed till the extent of applicant then the future of their family would be destroyed. In such premises, the present petition appears to be bonafide, genuine and in order to save their life, this court has to pass the appropriate order.
5. After aforesaid verification, on asking the applicant's counsel to make his submission, on which, after taking me through the papers placed on the record and the aforesaid facts as stated by the parties themselves, by placing reliance on a decision of the Allahabad High Court in the matter of Mohan Mahali and another Vs. State of U.P. And another-2006 Cr.L.J-4287 and in the matter of Krishna Kumar and others Vs. State of U.P. And others- 1993 Cr.L.J-3825, the division bench decision of Gauhati High Court in the matter of Mrs. Shania Rahman Choudhary Vs. State of Assam and others-2009 Cr.L.J.-1930 and in the matter of Sangita Rani alias Mehnaz Jahan Vs. State of U.P.-1992 (Suppl). Scc-715, prayed for quashment of the aforesaid FIR as well as its investigation by admitting and allowing this petition.
6. Counsel of respondent No.2 has supported the aforesaid arguments of the applicant's counsel and prayed to quash the impugned FIR by allowing this petition.
7. Shri R.P.Tiwari, learned GA for the respondent/State, with the assistance of the case diary said that initially on the information of Vinod Ahirwar, father of respondent No.2 Babli, a missing person report (Annex.P/1) was registered against the applicant on 24.10.09 and during its inquiry the Crime No.750/09 (Annex.P/2) was registered against the applicant on 10.11.2009 for the offence punishable under section 363 and 366 of the IPC. By referring some papers of the case diary, he further said that on the date of the offence, respondent No.2 Babli was aged below 18 years and the applicant, with intention to get marry with her, took away her without the consent of her natural guardians, the parents, and, in such premises, he has committed the offence of section 363 and 366 of the IPC. He fairly conceded that subsequent to such incident, the applicant got married with respondent No.2 and out of such wedlock, they have been blessed with the child, namely, Jatin Bansal and now they are residing happily in their family. In response of some query of the court asking whether the applicant took away respondent No.2 from her residence or she herself came and accompanied him, on which, he submits that on the date of the incident respondent No.2 went to attend the school from where she did not return to home and, as per available record, she herself accompanied with the applicant and went away from the native place to some other place and thereafter they came back after getting married.
8. Keeping in view the aforesaid arguments, I have carefully gone through the papers placed on the record along with the averments of the petition as well as the affidavits of the parties so also the aforesaid cases cited on behalf of the applicant. Before giving the findings with respect of the case at hand, I would like to reproduce the concerned abstract of the aforesaid decisions cited by the applicant's counsel. In the matter of Mohan Mahali (supra), the Allahabad High Court has held as under :-
"8. The learned counsel for the applicant stated in the court that both Shanker Mahali and Anita are residing with the accused applicants as their son and daughter-in-law and children have also been born out of this wedlock during the period of last 5 ½ . Under these circumstances when the parties have settled the entire dispute amicably and they are residing together with their progeny happily and when the so-called minor girl Anita allegedly aged 15 years in 2001 does not want to say anything against the accused persons even after obtaining majority, no fruitful purpose is going to be served by pursuing the case further under sections 363/366 of the IPC and it is in the interest of justice to drop those proceedings.
9. The application under section 482 Cr.P.C is, therefore, allowed and the proceedings of criminal case No.1298 of 2005 State Vs. Mohan Mahali under section 363 and 366 IPC pending in the court of Special Chief Judicial Magistrate Varanasi are hereby quashed."
In the matter of Mrs. Shania Rahman (supra), the Gauhati High Court has held as under :-
"11. In view of the statement made by the petitioner before us today that she voluntarily got married to Nazim Ahmed leaves us with one option that her right to live wherever she likes cannot be interfered with and there is absolutely no reason to allow Hatigaon P.S 105 of 2008 under section 366/34 IPC pending against Md. Nazimuddin and others, to continue any more to multiply litigations.
12. In the facts and circumstances of the case, we deem it appropriate that the FIR filed in connection with kidnapping of the petitioner, which was registered as Hatigaon PS case No.105/08 is required to be quashed and accordingly it is quashed."
In the matter of Krishna Kumar (supra), the Allahabad High Court has held as under :-
"5. The criminal case under section 363/366 IPC arising out of the FIR dated 3.3.93 and the Habeas Corpus petition No.13325 of 1993 can be conveniently decided together only on the question that Rachna Agarwal is whether a major lady and she is under illegal detention of any other person specifically illegal detention by Krishna Kumar. We consider it necessary and appropriate to record her statements in Chamber after giving her more than 2 hours' time for composing herself so that she may make a free independent statement before the Court. We have recorded her statement in presence of the learned counsel for the parties. The father of Rachna Agarwal, namely, Ram Autar Agarwal appeared before us and identified that the girl Rachna Agarwal appearing before this court is the same girl and his daughter. We are, thus, satisfied that the same person makes the statement before us. In the statement Rachna Agarwal categorically stated that she is major, aged about 22 years. She stated that she left her parental home out of her free will without any coercion, allurement, inducement or deception from any one. She stated to have left her parental home on 22nd of February, 1993 with Krishna Kumar, whom she stated to have married according to Hindu rites. An application for registering the marriage was also submitted before the Registrar Hindu Marriages Act and an application showing the entertainment of the application for registration of the marriage under Hindu Marriage Act is on record. By supplementary affidavit, it has been shown that the marriage was also registered on 22.2.93. After recording the statement of Rachana Agarwal, we are satisfied that she is a major girl, she is not under any type of illegal detention, she also stated that she is happily staying with Krishna Kumar and parents-in-law at her husband's place. The family members of her husband are treating her with all love, affection and respect. In this circumstances, we consider it that no useful purpose would be served if investigation is allowed to continue arising out of the FIR noted above. The Supreme Court in similar circumstances in 1992 SCC (cri) 391 Sangita Rani (Smt) alias Mehraj Jahan Vs. State of U.P quashed the FIR and investigation. We consider it a fit case in which the FIR dated 3.3.93 Crime No.109 of 1993 under section 363/366 IPC, P.S. Khurja Nagar Dist. Bulandshar is liable to be quashed against all the accused persons, named in the FIR. No further investigation is further called for."
The aforesaid decision of the Allahabad High Court is based on the decision of the Apex Court in the matter of Sangita Rani alias Mehnaz Jahan Vs. State of Uttar Pradesh-(1992) Suppl. SCC
715.
9. In view of the aforesaid decision of different High Courts, on examining the case at hand, I have found sufficient circumstance in the matter to quash the FIR of the impugned case along with its entire investigation.
10. True it is that on the date when respondent No.2 Babli went with the applicant she was the age of 17 years six months and 8 days but it is apparent from the case diary as well as the submission of the State counsel that the applicant did not visit the residence of the parents of respondent No.2 to bring her with him. She voluntarily came and accompanied him and thereafter they went to some other place where only after attaining the age of maturity i.e more than 18 years by respondent No.2 on the above mentioned date, the applicant got married with her in some temple stated above for which the certificate of marriage was also issued by some Hindu institution of Gaziyabad Annex.P/4 and thereafter they are residing with each other happily in their family and out of such wedlock, they have also been blessed with the son, namely, Jatin Bansal whose birth certificate is placed on record Annex.P/5. The same has been issued by appropriate authority. In such certificate, the name of father is mentioned as Deshraj Bansal and name of mother is mentioned as Babli Bansal. It is settled proposition of the law when the applicant himself did not visit and took away the prosecutrix with him from lawful custody of her parents then he could not be deemed to be the accused for the offence of kidnapping.
11. For the sake of the arguments, it is deemed that the ingredients of the alleged offence are made out on the date of lodging the missing person report of respondent No.2 by her father even then in the above mentioned circumstance, in order to save the life of the applicant as well as respondent No.2 along with their aforesaid infant child aged 1 ½ years and their future, this court has to pass the appropriate order within the fore corners and frame work of the law. I would like to mention here that even on holding the investigation of the impugned case, in view of the aforesaid version of respondent No.2 before the court, no fruitful purpose would be solved and, in any case if the charge sheet is filed against the applicant with respect of the aforesaid offence then, in view of the available circumstance,on holding the trial, there is no chance to hold guilty to the applicant for the alleged offence. For the sake of arguments if it is deemed that the applicant is held guilty in the trial then in that circumstance, the life of respondent No.2 as well as the aforesaid infant child, namely, Jatin Bansal shall be destroyed because the parents of respondent No.2 are not co-operating her as they were against the aforesaid affairs and marriage of applicant and respondent No.2 that is why they lodged the report. It also appears that the parents or family members of the applicant are also not co-operating him because he has entered in the inter-caste marriage with respondent No.2. So, in such premises, to protect the life and future of both the persons along with their child, I am of the considered view that the further investigation of impugned crime No.750/09 registered at police station Cantt. District Sagar along with its FIR is not quashed and prosecution agency is permitted to proceed further and file the charge sheet in the matter to hold the trial against the applicant then the possibility to destroy the life of the applicant and respondent No.2 and their child till any extent could not be ruled out and, ultimately, in the above-mentioned circumstance, the case could not be culminated into conviction of the applicant. Thus, I am of the view that under the inherent powers of this court enumerated under section 482 of the Cr.P.C the impugned FIR and its investigation proceedings, in order to secure justice with the aforesaid parties should be quashed.
12. Consequently, this petition is allowed and the impugned FIR registered as Crime No.750/09 at police station Cantt. Sagar and its entire investigation proceedings at present, till the extent of applicant Deshraj, is hereby quashed.
13. Petition is allowed as indicated above.
(U.C.Maheshwari) Judge MKL