Punjab-Haryana High Court
Amir Khan Nath vs State Of Punjab And Others on 29 January, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. M-8818 of 2013 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. M-8818 of 2013
Date of Decision: January 29, 2014
Amir Khan Nath
---Petitioner
versus
State of Punjab and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. V.D.Sharma, Advocate
for the petitioner
Mr. Neeraj Sharma, AAG, Punjab
for respondent-State.
Respondent No. 2 in person
Mr. Ashok K.Sharma, Advocate
for Mr. Rahjender Sarout, Advocate
for respondent No. 3
***
REKHA MITTAL, J.
The present petition under Section 482 of the Code of Criminal Procedure (for short "the Code") has been preferred seeking quashing of FIR No. 96 dated 29.9.2012 registered at Police Station, Jaito, District Faridkot for offence under Sections 363, 366-A of the Indian Penal Code (for short "IPC") (Annexure P-2) and proceedings emanating therefrom.
Counsel for the petitioner has submitted that Happy, daughter of Buta Singh complainant (respondent No. 2 herein) fell in love with the petitioner, voluntarily left her parental home and performed marriage with Saini Paramjit Kaur 2014.02.03 16:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. M-8818 of 2013 -2- the petitioner. It is further submitted that there is no document in regard to age of the alleged kidnapped girl and for assessment of her age, the Civil Surgeon referred the matter to the medical board. As per opinion of the medical board, Happy was in the age bracket of 17-19 years. It is further submitted that as per settled position of law, there is margin of two years either side viz-a-viz the age of a person assessed on the basis of ossification test. According to counsel, the benefit of said variation is liable to be extended to the accused (petitioner herein).
Another submission made by counsel is that Happy is leading a happy married life during her stay with her husband and out of the wedlock, a female child has been born. According to counsel, continuation of criminal proceedings against the petitioner in the circumstances, may disturb marital relationship of the daughter of the complainant.
Counsel for respondent No. 2 would argue that daughter of the respondent was less than 18 years of age and as she was taken out of the keeping of the lawful guardian i.e. respondent No. 2, the petitioner has committed an offence punishable under Sections 363 and 366 IPC. It is further submitted that the petitioner may be directed to disclose the place of his residence so that respondent No. 2 may be able to meet his daughter.
I have heard counsel for the parties and perused the records. The alleged kidnapped girl filed a short affidavit dated 21.8.2013. A relevant extract therefrom reads as follows:-
1.That the petitioner and deponent has solemnized their marriage with free contents on 29.9.2012 as per the marriage certificate annexure P-1.Saini Paramjit Kaur
2.That petitioner and deponent has approached before this 2014.02.03 16:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. M-8818 of 2013 -3- Hon'ble Court for seeking protection by filing CRM-M- 31155 of 2012. The deponent is illiterate and there is no proof of age.
So deponent has obtained medical certificate qua age proof from Civil Surgeon, Mohali. As per the certificate Annexure P-3, the age of the deponent is 17-19 years.
3. That father of the deponent-respondent No. 2 was not agreed with the said marriage and false FIR No. 96 dated 29.9.2012 U/S 363,366-A IPC has been registered against the petitioner mentioning the wrong age of the deponent. The date of birth certificate issued on 08.04.2013 is procured document and the date of birth of the deponent is not 01.01.1996.
4. That life and liberty of the deponent and petitioner is in danger and police is behind them. The deponent and petitioner are running here and there to hide themselves. Deponent is pregnant and needs complete care and rest. Hence, the present FIR be quashed.
Not only this, she appeared before the Court and her statement recorded on 29.1.2014 reads thus:-
"I have performed marriage with Amir Khan Nath according to my free will and without any misrepresentation etc. From the wedlock, a daughter has been born. I am leading a happy married life with my husband Amir Khan Nath in Jaito Mandi. My father has lodged an FIR against my husband as he did not give his consent for my marriage with Amir Khan Nath. My husband-petitioner Amir Khan Nath neither kidnapped me nor committed any offence.
Perusal of the affidavit filed by the alleged kidnapped girl and her statement recorded in the Court, substantiates the plea of the petitioner that Happy voluntarily left her parental home, joined the petitioner, performed marriage, residing as a wife with the petitioner and out of their wedlock, a daughter has been born. Perusal of birth certificate (Annexure Saini Paramjit Kaur 2014.02.03 16:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. M-8818 of 2013 -4- R-1) would reveal that as per the said certificate, Happy was 16 years and more than 08 months on the date of occurrence. As Happy left her parental home voluntarily with an intention to perform marriage with the petitioner because of intimacy developed between them, the petitioner cannot be accused of committing offence under Sections 363, 366 IPC.
Section 361 IPC provides for kidnapping from lawful guardianship. A relevant extract from Section 361 IPC is quoted hereinbelow:-
361. Kidnapping from lawful guardianship.-- 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."
The word 'takes' or 'entices' understandably contain an element of use of force upon the victim. In case a girl aged about 17 years had taken a decision to leave the custody of her guardian with an intent to convert her love relationship into marriage relationship, it is difficult to accept that her lover (now her husband) has committed offence of kidnapping under Section 363 or 366 IPC. In this context, reference can be made to a Division Bench judgment of Delhi High Court in Jitender Kumar Sharma vs. State and another2010(4)R.C.R.(Civil) 59.
In the light of facts and circumstances discussed hereinabove, I am of the considered opinion that continuation of criminal proceedings would be nothing but an exercise in futility at the cost of wastage of Saini Paramjit Kaur 2014.02.03 16:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. M-8818 of 2013 -5- precious time of the Court and harassment to the petitioner.
In the result, the petition is allowed, FIR FIR No. 96 dated 29.9.2012 registered at Police Station, Jaito, District Faridkot for offence under Sections 363, 366-A IPC (Annexure P-2) and proceedings emanating therefrom are ordered to be quashed.
(REKHA MITTAL) JUDGE January 29, 2014 PARAMJIT Saini Paramjit Kaur 2014.02.03 16:00 I attest to the accuracy and integrity of this document Chandigarh