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Saddam Khan vs The State Of Bihar on 13 May, 2014

Author: Ashwani Kumar Singh

Bench: Ashwani Kumar Singh

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 Criminal Miscellaneous No.16865 of 2013
                  ======================================================
                  Saddam Khan, S/o Lal Mohammad Khan, resident of Village-Thadhi
                  Bhawanipur, P.S- Pipra, District- Supaul.
                                                                     .... ....   Petitioner
                                                    Versus
                  The State of Bihar                             .... .... Opposite Party
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
                  ORAL ORDER


3.   13-05-2014

Heard learned counsel for the petitioner and learned counsel for the State.

2. By invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), the petitioner seeks quashing of the order dated 14th May, 2012 passed by the learned Chief Judicial Magistrate, Supaul in Pipra P.S. Case No.85 of 2011 by which he has taken cognizance of the offence punishable under Section 366A of the Indian Penal Code.

3. According to the prosecution case, on 28th July, 2011 at about 7 p.m. all the FIR named accused persons including the petitioner forcefully entered into the house of the informant and took away his daughter aged about 13 years with the intention to marry her with the petitioner. While doing so, 2 Patna High Court Cr.Misc. No.16865 of 2013 (3) dt.13-05-2014 2/6 one of the FIR named persons namely, Anwarul Khan took away cash to the tune of Rs. 70,000/- and silver jewellery worth Rs. 12,000/-.

4. For the said occurrence of offence dated 28th July, 2011, the FIR was registered on 9th August, 2011. According to the informant the delay in filing the FIR occurred due to Panchayati convened by the villager but since the Panchayat could not resolve the issue, matter was reported to the police belatedly.

5. Learned counsel for the petitioner has submitted that the victim had subsequently been recovered and was produced in Court for recording her statement under Section 164 of the Code. In her statement, she has disclosed her age to be 16 years. She has stated that she voluntarily left her house on 27th July, 2011 and reached at the place of the petitioner as she wanted to marry him. She further stated that she has entered into contract of marriage with the petitioner on 28th July, 2011.

6. It has further been contended that the victim being a Muslim girl and having attained the age of puberty on the date of alleged occurrence was competent to enter into contract of marriage as per her own choice. According to the petitioner, in case of Muslim girl, puberty is presumed unless 3 Patna High Court Cr.Misc. No.16865 of 2013 (3) dt.13-05-2014 3/6 contrary is proved, on completion of age of 15 years.

7. According to the petitioner, it would be evident that the two essential ingredients of Section 366A IPC, namely,

(i) element of inducement and (ii) girl being taken away for the purpose of sexual intercourse with another person are not made out and therefore, the order taking cognizance under Section 366A of the Indian Penal Code is bad in the eye of law.

8. Per contra, learned counsel for the State has submitted that the allegations made in the FIR do constitute a cognizable offence punishable under Section 366A of the Indian Penal Code. The petitioner is named in the FIR and on conclusion of investigation the police has found the allegations made in the FIR to be true. The petitioner has been sent up for trial by the police and there is no illegality in the order of cognizance passed by the learned Chief Judicial Magistrate, Supaul.

9. I have heard the parties and perused the record.

10. Indisputably, the girl in question was minor under the age of 18 years on the date of occurrence. Section 366A IPC also envisages an act of kidnapping of minor girl out of the lawful guardianship with intent that she might be forced or seduced to illicit intercourse.

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11. The essential ingredients of the offence under Section 366A IPC are as follows:-

"(i) The accused induced a minor girl below age of 18 years;

(ii) She was induced to go from any place or to do any act; and

(iii) She was induced with intent that she might be forced or seduced to illicit intercourse with another person."

12. In the present case, the father of the victim has disclosed the age of the victim to be 13 years only. There is allegation that she was abducted by the petitioner and others. There are several other witnesses named in the FIR. The informant and the witnesses have supported the prosecution case. It is true that the victim has disclosed herself to be aged 16 years and she has also stated that she out of her own will contracted marriage with the petitioner. However, the statement of the victim recorded under Section 164 of the Code alone cannot absolve the petitioner from the alleged offence.

13. The cognizance in a case is taken on the basis of the contents of FIR, the statements of witnesses recorded under Section 161(3) of the Code, the statements of witnesses recorded under Section 164 of the Code, the police report submitted under Section 173 of the Code and the documents 5 Patna High Court Cr.Misc. No.16865 of 2013 (3) dt.13-05-2014 5/6 submitted therewith.

14. In the present case, the impugned order dated 14th May, 2012 cannot be held to be bad simply because the victim who is admittedly a minor has given a contradictory statement under Section 164 of the Code. Taking into consideration the entire material collected in course of investigation, the Chief Judicial Magistrate has found a prima facie case to be made out against the petitioner and has taken cognizance of the offence.

15. So far as the contention of the petitioner that the victim having attained the age of puberty was competent to marry as per her own wishes is concerned, this Court is of the view that such a dispute in respect of age of the victim girl could not have been adjudicated by the Chief Judicial Magistrate at the stage of taking cognizance. According to the informant of the case, on the date of occurrence, the girl was aged 13 years only. In my view, a kidnapped minor girl's consent to her marriage with the accused is no consent at all and a prosecution would lie in such circumstances. A minor girl cannot be held to be capable of giving her consent. Consent may take the act out of Section 366A of the Indian Penal Code where the girl is above the age of consent.

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16. The contention of the petitioner that he was married with the victim with her consent would not absolve him from the alleged offence as the victim was not capable of giving her consent; nor was the consent of her guardian obtained under the Mohammedan Law.

17. The offence alleged is triable by the Court of Sessions. The duty of the Magistrate in the cases triable by the Court of Sessions after the submission of charge sheet is just to find out whether the material on record makes out a prima facie case. If the answer is in positive, he is bound to take cognizance and commit the case to the Court of Sessions for trial. At this stage he is not supposed to look into the pros and cons of the case and consider the defense of the accused.

18. In above view of the matter, the application is dismissed.

(Ashwani Kumar Singh, J) Sanjeet/-