Patna High Court - Orders
Kiran Kumari @ Kiran Devi & Anr. vs The State Of Bihar & Ors on 20 March, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.190 of 2012
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1. Kiran Kumari @ Kiran Devi D/O Ram Balabh Ravidas Resident Of
Villag- Fathepur, P.S- Bhanarua, District- Patna At Present Wife Of Kundan
Kumar, Resident Of Nehalchak, P.S- Gaurichak, District- Patna.
2. Kundan Kumar S/O Mahendra Chauhan Resident Of Village-
Nehalchak, P.S- Gaurichak, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Director General Of Police, Bihar,
Patna.
2. The Inspector General Of Police, Bihar, Patna
3. The Deputy General Of Police, Bihar, Patna.
4. The Senior Superintendent Of Police, Patna
5. The Superintendent Of Police, Rural, Patna. Null Null
6. The Officer In Charge, Gaurichak Police Station, Patna. Null Null
7. The Investigating Officer, Gaurichak, P.S Case No. 10 Of 2012,
Gaurichak Police Station- Patna.
8. Raj Balabhdas S/O Late Karu Das Resident Of Village- Nehalchak, P.S-
Gaurichak, District- Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y.C. Verma, Sr. Adv
Mrs. Premsheela Pandey, Adv.
For the Respondent/s : Mr. Saroj Kumar Sharma, AC to AAG-5
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
3 20-03-2012Heard learned counsel for the petitioners as well as learned AC to AAG-5.
2. Petitioners posing themselves to be spouses have claimed for quashing of First Information Report of Gaurichak P.S. Case No. 10 of 2002 registered under Sections 366A, 34 of the IPC on the ground that;
(a) both are majors and they have married according to their sweet will ignoring the sermon of their parents. Patna High Court CR. WJC No.190 of 2012 (3) dt.20-03-2012 2
(b) no offence under Section 366A of the IPC is made out on the plain reading of the allegation.
3. To buttress his plea, the learned counsel for the petitioners submits that when a girl is procured for satisfaction of other's desire then and then only 366A of the IPC will be applicable otherwise confining to the extent of himself, negativates its application. On this score, the learned counsel for the petitioners with the help of Lata Singh's case and Khushboo's case submitted that summoning of an accused on false and frivolous ground happens to be injurious and the same should not be permitted. Also submitted that in the background of the factual aspect, permitting the investigation furthermore will be nothing but an abuse of the process of the court.
4. It has further been submitted that petitioner no.1 Kiran Kumari @ Kiran Devi is major and she has married with petitioner no.2 on her own volition therefore the parents, out of whom, father standing as an informant, is none recognizable in the eye of law. The cumulative effect, in the aforesaid factual as well as legal aspect attracts quashing of the FIR.
5. On the other hand, learned AC to AAG-5 submitted that after having thorough investigation it could be ascertained for what purpose/motive the victim was taken away. Not only this, Patna High Court CR. WJC No.190 of 2012 (3) dt.20-03-2012 3 minority or majority is the crux which could be ascertained only after appearance of the victim for medical examination because of the fact that no reliance could be placed over Annexure-1 of the petition, the transfer certificate which could be easily made available.
6. In a case of kidnapping/abduction having present colour, the age of the victim plays an important role. It is a settled principle of law as decided by catena of decisions as well as reported in 2006(1) SCC (Crl) 324, 2007(14) SCC 497 the writ court while exercising its power cannot substitute the act/function of investigating authority. Therefore on mere submission advanced on behalf of the petitioner this Court finds itself constraint to accept the identity of the petitioner no.1 to be a major one because it happens to be the duty of the investigating authority which could take necessary steps for getting the age of the victim ascertained and for that purpose, victim is to appear before the investigating authority. None of the celebrated judgment as referred by the learned counsel for the petitioners gives strength on this score in favour of petitioners nor on mere submission in a elasticated manner this Court transpose a minor to a major.
7. As such, the submission raised on behalf of the petitioners on this score appears to be non convincing. Patna High Court CR. WJC No.190 of 2012 (3) dt.20-03-2012 4
8. However, taking into account status of the parties, it looks desirable that petitioner no.1 be directed to appear before the Investigating authority who, without delay, will examine and record her statement under Section 161 or 164 of the Cr.P.C. and will also evaluate her age by way of medical examination. During said process, no allurement, coercion, threat will be imposed upon petitioner no.1 Kiran Kumari @ Kiran Devi. If the petitioner no.1 is found to be a major one, then she will be at her own liberty. In course of the order, in the contrary event, the learned lower court will also take into notice the direction given by a Division Bench of this Court in a judgment reported in 2010(4) BLJ 256 (Sahebi Khatoon @ Sahebi v. State of Bihar & Ors.
9. With the aforesaid direction petition is disposed of.
(Aditya Kumar Trivedi, J) perwez