Gauhati High Court
Biswajit Haloi vs The State Of Assam & Anr on 21 August, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Crl. Pet. No. 970 of 2014
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
21.08.2017
Heard Mr. Sandeep Dey, learned counsel for the petitioner and Mr.
Hrishikesh Sarma learned Additional Public Prosecutor appearing for the State
respondent Nos.
Office note dated 05.08.2015 shows that though the informant received notice of this case but she has not appeared in the matter, as such service of notice on her is complete and the matter proceeded exparte against her.
This petition under Section 482 Cr.P.C. has been filed by the petitioner for setting aside the Charge Sheet filed in Digboi Police Station Case No. 209/2012 corresponding to G.R. Case No. 661/12(A) under Section 366 IPC presently pending in the court of learned sub-Divisional Judicial Magistrate at Margherita.
The informant/respondent No. 2 on 30.10.2012 lodged an FIR before the Officer-in-Charge of Digboi Police Station alleging that her daughter, a student of 3rd year in Digboi Women's College was kidnapped from the Girls hostel on 05.10.2012 by the petitioner who resides adjacent to the temple situated near the Power House at Kahilipara and that she has come to know that they are living in the said house of the petitioner and therefore, prayed for necessary action stating that the delay in filing the FIR as she was in search of her daughter. The said FIR informant/respondent No. 2 was accordingly registered as Digboi Police Station Case No. 209/2012 [G.R. Case No. 661/12(A)] under Section 366 IPC (Annexure - 1 & 2 to the petition) and after completion of investigation of the case the concerned Officer-in-Charge filed the Charge Sheet in said Digboi P.S. Case vide No. No. 87/2013 dated 26.06.2013 under Section 366 IPC finding prima facie materials against him (Annexure - 4 to the petition).
The contention of the petitioner herein is that both the petitioner and the daughter of the informant/respondent No.2 are major, who were initially Face Book Crl. Ptn. No. 970 of 2014 Page 4 of 4 friends and later a love affair between them began and on 13.10.2012 both of them were married socially in presence of family members and thereafter lived together as husband and wife, as such question of kidnapping the victim by the petitioner, as alleged in the FIR dated 30.10.2012, does not arise. The petitioner also brought to the notice of the Court with regard to the 164 Cr.P.C. statement of victim recorded by the learned Judicial Magistrate, Margherita on 16.05.2013 wherein the victim admitted that in September, 2012 she left with the petitioner and they got married and thereafter she went back to Digboi to fill up her B.A. Final Examination Form. The petitioner has also placed before the Court that in her said 164 Cr.P.C. statement the victim did not state that the petitioner forcefully taken away her.
The petitioner stated that the victim applied for her Elector Photo Identity Card by giving his residential address specifying him as her husband in that regard annexed a copy of her such Elector Photo Identity Card issued by the Election Commission of India.
The petitioner has also stated that he had received Notice dated 25.08.2014 from the Court of learned District Judge, Tinsukia in Title Suit (M) No. 92/2014 along with a copy of the plaint of said Title Suit (M) No. 92/2014 that has been filed by the victim on 30.07.2015 under Section 13(1)(i-a) of the Hindu Marriage Act before the learned District Judge, Tinsukia, seeking divorce from the petitioner along with a copy of the Misc (M) Case No. 114/2014, a petition under Section 24 of the Hindu Marriage Act filed by the victim on 30.07.2014 for granting of maintenance pendent lite alongwith (Annexure - 7 series to the petition) From the plaint of said Title Suit (M) No. 92/2014 the petitioner placed before the Court in her said plaint, the victim at paragraph 11 has stated as follows:
"11. That after the above incident for a week the behavior of the respondent towards petitioner remain normal but with the passage of time the respondent again started to torture the petitioner both mentally and physically. The petitioner who was a student came to her paternal home on 19.02.2013, for submitting of examination form of BA Pat II (English Back paper) at Digboi Women's College and returned to her matrimonial home on 22.02.2013."Crl. Ptn. No. 970 of 2014 Page 4 of 4
The essential ingredients of the offence under Section 366 IPC are - (A) For the first part of the Section -
(i) Accused kidnapped or abducted a woman;
(ii) Accused intended or knew it likely that -
(a) the woman abducted or kidnapped would be compelled to marry any person against her own will or
(b) she would be forced or seduced to illicit intercourse.
(B) For the second part of the Section -
(i) Accused induced any woman to go from certain place;
(ii) Accused did it by criminally intimidating her;
(iii) Accused did so by abuse of his authority; or
(iv) Accused did so by any method of compulsion;
(v) Accused intended or knew it likely that such woman would be forced or seduced to illicit intercourse.
It is seen from the plaint of the Title Suit (M) No. 92/2014 filed by the victim under Section 13(1)(i-a) of the Hindu Marriage Act which is now pending before learned District Judge, Tinsukia, it is seen that the said victim herself stated that -
"she with her future hope and aspiration entered into matrimonial relationship with the petitioner herein and after coming back to her paternal home on 19.02.2013 to submit her examination form of BA Pat II (English back paper) at Digboi Women's College, she returned to her matrimonial home on 22.02.2013."
From the above and on perusal of the of the statement of the victim recorded under Section 164 Cr.P.C. before the learned SDJM, Margherita on 16.05.2013 and the statements made by her in the plaint in Title Suit (M) No. 92/2014 as well as in her Misc Case No. 114/2014; there is nothing on record to show that the petitioner kidnapped the victim and compelled her to marry him thereby committed an offence under Section 366 IPC as alleged by the respondent No. 2 in her FIR pertaining to Digboi P.S. Case No.209/2012 [corresponding to G.R. Case No. 661/12 (A)] and as specified in the Charge Sheet No. 87/2013 dated 26.06.2013 filed in the said Digboi P.S. Case.
Considering the entire aspect of the matter and for the reasons above this Court is of the view that in the aforesaid circumstances, if the proceeding of said G.R. Case No. 661/12 (A) arising out of said Digboi P.S.Case No.209/2012 under Section 366 IPC, pending before the learned Sub-Divisional Judicial Magistrate, Crl. Ptn. No. 970 of 2014 Page 4 of 4 Margherita, against the petitioner, is allowed to proceed; than it would be an abuse of the process of the Court. Therefore, to secure the ends of justice, in exercise of the power conferred under Section 482 Cr.P.C., the proceeding of said G.R. Case No. 661/2012 (A) arising out of Digboi Police Station Case No. 209/2012, under Section 366 IPC, pending before learned Sub-Divisional Judicial Magistrate, Margherita against the petitioner is hereby set aside and quashed. Consequently, the FIR dated 30.10.2012 pertaining to said Digboi Police Station Case No. 209/2012 as well as the Charge Sheet No. 87/2013 dated 26.06.2013 filed in the said Digboi P.S. Case 209/2012 are also set aside and quashed.
The interim order dated 08.12.2014 passed earlier in this case staying the proceeding of said G.R. Case No. 661/2012 (A) arising out of Digboi Police Station Case No. 209/2012, stands merged with this order.
Accordingly, this Criminal Petition stands allowed.
Registry shall forward a copy of this Order to the Court of learned Sub- Divisional Judicial Magistrate, Margherita, District - Tinsukia, forthwith.
JUDGE Pb/-
Crl. Ptn. No. 970 of 2014 Page 4 of 4