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2009 DIGILAW 56 (CAL)

Bapi @ Sarajit Biswas v. STATE OF WEST BENGAL

2009-02-04

ARUNABHA BASU

body2009
Judgment :- (1) The revisional application under Section 482 "of the Code of Criminal Procedure is directed to quash the proceeding in connection with G.R.Case No. 685 of 2006, arising out of Chakdah Police Station Case No. 330 of 2006 under Sections 363/366/34 of the Indian Penal Code/now pending before the Court of learned Additional Chief Judicial Magistrate, Kalyani. (2) Petitioners herein are arrayed as accused in connection with the aforementioned case in which the police officer on conclusion of investigation, submitted charge-sheet against the petitioners. (3) The case arises out of First Information Report lodged by the opposite party No. 2 stating inter alia that the minor son of the opposite party No. 2 aged about 14 years was removed from the lawfully guardianship of opposite party No. 2 by the accused persons. (4) As already observed, investigation was conducted by police officer and on conclusion of investigation charge-sheet is submitted. (5) In the revisional application the specific recital is made that the alleged kidnapped girl namely Itika Biswas, who is impleaded as opposite party No. 3 is not a minor as alleged in the First Information Report lodged by her father. It is further contended that there was love affairs between opposite party No. 3 with petitioner No. 3 Sanjay Biswas and the opposite party No. 3, who was a major on the date of occurrence entered into matrimonial relationship with petitioner No. 3. (6) The learned Advocate for the petitioners during the course of hearing submitted that documents filed along with the application clearly indicates that the age of the opposite party No. 3 has been deliberately suppressed. The alleged occurrence took place in the year 2006. According to transfer certificate issued by Lakshmipur G.S.F. Pry. School the date of birth of the opposite party herein is 17.1.1988. On the date of alleged occurrence, opposite party No. 3 was more than 18 years of age and is sui juris. (7) It is evident that in the First Information Report, the opposite party No. 2 has mentioned the age of his daughter, which is not correct. The petitioner has also produced documents such as Voter Identity Card and Marriage Registration Certificate issued by competent marriage officer. (8) It is the contention of the petitioner that he has married opposite party No. 2 and child is born in the said wedlock. The petitioner has also produced documents such as Voter Identity Card and Marriage Registration Certificate issued by competent marriage officer. (8) It is the contention of the petitioner that he has married opposite party No. 2 and child is born in the said wedlock. The Marriage Registration Certificate is a further proof that the parties herein have entered into matrimonial ties consequent to their love affairs. This relationship was not acceptable to opposite party No. 2 and as the opposite party No. 3 left with petitioner No. 3, the opposite party No. 2 has got registered a case under Section 363/366 of the Indian Penal Code. In the Voter Identity Card, the opposite party No. 3 has been described to be the wife of petitioner No. 3. When two adults out of love affairs entered into matrimonial relationship, there cannot be any prevention under any law. Such entering into relationship cannot be subject to the consent of the parents. Adult male and female under the law of this country is entitled to enter into matrimonial ties without the consent or even knowledge of anybody. When adult is made to interfere with such relationship by way of registration of criminal case, the High Court is required to interfere with the same in exercise of its power under Section 482 of the Code of Criminal Procedure. (9) In late Singh v. State of U. P. and Anr. reported in AIR 2006 SC 2522 : (2007)1 C Cr LR (SC) 19, Division Bench of the Honble Supreme Court while explaining the scope of Article 21 of the Constitution in connection with the matters arising out of inter-caste marriage, held as follows : "17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriage are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration /police authorities throughout the country will see to it that if any boy or girl Who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law." (10) In this case, there was allegation against the parties under Section 366/368 of the Indian Penal Code, it can be found from the statement of the alleged victim girl that she is adult and on her own volition she entered into a matrimonial relation with a person who was not a member of her own caste. (11) The Honble Supreme Court also took into consideration about the barbaric practice of honour killings and held at para 18 of the aforesaid decision, which is set out below : "18. We sometimes hear of honour killings of such persons who undergo inter caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. We sometimes hear of honour killings of such persons who undergo inter caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism." (12) In this case the Honble Supreme Court quashed the proceeding in terms of provision under Section 482 of the Code of Criminal Procedure. (13) Learned Advocate, for the petitioners has also referred to other decisions of this High Court but in view of the decision of Honble Supreme Court as referred to above, the other decisions which only follows the principle as laid down by the Honble Supreme Court in Late Singh v. Stete of U.P. and Anr. (supra), need not be referred. (14) The position about the matrimonial relationship between the petitioner No. 3 and opposite party No. 3 is not disputed by the learned Advocate appearing for the opposite party No. 3. It is not in dispute that the opposite party No. 3 consequent to her marriage with petitioner No. 3 is leading happy married life. She bore children through the petitioner No. 3. It is evident that criminal case has been registered only to break that relationship. When this Court finds that there is no material in support of the contention of the F.I.R. and there is no material in support of the contention in charge-sheet, even remotely attracting the provision under Section 363/366 of the Indian Penal Code, the High Court is required to interfere to prevent such abuse of the process of Court and also to prevent harassment to the petitioner and the opposite party No. 3. It is most unfortunate that the opposite party No. 2 instead of accepting the actual state of affairs has resorted to initiation of criminal prosecution only to disturb the matrimonial relationship of petitioner No. 3 with the opposite party No. 3. (15) Revisional application is disposed of with the direction that the above noted proceeding now pending before the learned Court below stands quashed. If any of the petitioners are on bail, they stand discharged from the bail bonds. (16) Criminal Section is directed to send a copy of the order to the learned Court below. (15) Revisional application is disposed of with the direction that the above noted proceeding now pending before the learned Court below stands quashed. If any of the petitioners are on bail, they stand discharged from the bail bonds. (16) Criminal Section is directed to send a copy of the order to the learned Court below. (17) Criminal Section is further directed to supply urgent photostat copy of the order to the parties as and when applied for.