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2016 DIGILAW 1154 (ALL)

Anuradha @ Sweety v. State of U. P.

2016-03-31

ADITYA NATH MITTAL, AJAI LAMBA

body2016
JUDGMENT Aditya Nath Mittal, J. – This is a unique case of an unrelenting mother who refuses to accept the marriage of choice of her daughter and therefore, in prosecution of her own whims, in total abuse of process of the Court and abuse of process of the law has been initiating repeated criminal proceedings against the petitioners. While the Kidnapee/the alleged victim of offence has been repeatedly saying that she has not been kidnapped, however, the complainant/the mother of the Kidnapee has been repeatedly alleging that her daughter has been kidnapped. 2. The facts, in brief, are that petitioner no.1, 'A' got married to 'R' (petitioner no.2). The marriage of choice of 'A' has not been accepted by respondent No.4, 'M' (mother of petitioner no.1) therefore, criminal proceedings were initiated vide Case Crime No.611 of 2012, under Sections 363, 366, 452 & 506 Indian Penal Code, Police Station-Kotwali Nagar, District-Bahraich. Accused in the said case were sent to jail, subsequently were released on bail. Charge-sheet was submitted by the Investigating Officer. 3. It transpires that after conclusion of investigation of Case Crime No.611 of 2012 (Annexure No.3) (supra), the case went to trial in which the alleged kidnappee 'A' (petitioner No.1) was produced in court on 19.11.2015, as prosecution witness no.2. The statement given by 'A' in Court on oath is available on record as Annexure no.3 collectively. In the statement, 'A' has stated that on the date of incident she was nineteen years of age. She had not been kidnapped. She went to Kathmandu with 'R'. 'R' had not taken her to Kathmandu, rather 'A' had taken 'R' to Kathmandu. The other accused had not conspired with 'R' to take her away. She stayed in Kathmandu for two years with 'R' as his wife. From Kathmandu, 'A' went to Bahraich of her free will and appeared in the Police Station. In the cross-examination, 'A' disowned her statement recorded in the course of investigation and reiterated the examination-in-chief version. 4. It appears that after 19.11.2015 'A' was with her mother 'M', however, escaped and again went with 'R'. From Kathmandu, 'A' went to Bahraich of her free will and appeared in the Police Station. In the cross-examination, 'A' disowned her statement recorded in the course of investigation and reiterated the examination-in-chief version. 4. It appears that after 19.11.2015 'A' was with her mother 'M', however, escaped and again went with 'R'. 'M', De hors the fact that her daughter had given a statement in court on oath that she was married to 'R' and had not been kidnapped, again initiated criminal proceedings vide impugned First Information Report dated 26.01.2016, Case Crime No.57 of 2016, under Sections 363, 366 and 506 Indian Penal Code and 7/8 of the Protection of Children from Sexual Offences Act, Police Station-Kotwali Nagar, District-Bahraich (Annexure no.1). These proceedings have been challenged by way of this petition. 5. Considering the nature of dispute raised, this Court vide order dated 05.02.2016 passed the following order: - "1. This petition seeks issuance of a writ in the nature of certiorari quashing Case Crime No. 57 of 2016 under Sections 363, 366, 506 I.P.C. and 7/8 The Protection of Children from Sexual Offences Act, 2012, P.S. Kotwali Nagar, district Bahraich (Annexure-1). 2. Learned counsel for the petitioners has pointed out that the petitioner No.1 got married to petitioner No.2 of her free will and accord. Petitioner No.1 has not been kidnapped or induced to get married to petitioner No.2. The marriage was solemnised in Nepal in the year 2012. Respondent No.4 initiated criminal proceedings vide Case Crime No.611/2012 under Sections 363, 366 I.P.C. etc, P.S. Kotwali Nagar, district Bahraich. The petitioner No.1, alleged victim, has already given her statement before the trial Court, on oath, as P.W. 2. The statement has been appended with the petition as Annexure No.4 (page 43 onwards). Petitioner No.1 was declared hostile. Trial is underway. 3. Learned counsel contends that in total abuse of the process of the law and process of the Court, impugned proceedings have been initiated in regard to the same incident in context of the same victim, i.e. the petitioner No.1. 4. Issue notice to respondent No.4, returnable on 26.2.2016. 5. Till the next date of listing, arrest of the petitioners shall remain stayed. Filing of charge-sheet/further proceedings too shall remain stayed, till the next date of listing. 6. 4. Issue notice to respondent No.4, returnable on 26.2.2016. 5. Till the next date of listing, arrest of the petitioners shall remain stayed. Filing of charge-sheet/further proceedings too shall remain stayed, till the next date of listing. 6. The petitioners are directed to hand over the documents in regard to earlier case to Superintendent of Police, Bahraich on 11.2.2016, at 10.00a.m. Let the documents be sent by Registered A.D. post also, along with copy of our order. 7. Superintendent of Police, district Bahraich is directed to ensure that the documents in relation to the earlier case [(Case Crime No.611./2012(supra)] be verified and file his affidavit as to under what circumstances, second case has been registered, although in the earlier case, the victim of offence has already given her statement against the prosecution case. 8. Prima facie, it appears that constitutional rights vested in the petitioners have been violated by initiating second set of criminal proceedings in regard to an incident relating to petitioner No.1. 9. List on 26.2.2016." 6. In deference to above extracted order, affidavit dated 25.02.2016 has been filed by Sri Devendra Nath, officiating In-charge Superintendent of Police, Bahraich to the effect that the documents on which the petitioners have placed reliance (to which reference has been made in the order extracted here-in-above) have been found to be genuine. It has been concluded by the investigating agency that 'A' had attained age of majority at the time of incident. 'A' verified the fact that her date of birth was 26.01.1994, she had not been enticed by anyone and is leading a happy married life with her husband. It has further been stated by the officiating Superintendent of Police, District Bahraich that 'M' respondent no.4 (mother of 'A', the victim) had concealed the fact that similar criminal proceedings had earlier been initiated against the petitioners in which trial was going on and the prosecutrix/the alleged kidnapee had already deposed against the prosecution case. 7. The issue of quashing F.I.R. is required to be considered in context of law as laid down by the Hon'ble Supreme Court in AIR 1992 SC 604 : State of Haryana and others v. Ch. Bhajan Lal and others. 8. Hon'ble Supreme Court of India while taking notice of various judgments on the issue in Ch. Bhajan Lal's case (supra), has summed up as follows in paragraph 108. Bhajan Lal and others. 8. Hon'ble Supreme Court of India while taking notice of various judgments on the issue in Ch. Bhajan Lal's case (supra), has summed up as follows in paragraph 108. The said para when extracted reads as under: "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (emphasised by us) 9. This Court while considering somewhat similar facts and circumstances has considered the ingredients of Section 363 I.P.C. read with Section 361 I.P.C. and Section 366 I.P.C. in Shaheen Parveen and another v. State of U.P. and others, decided on 23.7.2015(Misc. Bench Writ Petition No.3519 of 2015). The following has been held in the relevant portion of the judgment: "6. Petitioner No.-2 is accused of committing an offence under Sections 363/366 of the Indian Penal Code. 7. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision. 8. "Kidnapping from lawful guardianship" has been defined under Section 361 of the Indian Penal Code. The provision when extracted reads as under: - "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. Explanation: - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception: - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose." 9. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision. 10. At the time of considering whether on admitting the allegations made in the F.I.R., offence has been committed or not, the ingredients of the offence are required to be considered, in context of the evidence collected during the course of investigation. 11. In the peculiar facts and circumstances of this case, the Court has minutely examined the facts that have emerged on investigation of the case. 14. The Investigating Agency is concluding that at the point in time when the victim left in the company of the accused, she was a few months less than 18 years, which is the relevant age mentioned in Section 361 of the Indian Penal Code, above extracted. Clearly, the Investigating Agency is taking a hypertechnical view of the issue. The other relevant facts and circumstances of the case are being ignored. 15. The issue whether the victim was kidnapped or abducted is required to be examined in context of the statement of the prosecutrix recorded under Section 164 Cr.P.C. 16. If the statement of the prosecutrix, above noted, is taken into account, it becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused/Sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the prosecutrix, without the consent of the guardian/respondent no. 4. In the case in hand, it is the case of the prosecutrix herself that she of her free will went with Sarfaraj, lived with him, wants to live with him and is expecting his child. Element of coercion and enticement by Sarfaraj is absent, although consent of the guardian had not been taken. 17. The writ court, being a court of equity, must take into consideration all relevant factors brought before it to deliver substantial justice. Equity justifies bending the rules, where fair play is not violated, with a view to promote substantial justice. A writ court cannot contemplate any limitation on its power to deliver substantial justice. It has to be ensured that a consumer of justice gets complete justice, instead of going into the nicety of law. Under the circumstances, the court cannot be a mere onlooker if injustice is likely to be caused. 18. Petitioner No.1 the victim/prosecutrix would be the best witness, rather the only witness of commission of offence under Sections 363/366 I.P.C. Surely, the victim will not support the prosecution case, as has been made evident by her in her statement, recorded in the course of investigation under Section 164 Cr.P.C., and therefore the trial would result in acquittal. During course of trial, considerable number of man hours would be wasted in prosecution/ defending and judging the case. No useful purpose would be served and the entire exercise of trial would be in futility because the victim has declared that she was not victimised or kidnapped. 19. The facts that have emerged from the record make it evident that the impugned criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent No.-4) has not accepted the marriage of her daughter with petitioner No. 2. 20. 19. The facts that have emerged from the record make it evident that the impugned criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent No.-4) has not accepted the marriage of her daughter with petitioner No. 2. 20. In case, despite the evidence that has come on record, as noted above, proceedings are not quashed, petitioner No.-2 would be required to face criminal charges and undergo the agony of a trial. 21. We have also taken into account the fact that in case the petitioner No.2 is allowed to be prosecuted, the matrimonial life of petitioner No.1/the alleged victim would be disrupted. Her husband would be incarcerated and there would be no one to take care of her child, who is yet-to-be-born. 22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. In case the victim/ prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him. 23. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act that she had gone with the boy and got married to him. In such circumstances, desire of the girl/victim is required to be seen. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation. 24. Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian. 25. So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. (The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme Court of India reported in (1965) 1 SCR 243 S. Varadarajan v. State of Madras). 26. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No. 1) was a few months short of attaining age of 18 years. The said petitioner had attained age of discretion, however, not age of majority. Petitioner No.1, the victim in her statement recorded under Section 164 Cr.PC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him. 27. The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed herein above. 28. In view of the facts and circumstances of the case noted above, the Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion, particularly when there is no evidence to indicate that the marriage is void. 30. In view of above, petitioner No.2 cannot be said to have committed offence either under Section 363 I.P.C. read with Section 361 I.P.C. or under Section 366 I.P.C. 31. In the above noted facts and circumstances, we are of the view that ends of justice would be served if the petition is allowed." 10. We have independently considered the entire material brought on record by the investigating agency in context of the ingredients of offence under Section 363 I.P.C. read with Section 361 I.P.C. and Section 366 I.P.C. 11. In the statement given as PW-2 in a court of law during trial, as referred to above, 'A' had clearly stated that it is 'A' who had taken 'R' to Kathmandu; got married to 'R' and lived with him as his wife for approximately two years in Kathmandu. It, therefore, becomes incontestable that 'A' had not been kidnapped. In the statement given as PW-2 in a court of law during trial, as referred to above, 'A' had clearly stated that it is 'A' who had taken 'R' to Kathmandu; got married to 'R' and lived with him as his wife for approximately two years in Kathmandu. It, therefore, becomes incontestable that 'A' had not been kidnapped. Offence under Section 366 Indian Penal Code had not been committed. 12. From the statement, given by the Kidnapee/prosecutrix 'A' in Court on oath, it is established that 'A' of her own discretion and decision had taken 'R' to Kathmandu. In such circumstances, it is clear that 'A' had abandoned the guardianship of her mother, without any role having been played by the accused. Also 'A' has already attained age of majority and, therefore, Section 363 read with Section 361 Indian Penal Code could not have been invoked. Surely 'M' knew the age of 'A' and, therefore, action of 'M' defies all reason in initiating impugned criminal proceedings against petitioners 2 to 7. 13. The facts of the case under consideration, as above noted, clearly establish that impugned criminal proceedings have been initiated in total abuse of process of the Court and abuse of process of the law. In the act of initiating impugned criminal proceedings vide Case Crime No.57/2016 (supra), the complainant 'M' has acted in a mala fide manner so as to persecute respondents 2 to 7 who, to the knowledge of 'M', had not committed any crime. For concluding this, at the cost of repetition, we record that although 'A', the prosecutrix had given a statement on oath in court as prosecution witness No.2 in context of trial of Case Crime No.611/2012 (supra) on 19.11.2015 against the prosecution case establishing that she had not been kidnapped, yet 'M' created and fabricated an incident of kidnapping of 22.11.2015 while initiating impugned criminal proceedings vide Case Crime No.57/2016 (supra). It can clearly be gathered that 'M' knew about the statement given by her daughter in Court on 19.11.2015 because 'M' herself had appeared as prosecution witness No.1 in the same trial, being the complainant. Despite personal knowledge that her daughter had not been kidnapped and offence had not been committed, yet impugned criminal proceedings have been initiated to prosecute petitioners 2 to 7. It clearly establishes an act of vindictiveness on the part of 'M'. 14. Despite personal knowledge that her daughter had not been kidnapped and offence had not been committed, yet impugned criminal proceedings have been initiated to prosecute petitioners 2 to 7. It clearly establishes an act of vindictiveness on the part of 'M'. 14. This Court, under the circumstances, is convinced that 'M' on account of her own ego has initiated criminal proceedings on furnishing false information with intent to cause public servant to use the lawful power to cause injury to petitioner nos. 2 to 7. The investigating agency invested numerous man hours in investigation of the case/ crime, while 'M' (complainant) knew that no crime had been committed. The petitioners had to approach this court in challenge to impugned proceedings, although it is apparent that petitioner nos. 2 to 7 have not committed any crime. 15. We have minutely considered the entire material available on record, in context of ingredients of Section 363 I.P.C. read with Section 361 I.P.C. and Section 366 I.P.C. Likewise, because the prosecutrix had attained age of discretion and age of majority, the provisions of Protection of Children from Sexual Offences Act are not attracted. We are of the considered opinion that the ingredients of the offences invoked against petitioners 2 to 7 are not made out. The case of the said petitioners is covered by categories 1 and 3 emphasised in the extracted portion of judgment, rendered by Hon'ble Supreme Court of India in Bhajan Lal's case, A.I.R. 1992 SC 604(supra). We are further of the considered opinion that the case of petitioners 2 to 7 is covered by judgment rendered by this Court in Shaheen Parveen's case, 2016 (2) A.L.J. 47 (supra). 16. Considering the totality of the facts and circumstances of the case, we hereby allow this petition. Case Crime No.57 of 2016, under Sections 363, 366 and 506 Indian Penal Code and Section 7/8 of Protection of Children from Sexual Offences Act, Police Station-Kotwali Nagar, District-Bahraich is hereby quashed. 17. Considering the fact that impugned criminal proceedings have been initiated in a malafide and vindictive action, and in total abuse of process of the law and process of the Court, we hereby impose cost, quantified at Rs.20,000/-, to be recovered from 'M'(respondent No. 4) and to be paid to petitioner No. 2, on or before 23rd of May, 2016. 17. Considering the fact that impugned criminal proceedings have been initiated in a malafide and vindictive action, and in total abuse of process of the law and process of the Court, we hereby impose cost, quantified at Rs.20,000/-, to be recovered from 'M'(respondent No. 4) and to be paid to petitioner No. 2, on or before 23rd of May, 2016. In case cost amount is not paid or deposited in this Court, the said amount would be recoverable as arrears of land revenue from 'M'. 18. We further direct Superintendent of Police, Bahraich to initiate proceedings under Section 182 I.P.C. against respondent complainant, namely Smt. Mainawati for giving false information, with intent to cause public servant to use his lawful power to the injury of another person. This direction is being issued to dissuade vindictive litigants from abusing process of the law for their personal whims. 19. Let a copy of this order be sent by Senior Registrar of this Court to Superintendent of Police, Bahraich and the Magistrate concerned. Order accordingly.