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2016 DIGILAW 1755 (RAJ)

Mubarik v. State of Rajasthan

2016-12-05

BANWARI LAL SHARMA

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JUDGMENT : Banwari Lal Sharma, J. 1. Investigating Officer Mr. Mukesh Kumar, Sub Inspector, Police Station Bhiwadi, District Alwar is present in person who submitted factual report of the matter through learned PP Mr. Anil Kumar Yadav which is taken on record. 2. Respondent No. 2- Arshad is present with his counsel Mr. R.R. Goyal, therefore, service is complete. 3. This misc. petition under Section 482 Cr.P.C. is preferred by the petitioner Mubarik for quashing FIR No. 57/2016 registered at Police Station Bhiwadi District Alwar for offence under Section 363 IPC. 4. Learned counsel for the petitioners Mr. Shahjahan Khan submits that the allegations in FIR against the present petitioners are that petitioners enticed away the prosecutrix Bilkis who is minor while as per Adhaar Card of prosecutrix, Date of Birth of prosecutrix is 19.05.1995, therefore, she is more than 21 years old. Further she is pregnant at advance stage and contacted Nikah with petitioner No. 1 with her sweet will and wants to live with petitioner No. 1 as she deposed before learned Additional Chief Judicial Magistrate, Bhiwadi. He submits that from the statement of prosecutrix no offence prima facie is made out against the present petitioners. 5. Mr. R.R. Goyal learned counsel for the respondent submits that the Date of Birth of prosecutrix as per school record is 15.10.1999, therefore, on the date of incident i.e. 01.02.2016 her age was below 18 years, as such she is minor. Further petitioner No. 1 is already married with Ms. Jamshida having one son, therefore, Nikah of petitioner No. 1 and prosecutrix is Batil and consent of prosecutrix is of no relevance. 6. Learned PP submits that since prosecutrix in her statement clearly stated that petitioner No. 1 contacted Nikah with her and she is pregnant by him, therefore, consent of minor is of no consequence and on the aforesaid grounds FIR cannot be quashed. 7. Heard. 8. In the case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., 1992 Suppl (1) SCC 335 the Hon'ble Supreme court have framed seven grounds on the basis of which the FIR can be quashed. The Hon'ble Supreme Court, in para No. 105, observed as under:- "105. 7. Heard. 8. In the case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., 1992 Suppl (1) SCC 335 the Hon'ble Supreme court have framed seven grounds on the basis of which the FIR can be quashed. The Hon'ble Supreme Court, in para No. 105, observed as under:- "105. 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 extra-ordinary 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 power 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 cognizable 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 cognizable offence but constitute only a non-cognizable 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." 9. In the case in hand since there is dispute regarding the age of prosecutrix. From the perusal of case diary, it reveals that the birth certificate of prosecutrix Bilkis was obtained on 19.02.2016 and Date of Birth was got registered on 09.02.2016 by her father on the basis of affidavit dated 09.02.2016 wherein Date of Birth of prosecutrix is shown as 15.10.1999. Further counsel for respondent No. 2 Mr. R.R. Goyal and respondent No. 2 himself clearly conceded that there is no relation of prosecutrix at Pangaltu (Palwal), registration of Date of Birth on 09.02.2016 on the basis of affidavit and the certificate issued by the school of Pangaltu (Palwal) by which it was shown that prosecutrix sought admission in class First on 03.04.2006. A student of class First whose no relation is there at Pangaltu (Palwal) seeking admission at School situated at Palwal is matter of investigation, therefore, in what circumstances the Date of Birth was registered on 09.02.2016 and in what circumstance the admission was sought at Pangaltu (Palwal) whether she studied there or not is a matter of investigation. 10. However, on the aforesaid grounds, FIR cannot be quashed. As none of the aforesaid ground exist for quashing FIR, therefore, this misc. petition devoids merit which is hereby dismissed. 11. Stay application also stands dismissed.