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2016 DIGILAW 2948 (ALL)

VISHAL JAISWAL v. STATE OF U. P.

2016-08-26

AJAI LAMBA, VIJAY LAXMI

body2016
JUDGMENT By the Court.—The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report, lodged as crime No. 60 of 2016 under Sections 363, 366 I.P.C., police station Mankapur, district Gonda. 2. Order dated 16.5.2016 notices the gist of the issue raised by the petitioners. The order reads as under : “1. This petition seeks issuance of a writ in the nature of certiorari quashing Case Crime No. 60/2016 under Sections 363, 366 I.P.C., P.S. Mankapur, district Gonda (Annexure-1). 2. Learned counsel appearing for the petitioners has argued that petitioner No. 2 willingly got married to petitioner No. 1. Evidence of marriage has been placed on record as Annexure-2. The petitioner No. 2 has not been kidnapped. Offence has not been committed. Respondent No. 4, however, has not accepted the marriage of the petitioners, therefore, impugned criminal proceedings have been initiated in abuse of process of the law and process of the Court. 3. Issue notice to respondent No. 4, returnable on 21.7.2016. 4. Till the next date of listing, petitioners shall not be taken in custody. Petitioners are directed to join investigation. 5. The Investigating Officer is directed to ensure that statement of petitioner No. 2 is recorded under Section 164 CrPC and counter-affidavit is filed. 6. List on 21.7.2016.” 3. Short counter affidvit has been filed on behalf of the State in Court, which is taken on record. 4. Sri Dinesh Kumar Shukla, Advocate has put in appearance for respondent No. 4 and has filed his Power of Attorney on behalf of the complainant, which is taken on record. 5. Learned counsel for the complainant has opposed the petition on the ground that the petitioner No. 2 is a minor and therefore offence under Section 363 I.P.C. has been committed. It has been pleaded that the petition is liable to be dismissed. 6. An affidavit has been filed on behalf of the investigating agency/prosecution bringing on record the facts unearthed in the course of investigation viz. Statement of the prosecutrix under Section 164 CrPC (Annexure SCA-1), and medical report of the prosecutrix (Annexure SCA-2). The case of the prosecution as pleaded is that offence has been committed because the prosectrux was a minor on the date of the incident, as per her testimonials. It is, however, the admitted case of the prosecution that medical age of the prosecturix is nineteen years (approx.) 7. The case of the prosecution as pleaded is that offence has been committed because the prosectrux was a minor on the date of the incident, as per her testimonials. It is, however, the admitted case of the prosecution that medical age of the prosecturix is nineteen years (approx.) 7. Learned counsel for the petitioners, however, contends that considering the radiological age (19 years) of the victim of offence/petitioner No. 2, it appears that petitioner 2 has attained the age of majority. The petitioner No. 2 in her statement recorded under Section 164 Cr.P.C. has made it evident that she has not been kidnapped. Under the circumstances, the case of the petitioners is covered by judgment dated 23.7.2015, rendered by a Division Bench of this Court, of which one of us (Ajai Lamba, J) was a member in Writ Petition No. 3519(M/B) of 2015 Shaheen Parveen and another v. State of U.P. and others. 8. Before adverting to the facts and circumstances of the case to consider whether the impugned proceedings are liable to be quashed or not, we would like to refer to the law laid down by the Hon’ble Supreme Court of India. Hon’ble Supreme Court of India in State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 , has laid down certain conditions that may be considered by the Court for quashing criminal proceedings. The following has been held in Para 108 : “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. 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. 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. We would like to refer to another judgment rendered by Hon’ble Supreme Court of India on the issue of quashing of criminal proceedings viz. Rajiv Thapar and others v. Madan Lal Kapoor, (2013)3 SCC 330 . Shorn of the unnecessary details, the following are the facts and circumstances considered by the Hon’ble Court while allowing the appeal and setting aside the criminal proceedings pending against the accused at the stage of framing of charge : (a) One Dr. Rajiv Thapar and others v. Madan Lal Kapoor, (2013)3 SCC 330 . Shorn of the unnecessary details, the following are the facts and circumstances considered by the Hon’ble Court while allowing the appeal and setting aside the criminal proceedings pending against the accused at the stage of framing of charge : (a) One Dr. Monica Thapar married to Rajiv Thapar fell ill and was admitted in a hospital. Dr. Monica Thapar was diagnosed with a hole in her heart. She suffered a massive heart attack which proved fatal. Madan Lal Kapoor (deceased’s father) filed a complaint and insisted that the deceased had been poisoned. Based on the complaint, a medical board was constituted which opined that the death of Dr. Monica Thapar was due to cardiac de-compensation. Madan Lal Kapoor, however, persisted with the allegation that Mrs. Monica had died under mysterious circumstances, within one year of her marriage and had been mentally and physically tortured on account of demand for dowry which had led to her illness and in that condition, she had been administered some poisonous substance. On the other hand, the post-mortem report and forensic laboratory report indicated the death to be on account of natural causes/natural death. (b) Madan Lal Kapoor filed a number of complaints on the basis of suspicion. Since the complaints did not fetch any fruitful result, he filed a criminal complaint before Metropolitan Magistrate, Delhi with the allegation of unnatural death of Dr. Monica Thapar by poisoning. It appears that the complainant himself was uncertain about the manner in which his daughter had died, i.e. by poisoning or by strangulation. (c) Based on the statements given in prosecution of the criminal complaint by Madan Lal Kapoor, the complainant and his son Ravi Kapoor, the Metropolitan Magistrate, Delhi summoned the accused. The Metropolitan Magistrate, based on the evidence, formulated an opinion that there was sufficient material to proceed against the accused under Sections 498-A, 406, 304-B read with Section 120-B I.P.C. The case was committed to the Court of Sessions. (d) Finally, after the order of summoning had been challenged in the High Court and a bout of litigation, the matter was considered by the Court of Sessions. (d) Finally, after the order of summoning had been challenged in the High Court and a bout of litigation, the matter was considered by the Court of Sessions. The Additional Sessions Judge found that provisions of Section 202 CrPC had not been fully complied with and some evidences had not been brought on record, in so much as the post-mortem report, inquest report and some correspondence were not available for consideration of the Court. The Additional Sessions Judge summoned the Doctors who were members of the Medical Board that had conducted post-mortem examination and sought clarification in regard to allegations of strangulation. The Additional Sessions Judge, Delhi heard arguments on charge and on evaluation of the complaint and various evidences concluded that no prima facie case was made out against the accused, either under Section 304-B I.P.C. or under Section 498-A I.P.C. Accordingly, the accused were discharged. (e) Dissatisfied with the order of discharge, Madan Lal Kapoor filed criminal revision petition before the High Court. The High Court of Judicature at Delhi set aside the order of discharge passed by the Additional Sessions Judge dated 8.5.2008. Order dated 8.5.2008 was challenged before the Hon’ble Supreme Court of India by the accused. 10. The above noted skeleton of facts were considered by the Hon’ble Supreme Court of India in their minutest detail in reference to the evidences, documents and statements brought on record, not only in the Court of Additional Sessions Judge who passed the order of discharge, but also the Metropolitan Magistrate. Hon’ble Supreme Court of India set aside the order passed by the High Court of Judicature at Delhi. Criminal proceedings against the accused were accordingly set aside and the appeal was allowed. The following has been held by the Hon’ble Supreme Court of India in the relevant portion of the judgment : “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecutions/complainants case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.: (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” (Emphasised by us) X X X X X 38. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratorys report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject-matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject-matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings. 39. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana and others v. Bhajan Lal and others, 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. 40. There is yet another reason emerging from the facts of the case which needed to be kept in mind. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. 40. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above. 41. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.” (Emphasised by us) 11. On consideration of the law laid down by the Hon’ble Supreme Court of India in Rajiv Thapar’s case (supra), it becomes clear that to invoke jurisdiction for quashing criminal proceedings, the High Court has to be fully satisfied that the material produced by the accused is such, that would lead to the conclusion that his /their defence is based on sound, reasonable and indisputable material; the material produced is such, as would rule out and disprove the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this, the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power to quash such criminal proceedings, for that would prevent abuse of process of the Court and secure the ends of justice. 12. Hon’ble Supreme Court of India on the basis of above given parameters delineated certain steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court to quash criminal proceedings. The steps are contained in the extracted portion of the judgment herein-above and need not be repeated. 13. Perusal of the judgment also establishes that the High Court while considering quashing of proceedings has the jurisdiction to consider the facts and circumstances as they emanate from the evidences, material, the statements, medical reports, correspondence between the parties etc. The purpose appears to be to secure ends of justice and prevent abuse of process of the Court. Spirit of the judgment is that High Court should consider whether judicial conscience of the High Court is persuaded by the material to consider quashing of the criminal proceedings. 14. In Bhajan Lal’s case (supra), seven categories of cases have been detailed. In case an impugned proceeding falls under any of the categories (which though are not exhaustive), the Court can consider quashing of the impugned criminal proceedings. 15. From the law extracted and discussed above, it follows that the petitioner accused so as to seek quashing of criminal proceedings can rely on the defence available with him. The material relied upon by the accused is required to be of sound, reasonable and indisputable quality. The material should be such as to rule out/disprove the assertions contained in the charges/accusations levelled against the accused. Further the material should be such which cannot justifiably be refuted by the prosecution/complainant. 16. It has been held that exercise of such power, besides doing justice to the accused, would save precious Court time because continuance of trial would not conclude in the conviction of the accused. 17. Further the material should be such which cannot justifiably be refuted by the prosecution/complainant. 16. It has been held that exercise of such power, besides doing justice to the accused, would save precious Court time because continuance of trial would not conclude in the conviction of the accused. 17. The criminal proceedings are rendered liable for quashing also if (a) the allegations, even if taken at their face value and accepted in entirety, do not prima facie constitute any offence; (b) where the allegations in impugned proceedings do not disclose a cognizable offence; (c) where uncontroverted allegations and evidence collected in support of the same do not disclose commission of an offence; (d) where the allegations made in the impugned proceedings are so absurd and improbable on the basis of which no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (e) where there is an express legal bar engrafted in any provision in the Code of Criminal Procedure or in the concerned Act (under which criminal proceeding has been instituted) to the institution and continuance of the proceedings; and (f) where a criminal proceeding has been initiated for mala fide reasons with ulterior motive for wreaking vengeance. 18. The criminal proceedings, in the considered opinion of this Court, also deserve to be quashed in case on consideration of material made available to the Court establishes that ingredients of the alleged offence (committed by the accused) are not satisfied. Such material may have been produced by the petitioner accused or might come through investigation in relevant aspects of the case. 19. The ingredients of offence under Sections 363, 366 I.P.C., in context of the relevant evidences, which are somewhat similar to the present case have been considered by this Court in Shaheen Parveen’s case (supra). The following has been held in relevant portion of the judgment : “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 following has been held in relevant portion of the judgment : “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. 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. X X X X X 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 in S. Varadarajan v. State of Madras, (1965)1 SCR 243 ). 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 CrPC 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 hereinabove. 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. 29. The stand of the Prosecuting Agency that the victim was a few months below age of majority when she joined the company of the accused/petitioner No. 2, and therefore offence has been committed, cannot be accepted if ground reality is taken into account. It has come on record that the prosecutrix is an expecting mother and is carrying a pregnancy of 31 weeks. Coupled with this fact is the statement of the prosecutrix wherein she has said that she was neither kidnapped nor abducted, rather has been living with petitioner No. 2 as his wife. It is the prosecutrix who went in the company of the accused, willingly, knowingly, and rather than the accused taking the prosecutrix out of the custody of the lawful guardian; the victim herself had eloped with petitioner No. 2. It is the prosecutrix who went in the company of the accused, willingly, knowingly, and rather than the accused taking the prosecutrix out of the custody of the lawful guardian; the victim herself had eloped with petitioner No. 2. In the considered opinion of the Court, substantial justice cannot be sacrificed at the altar of technicality, as is being concluded by the Investigating Agency. 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.” 20. We have considered the facts and circumstances of this case in context of the evidences collected in the course of the investigation in the light of the judgments rendered by the Hon’ble Supreme Court of India and this Court, portions from which have been extracted above. 21. Perusal of the document, annexure S.C.A. 1 i.e. statement of the victim of offence recorded under Section 164 Cr.P.C. shows that she has shown herself as 19 years of age. The victim of offence/petitioner No. 2 has given statement to the effect that she was given beatings by her father. She was forced to leave education. She also stated that she was given beatings as she was in love with Vishal. It has further been clarified that petitioner No. 2/the prosecutrix on 20th April, 2016 got married to Vishal and wants to live with Vishal. Petitioner No. 2 has further stated that she apprehends danger to her life at the hands of her parents. 22. Annexure SCA 2 is medical examination report of petitioner No. 2, according to which, age of petitioner No. 2 has been found to be 19 years. 23. When facts and circumstances of this case are considered in context of the law laid down by the Hon’ble Supreme Court of India in Bhajan Lal’s case (supra), portion of which has been extracted above, it becomes evident that the case of the petitioners falls under Sub Para 3 and Sub Para 7 of Para 108 extracted above and emphasised. 24. The investigating agency has already collected evidence in context of the most material witness/victim of offence, i.e. petitioner No. 2 by way of her statement recorded under Section 164 CrPC and her medical examination. 24. The investigating agency has already collected evidence in context of the most material witness/victim of offence, i.e. petitioner No. 2 by way of her statement recorded under Section 164 CrPC and her medical examination. Petitioner No. 2 has been found to have attained the age of majority, therefore, it is evident that ingredients of Section 363 I.P.C. are not satisfied, as discussed in detail in Shaheen Parveen’s case (supra). Petitioner No. 2 has given her statement under Section 164 CrPC to the effect that she has not been kidnapped. Under such circumstances, it becomes evident that Section 366 I.P.C. is not attracted to the facts of this case because ingredients of the said provision are also not satisfied. 25. We have taken into consideration the fact that petitioner No. 2, the kidnapee has approached this Court to say that she had not been kidnapped; rather is married to petitioner No. 1. Statement in the same terms has been given by the petitioner No. 2 in the course of investigation. Under such circumstances, it would be absurd to conclude that petitioner No. 2 had been kidnapped and offence in her context has been committed. In such circumstances, continuance of proceedings shall result in abuse of process of the Court and quashing of the proceedings shall rather secure the ends of justice. 26. The facts and circumstances of the case demonstrate that respondent No. 4 did not accept the marriage of the petitioners, therefore, in malicious action so as to wreak vengeance on the accused initiated impugned criminal proceedings in abuse of process of the law and abuse of process of the Court. In such circumstances also, the impugned proceedings are liable to be quashed. 27. In view of the above, the writ petition is allowed. First Information report dated 28.3.2016, bearing case crime No. 60 of 2016 under Sections 363, 366 I.P.C., police station Mankapur, district Gonda and consequent proceedings are hereby quashed. 28. Let copy of this order be forwarded to Superintendent of Police, Gonda and the concerned Magistrate, by Senior Registrar of this Court.