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Madhya Pradesh High Court · body

2016 DIGILAW 347 (MP)

Manoj Raikwar v. State of M. P.

2016-04-29

N.K.GUPTA

body2016
ORDER 1. The applicant has preferred the present petition under section 482 of CrPC to quash FIR registered at Crime No. 44/2016 for offence under sections 363 and 366 of IPC. 2. Prosecution case, in short is that one Rafik Khan father of the prosecutrix had lodged a missing report at police station Datia that his daughter aged 18 years left the house on 3.12.2015 and she was missing. After enquiry, it was found that the prosecutrix was residing with the applicant as a wife though no valid marriage is found to be performed. During pendency of the investigation, a habeas corpus petition was filed and in that Writ Petition No.1281/2016 [ 2016 (II) MPWN 29 ], the prosecutrix appeared before the Single Bench of this Court on 6.4.2016 and stated that she went with the applicant on her own will and she was residing with the applicant. 3. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that most of the facts are admitted between the parties. Firstly, that the prosecutrix went herself and at present she is residing with the applicant though there is no valid marriage certificate shown by the parties. It is also admitted that in the mark-sheet of High School examination date of birth of the prosecutrix is mentioned to be 13.1.1997 and according to that entry she was above 18 years of age at the time of incident. 4. For quashing of the FIR, it is for the applicant to show that no offence is made out against the applicant prima facie and he is being harassed unnecessarily to face the prosecution. 5. In the present case, it is admitted that the prosecutrix herself went with the applicant and it appears that she is residing with the applicant. However, there is a dispute between the parties relating to date of birth of the prosecutrix. According to mark sheet of High School examination, date of birth of the prosecutrix is 13.1.1997, whereas, the complainant has filed some documents to show that the date of birth of the prosecutrix is 13.10.1998. However, there is a dispute between the parties relating to date of birth of the prosecutrix. According to mark sheet of High School examination, date of birth of the prosecutrix is 13.1.1997, whereas, the complainant has filed some documents to show that the date of birth of the prosecutrix is 13.10.1998. As objected by learned counsel for the applicant, it would be apparent that date of birth certificate Annexure A-1 is issued on the basis of the date provided by the complainant on 11.12.2015 i.e. after the incident and, therefore, this document may be considered as prepared document after the incident. Similarly, Annexure A-2 copy of the register relating to birth of the prosecutrix is filed, however, it is informed that there is a younger sister of the prosecutrix and, therefore, possibility cannot be ruled out that particular entry relates to the younger sister of the prosecutrix. However, the complainant has filed a document Annexure A-4 Nikahnama of the complainant and his wife and according to that Nikahnama the marriage of the complainant took place on 2.5.1997 and if it is correct then there was no possibility that the prosecutrix could have born on 13.1.1997. 6. Learned counsel for the applicant submits that an enquiry may be directed to get the Nikahnama verified as to whether it is genuine or forged document. 7. Under these circumstances, there is a dispute that whether the prosecutrix born prior to marriage of her father or not and, therefore, at present it is not required for this Court to decide that according to the provisions of rule 12 of Rules made under the Juvenile Justice (Care and Protection of Children) Act that the age of the prosecutrix is above 18 years. When there is a doubt about some facts and there is possibility that the offence is made out against the applicant then without complete investigation, such FIR cannot be quashed. 8. Under these circumstances, at present it cannot be said that no alleged offence is made out against the applicant. It is true that the prosecutrix is a consenting party, but if she was below 18 years of age at the time of incident, then prima facie offence under section 363 of IPC shall be made out and, therefore, it is not a good case in which registration of crime against the applicant may be quashed. 9. It is true that the prosecutrix is a consenting party, but if she was below 18 years of age at the time of incident, then prima facie offence under section 363 of IPC shall be made out and, therefore, it is not a good case in which registration of crime against the applicant may be quashed. 9. On the basis of aforesaid discussions, this petition under section 482 of CrPC filed by the applicant Manoj Raikwar is hereby dismissed at motion stage. 10. However, it is made clear that if investigating officer finds that the prosecutrix was above 18 years of age at the time of incident then he would be free to file a report under section 169 of CrPC. Pramod Pachouri for applicant; Mohd. Irshad, Panel Lawyer for respondent No.1/State; Pratip Visoriya for complainant.