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2016 DIGILAW 3557 (ALL)

DILEEP KUMAR v. STATE OF U. P.

2016-10-24

VIJAY LAXMI

body2016
ORDER : Vijay Laxmi, J. Heard learned counsel for the petitioner, learned A.G.A. and gone through the record. The petitioner Dileep Kumar has filed the present petition under section 482 Cr.P.C with prayer of quashing the impugned Charge sheet 09.08.2007 in Case Crime No.203 of 2007, case No.405 of 2010 (Old case no.4334 of 2007) under Sections 363/366 and 506 of the Indian Penal Code, Police Station Kursi, district Barabanki. 2. Before any direction is issued by this Court in this case, it is pertinent to point out that case crime No.230 of 2007 was registered by the father of the petitioner that prosecutrix was taken and enticed away by Dileep Kumar on 31.05.2007 at 15.45 hrs when she along with her aunt was returning to her home from village Pttan Kheda. 3. It is alleged by the petitioner that Vandana Bharti, the respondent No.3 had gone with and got married to Dileep Kumar, petitioner of her own free will and accord. The marriage, however, has not been accepted by respondent No.2 who initiated Criminal proceedings, bearing Case Crime No. 405 of 2010 (Old no.4334 of 2007) under Sections 363/366 and 506 of the Indian Penal Code (Annexure No. 2). 4. The prosecutrix, respondent No.3 remained present in Court on dated 23.08.2016 and 04.10.2016 and filed short counter affidavit on 26.09.2016 stating that she was major on the date of the incident and she was a consenting party who had gone with the petitioner and entered into matrimonial alliance with him out of her free will. She further stated that they were residing together in Lucknow and leading peaceful matrimonial life. Four children were born to them out of said wedlock, but unfortunately only one is alive who is now 04 years of age. The petitioner claimed that no offence under Section 363/366 and 506 of the Indian Penal Code, was made out. 5. It is submitted by learned Counsel for the petitioner that father of the prosecutrix angrily lodged the FIR who was not happy with this marriage. The incident occured on 06.03.2007 while the FIR was lodged on 31.05.2007 through an application u/s 156(3) Cr.P.C. vide Case Crime No.203 of 2007. The case of kidnapping and abduction is totally false. The Investigating Officer has now filed charge-sheet against the petitioner without any justification. The petitioner had Right to live according to his sweet will. The incident occured on 06.03.2007 while the FIR was lodged on 31.05.2007 through an application u/s 156(3) Cr.P.C. vide Case Crime No.203 of 2007. The case of kidnapping and abduction is totally false. The Investigating Officer has now filed charge-sheet against the petitioner without any justification. The petitioner had Right to live according to his sweet will. The criminal proceeding against the petitioner are unwarranted and are liable to be quashed. 6. The State Counsel opposed the contention of the petitioner on the ground that as per the F.I.R. the girl was a minor. The notice was personally served on the respondent No.2 who did not appear before the Court nor contested his case. 7. The petitioner also produced the copy of her affidavit dated 01.08.2016, Annexure No.-3 in which she stated that she was major on the date of incident and she was a consenting party. No legally tenable rebuttal has been given to disregard the age of the girl. Thus the girl is found to be major who did not support the F.I.R. Version. 8. Petitioner is accused of committing an offence under Sections 363/366 and 506 of the Indian Penal Code. Section 363 of the Indian Penal Code provides that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision. 9. "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." 10. 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." 10. 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. 11. 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. 12. In the peculiar facts and circumstances of this case, the Court has minutely examined the facts that have emerged on investigation of the case. There is sufficient material before me to show that prosecutrix apparently has attained the age of discretion, as also age of majority on the date of the incident. In S. Varadarajan v. State of Madras reported in : AIR 1965 SC 942 the Apex Court pointed out the distinction between an act of elopement and act of taking or enticing away a woman below 18 years of age from her lawful guardianship. The Court observed that '...where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person, in such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is 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.' 13. Something more has to be shown in a case of this kind and that is 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.' 13. Somewhat similar facts came up for consideration before the Hon'ble Supreme Court of India in, Juhi Devi v. State of Bihar and Others reported in (2005) 13 SCC 376 , where Hon'ble Supreme Court observed that prosecutrix who has attained the age of discretion, has a right to enjoy her liberties by virtue of constitutional guarantee. The relevant para is quoted below :- "2. The petitioner herein is alleged to have married another person of her age and the 5th respondent herein, the father of the petitioner, objected to the said marriage. It seems that the petitioner had eloped with that person and the father of the petitioner-5th respondent, has filed a complaint and the petitioner was produced before the C.J.M., Patna. The petitioner claims that she was major and voluntarily left with her husband. The father of petitioner alleged that the petitioner was a minor and the question of age was referred to a Medical Board. The Medical Board opined that as on 17.05.2003, the petitioner must have been aged between 16 and 17 years. However, the father of the petitioner produced two certificates before the Revisional Court and contended that her date of birth is 12.10.1985 and she has not attained majority. However, the medical report shows that she must have been aged more than 16 years, even on 17.05.2003. Having regard to these facts, we are of the view that she must have attained majority and her stay at the remand home would not be in the interest of justice and we think that her continued stay at the remand home would be detrimental and she would be in a better environment by living with the person whom she had allegedly married. [Emphasised by us] 14. A Division Bench of this Court in Smt. Reena v. State of U.P. and Others (Habeas Corpus Writ Petition No.10180 of 2012) decided on 24.5.2012 observed that in pure and simple case of elopement of petitioner/prosecutrix it is to be seen that her right to enjoy her liberties by virtue of the constitutional guarantees are not curtailed or encroached upon. A Division Bench of this Court in Smt. Reena v. State of U.P. and Others (Habeas Corpus Writ Petition No.10180 of 2012) decided on 24.5.2012 observed that in pure and simple case of elopement of petitioner/prosecutrix it is to be seen that her right to enjoy her liberties by virtue of the constitutional guarantees are not curtailed or encroached upon. The relevant paragraphs of the judgment are quoted below:- We find from facts of the case that it was a pure and simple case of elopement of petitioner, Smt. Reena with Rabdullah and the petitioner, thereafter went straight away to his house from where she appears recovered. There was some dispute in respect of the age of the girl but we find from argument appearing at page 20 of the present petition that the Chief Medical Officer, Maharajganj had assessed her 18 years of age. Thus, the lady was undisputedly above 18 years of age, if we add three years to the medically assessed age. In our considered view in case of being a conflict between the age recorded in any school document and that assessed by the doctor then only for the present purposes, the court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific tests to assess the age of a victim. This is necessary as liberty of a person has to be protected. No person could be deprived of his liberty unless reasonable procedure has been adopted. Medical opinion on age may not be exact, but it is generally acceptance and it is based on scientific method of assessing the age. As such, in spite of there being some sort of margin in assessing the age and actual age, there could be chances that the assessed age is almost exact. We have already noted that the personal liberty of a person should be paramount consideration in such cases and keeping that in view and for protecting the personal liberty of a person, the court should lean towards considering the medical age than to consider the age which is recorded in school documents. Besides, there is no dispute in the fact that the petitioner, Smt. Reena had eloped with Rabdullah on 3-3-2011 and had wet into his house and was living there. Besides, there is no dispute in the fact that the petitioner, Smt. Reena had eloped with Rabdullah on 3-3-2011 and had wet into his house and was living there. ...Under the present set of facts, there could not be any doubt that it is a simple and pure case of elopement and as such no offence or offences could be said to be constituted under the admitted facts. ... There is no age, as regards the personal liberty of a person. Anyone who is born as a human being and who is found living in India even if he is not an Indian, has a right to enjoy his or her liberties by virtue of the constitutional guarantees. Any order which curtails or encroaches upon the liberties of such a person and has always to be held falling short of the constitution requirements and safeguards and, as such, we have to struck down the same in exercise of the powers Under Article 226 of the Constitution of India. [Emphasised by us] 15. In the instant case, the point for consideration is whether husband of the petitioner No.-1 has committed offence in context of the victim (petitioner No.1) or not. It will be appropriate here to mention the judgement dt. 23.07.2015 of this Court in Writ Petition No. 3519(MB) of 2015 Shaheen Parveen and Another v. State of U.P. through Principal Secretary, Home Department, and Others where this Court observed that 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. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation. In this case the Charge sheet under Sections 363/366 of the Indian Penal Code, was quashed where the prosecutrix was found to have attained the age of discretion and was just below 17 years of age. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation. In this case the Charge sheet under Sections 363/366 of the Indian Penal Code, was quashed where the prosecutrix was found to have attained the age of discretion and was just below 17 years of age. The prosecutrix gave the statement that she was neither kidnapped nor abducted who went in the company of the accused, willingly and knowingly. She has been living with petitioner No. 2 as his wife and was an expecting mother carrying a pregnancy of 31 weeks. This Court quashed the Charge sheet observing that substantial justice cannot be sacrificed at the altar of technicality. The relevant paragraphs are quoted below:- "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. 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. 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. 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. 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. 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. 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." [Emphasised by us] 16. Several instances are coming to our knowledge in which parent/parents/relations of a girl do not accept marriage of choice of their daughter, on account of different reasons, be it the caste, financial conditions, social status or religion. Although, the girl elopes with the boy voluntarily, however, criminal proceedings are initiated with allegation of abduction, kidnapping or inducing the girl to get married. In most of such cases the complainant takes a ground that his daughter is a minor. This Court cannot ignore or disregard the matrimonial life of the prosecutrix and petitioner, welfare of their children, the wastege of considerable number of man hours of the courts particularly when no useful purpose would be served and the entire exercise of trial would be in futility. 17. In the facts and circumstances of the present case, it is evident that the victim, respondent No. 3 was major on the date of incident. respondent No. 3, the victim in her short counter affidavit has clearly demonstrated that it was she who had gone of her free will and accord and got married to petitioner willingly and presently having one child out of their wedlock. It was a consensual act on the part of respondent No. 3 all through. respondent No. 3, the victim in her short counter affidavit has clearly demonstrated that it was she who had gone of her free will and accord and got married to petitioner willingly and presently having one child out of their wedlock. It was a consensual act on the part of respondent No. 3 all through. Such clear stand of the victim makes it evident that petitioner cannot be attributed with for coercing petitioner, inducing or kidnapping or abducting her in commission of offence, as alleged. The Investigating Officer also appeared before this Court in person but Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of petitioner so as to conclude that offence has been committed by him. It is submitted that the Charge sheet 09.08.2007 could be challenged in 2016 since they had no knowledge of said criminal proceedings who were escaping from their home due to threat given by respondent No.2 and living here and there. As soon as they came to know about it, this petition was filed. Under such circumstances, the Court is required to see that the most cherished right of life and personal liberty of the petitioners as guaranteed under Article 21 of the Constitution of India are to be respected or else the order would be held falling short of the constitutional requirements and safeguards. 18. In view of above, petitioner 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 and 506 I.P.C. 19. In the above noted facts and circumstances, I am of the view that ends of justice would be served if the petition is allowed. 20. The writ petition is allowed. Accordingly, Charge sheet 09.08.2007 in Case Crime No.203 of 2007, case No.405 of 2010 (Old case no.4334 of 2007) under Sections 363/366 and 506 of the Indian Penal Code, Police Station Kursi, district Barabanki and all consequent proceedings are hereby quashed. Let a copy of this order be forwarded to Senior Superintendent of Police, Barabanki.