Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 958 (MP)

Raj Kumar Choudhary v. State Of M. P.

2016-10-24

H.P.SINGH

body2016
ORDER : This petition under section 482 of Criminal Procedure Code, has been filed by the applicant for quashing the First Information Report, in respect of Crime No. 273/2012 registered by police of Police Station Bhalumada, District Anooppur, against the applicant for offences punishable under sections 363 and 366 of the Indian Penal Code (hereinafter referred to as the Indian Penal Code for short). 2. Briefly stated, the case of prosecution is that on 11-10-2012, complainant lodged a Missing Report No. 21/2012 that his daughter, prosecutrix, aged more than 18 years, is missing. It was suspected that applicant had taken away the prosecutrix from her guardianship. The applicant got married with the prosecutrix, against the wish of her parents and other family members. The father of prosecutrix lodged a missing report at the police station. During investigation, Crime No. 273/2012 has been registered against the applicant for the aforesaid offences and statements of Jemidas Choudhary, Janki Bai sister-in-law, Tokamdas and Chetan being brothers of prosecutrix, were recorded. On the basis of statements of brothers of prosecutrix, namely, Tikandas and Chetandas, it was revealed that applicant Rajkumar Choudhary had taken away the prosecutrix by alluring her. Thereafter, police has recovered the prosecutrix and registered the offences under sections 363 and 366 of Indian Penal Code against the present applicant. 3. Learned counsel for the applicant has submitted that investigation is complete and charge-sheet has already been filed in this case. She herself had sworn an affidavit stating that she on her own-will accompanied the applicant, voluntarily, fell in love, got married the applicant and they are living as husband and wife for the last six months without any coercion. Learned counsel for the applicant further submitted that according to the school record the date of birth of the prosecutrix i.e. 15.4.1994, she was major on the date when she left her parental home. Learned counsel for the applicant also submits that if the impugned FIR is not quashed and applicant is taken in custody and prosecuted then in that circumstance, her life be destroyed within a very shorter period from the date of marriage and in that situation, she has to face the dire consequences and their future shall become in dark and prayed to allow this petition with appropriate direction to quash the FIR. 4. 4. Per contra, learned Panel Lawyer appearing on behalf of respondent-State and learned counsel for the complainant oppose the application of the applicant and submit that on the basis of information given by father of prosecutrix, a missing report was registered against the applicant for offence punishable under section 363 and 366 of Indian Penal Code. It is further argued that the applicant took away the prosecutrix without the consent of her natural guardians, the parents, and subsequent to such incident, the applicant got married with the prosecutrix. Therefore, the applicant has committed the offence as aforesaid. 5. Keeping in view the aforesaid arguments, I have carefully gone through the papers placed on the record along with the averments of the petition as well as the affidavits of the parties so also the aforesaid cases cited on behalf of the applicant. Learned counsel for the applicant has relied upon the decision rendered in the case of Deshraj vs. State of M. P. , I.L.R. (2014) M.P. 1436 and Sangita Rani alias Mehnaz Jahan vs. State of Uttar Pradesh, (1992) Suppl. SCC 715, and stated no fruitful purpose would be served if the impugned FIR is not quashed to protect their life. Before giving the findings with respect of the case at hand, I would like to reproduce the concerned abstract of the aforesaid decision cited by the applicant’s counsel. In the matter of Mohan Mahali and another vs. State of U.P. and another, 2006 Cr.LJ. 4287, the Allahabad High Court in para 8 has held as under :— “8. The learned counsel for the applicant stated in the Court that both Shanker Mahali and Anita are residing with the accused applicants as their son and daughter-in-law and children have also been born out of this wedlock during the period of last 5½ years. Under these circumstances when the parties have settled the entire dispute amicably and they are residing together with their progeny happily and when the so-called minor girl Anita allegedly aged 15 years in 2001 does not want to say anything against the accused persons even after obtaining majority, no fruitful purpose is going to be served by pursuing the case further under sections 363/366 of the Indian Penal Code and it is in the interest of justice to drop those proceedings. 9. 9. The application under section 482, Criminal Procedure Code, is therefore, allowed and the proceedings of criminal Case No. 1298/2005 State Vs. Mohan Mahali under section 363 and 366, Indian Penal Code pending in the Court of Special Chief Judicial Magistrate Varanasi are hereby quashed.” In the matter of Mrs. Shania Rahman Choudhary vs. State of Assam and others, 2009 Cr.LJ. 1930, the Gauhati High Court has held as under :— “11. In view of the statement made by the petitioner before us today that she voluntarily got married to Nazim Ahmed leaves us with one option that her right to live wherever she likes cannot be interfered with and there is absolutely no reason to allow Hatigaon P.S. in Case No. 105 of 2008 under section 366/34, Indian Penal Code pending against Md. Nazimuddin and others, to continue any more to multiply litigations. 12. In the facts and circumstances, we deem it appropriate that the FIR filed in connection with kidnapping of the petitioner, which was registered as Hatigaon P.S. Case No. 105/08 is required to be quashed and accordingly it is quashed.” In the matter of Krishna Kumar (supra), the Allahabad High Court has held as under :- “5. The criminal case under section 363/366, Indian Penal Code arising out of the FIR dated 3-3-1993 and the Hebeas Corpus Petition No. 13325 of 1993 can be conveniently decided together only on the question that Rachna Agarwal is whether a major lady and she is under illegal detention of any other person specifically illegal detention by Krishna Kumar. We consider it necessary and appropriate to record her statements in Chamber after giving her more than 2 hours’ time for composing herself so that she may make a free independent statement before the Court. We have recorded her statement in presence of the learned counsel for the parties. The father of Rachna Agarwal, namely, Ram Autar Agarwal appeared before us and identified that the girl Rachna Agarwal appearing before this Court is the same girl and his daughter. We are, thus, satisfied that the same person makes the statement before us. In the statement Rachna Agarwal categorically stated that she is major, aged about 22 years. She stated that she left her parental home out of her free will without any coercion, allurement, inducement or deception from any one. We are, thus, satisfied that the same person makes the statement before us. In the statement Rachna Agarwal categorically stated that she is major, aged about 22 years. She stated that she left her parental home out of her free will without any coercion, allurement, inducement or deception from any one. She stated to have left her parental home on 22nd of February, 1993 with Krishna Kumar, whom she stated to have married according to Hindu rites. An application for registering the marriage was also submitted before the Registrar Hindu Marriages Act and an application showing the entertainment of the application for registration of the marriage under Hindu Marriage Act is on record. By supplementary affidavit, it has been shown that the marriage was also registered on 22-2-1993. After recording the statement of Rachana Agarwal, we are satisfied that she is a major girl, she is not under any type of illegal detention, she also stated that she is happily staying with Krishna Kumar and parents-in-law at her husband’s place. The family members of her husband are treating her with all love, affection and respect. In these circumstances, we consider it that no useful purpose would be served if investigation is allowed to continue arising out of the FIR noted above. The Supreme Court in similar circumstances in 1992 SCC (Cri) 391 Sangita Rani (Smt) alias Mehraj Jahan vs. State of U.P. quashed the FIR and investigation. We consider it a fit case in which the FIR dated 3.3.93 Crime No. 109 of 1993 under section 363/366, Indian Penal Code, P.S. Khurja Nagar Dist. Bulandshahar is liable to be quashed against all the accused persons, named in the FIR. No further investigation is further called for.” 6. Considering the submissions made by learned counsel for the parties and perusal of records, it is amply clear that the prosecutrix accompanied voluntarily with the applicant and she was major at the time of incident as per the school record and got married with him as stated above, and now they are living happily with each other. Considering the submissions made by learned counsel for the parties and perusal of records, it is amply clear that the prosecutrix accompanied voluntarily with the applicant and she was major at the time of incident as per the school record and got married with him as stated above, and now they are living happily with each other. But, due to aforesaid missing person report made by her father, on which impugned crime has been registered by the police for the offences under sections 363 and 366 of the Indian Penal Code, their future have come in difficulty and if the FIR is not quashed as against the applicant, then their future would be spoiled. In these circumstances, it appears that the present petition appears to be bona fide, genuine and in order to save their life, this Court has to pass the appropriate order. 7. True it is that on the date of incident when the prosecutrix was major, accompanied the applicant with her own will and got married with the applicant voluntarily, then the applicant cannot be held guilty for the offence. It is settled legal position that "when the applicant himself did not visit and took away the prosecutrix with him from lawful custody of her parents then he could not be deemed to be the accused for the offence of kidnapping. In view of the aforesaid decision, I find sufficient reason to quash the impugned FIR in the present case. 8. It is deemed that the ingredients of the alleged offence are made out on the date of lodging the missing person report of the prosecutrix by her father. But, in order to save the life of applicant as well as prosecutrix, this Court has to pass the appropriate order within the four corners and frame work of the law. I would like to mention here that even on holding the investigation of the impugned case, in view of the aforesaid averments sworn in by the prosecutrix in the affidavit, no fruitful purpose would be served and, in any case if the FIR is not quashed with respect to the aforesaid offence then, in view of the available circumstances, there is no change to hold guilty to the applicant for the same. For the sake of arguments, if it is deemed that the applicant is held guilty in the trial, then in the circumstance, the life of prosecutrix shall be destroyed, because her parents are not cooperating her as they were against the aforesaid love affair and marriage of applicant with prosecutrix, which led to lodging of impugned FIR. Therefore, I am of the considered view that if FIR with regard to Crime No. 273/2012 registered at Police Station Bhalumada, District Anooppur is not quashed and prosecution agency is permitted to proceed further and file charge-sheet in the matter to hold the trial against the applicant, then there is every possibility to destroy the life of the applicant and prosecutrix. Thus, I am of the view that under the inherent powers of this Court enumerated under section 482 of Criminal Procedure Code, the impugned FIR, in order to secure justice with the parties should be quashed. 9. In the result, this application is allowed and impugned FIR registered in connection with Crime No. 273/2012 at Police Station Bhalumada, District Anooppur, against the applicant for the offence under sections 363 and 366 of Indian Penal Code, is hereby quashed. 10. Petition stands disposed of as indicated above.