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2017 DIGILAW 539 (JK)

Sabah v. State of J&K

2017-08-04

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioners invoke inherent jurisdiction of this Court under section 561-A Cr.P.C. for quashing FIR No.47/2006 dated 10.04.2006 registered at Police Station Bahu Fort, Jammu under Section 366 RPC. 2. In the petition it has been stated that about three years back the petitioners fall in love with each other and convert their love affair into marital knot. In this regard petitioner No.1 on 15.04.2005 embraced Islam in accordance with Muslim law and also executed an affidavit. It is contended that petitioners have executed a Marriage Agreement on 15.04.2005 which was duly registered by Notary Public Jammu and after the execution of Marriage Agreement; the Nikah Ceremony was performed on 16.04.2005. It is further averred that since the solemnization of marriage the petitioners requested the parents of petitioner No.1 to allow them to perform their matrimonial obligations but they remained adamant, compelled the petitioners to take a decision so that they can lead their life according to their wishes as husband and wife. It is also contended that on 18.04.2006, the petitioners left Jammu and proceeded to Srinagar as all their efforts for reconciliation with the parents of petitioner No.1 failed and on the same day i.e 18.04.2006, the relatives of petitioner No.1 lodged an FIR with Police Station Bahu-Fort, Jammu under Section 366 RPC against petitioner No.2. 3. The petitioners are aggrieved of the FIR No. 47/2006 registered at Police Station Bahu-Fort, Jammu under Section 366 RPC against petitioner no.1 and seek its quashment on the following grounds: (a) That the petitioners are innocent persons and petitioner No.2 has not committed any offence under Section 366 RPC as they have married with their free consent in accordance with Muslim law. Both the petitioners are majors and are competent to decide their destiny and took a conscious decision to marry each other. The petitioner No.1 in a fit state of mind voluntarily contracted marriage with petitioner No.2 after embracing Islam. Since the petitioners have left Jammu voluntarily, the question of kidnapping does not arise at all. (b) That FIR No.47/2006 is an abuse of process of law as petitioner No.1 has not been kidnapped contrary to her wishes by petitioner No.2. As already submitted petitioner No.1 is a major and with her free consent petitioner No.1 embraced Islam and later performed Nikah on 16.04.2005. The accusations in the FIR are misconceived and contrary to the factual position. 4. As already submitted petitioner No.1 is a major and with her free consent petitioner No.1 embraced Islam and later performed Nikah on 16.04.2005. The accusations in the FIR are misconceived and contrary to the factual position. 4. Vide order dated 01.05.2006, this Court while entertaining the instant petition, admitted the petition, issued notice to the respondents for filing reply and in the meantime, stayed the operation of FIR No.47/2006 dated 10.04.2006 registered at Police Station Bahu For, Jammu under Section 366 RPC. 5. On 21.05.2007, respondents have filed the objections wherein it is averred that one Sh. Vikram Jeet S/o Sh. Hans Raj R/o Malik Market Jammu lodged a report on 18.04.2006 at Police Post Narwal Bala, Jammu stated therein that his sister namely Bindu Bala, who runs a Beauty Parlour at Malik Market has been kidnapped by petitioner No.2 and on the basis of that report an FIR No.47/2006 under Section 366 RPC has been registered at Police Station Bahu Fort, Jammu and investigation commenced. It shall not be out of place to mention here that petitioner No.1 is Hindu by religion whereas petitioner No.2 is a Muslim. Both the petitioners are governed by their personal laws regarding the matrimonial ties. Petitioner No.2 has miserably failed to project that under what provisions of law or statue did the conversion of petitioner No.1 took place not he has satisfied whether petitioner No.1 has converted her religion with her own free will without any fear, pressure or coercion. It is further contended that the statement of the kidnapped girl is yet to be recorded, the investigation of the case is yet to be completed but in the meantime the petitioners filed the present petition seeking quashment of aforesaid FIR and obtained an ex-parte interim direction to the effect “that until further orders, further investigation in FIR No.47/2006 registered with Police Station, Bahu Fort, Jammu shall remain stayed.” The allegations against petitioner No.2 are of very serious and heinous natures which require thorough investigation. Insofar as the contention regarding recording of statement under Section 164 CrPC is concerned, it has been held by various Courts that the statement of witness under Section 164 CrPC can be recorded only when a person is sponsored by the investigation agency. Insofar as the contention regarding recording of statement under Section 164 CrPC is concerned, it has been held by various Courts that the statement of witness under Section 164 CrPC can be recorded only when a person is sponsored by the investigation agency. When it is not sponsored by the investigating agency the concerned Magistrate should look to the Police Diary and give sufficient time for reflection and also ascertain the bona fide of the parties concerned. 6. Had there been any truth in the averments made in the petition, the petitioners would have joined the investigation and made available all such documents which support their claim pertaining to the factum of marriage, conversion and age of petitioner No.1. Petitioner No.2’s non-cooperation with the investigating agency clearly indicates that he is concealing certain material facts. Addedly, the respondents are very much concerned regarding the safety of petitioner No.1 who despite various efforts before the passing of interim directions by this Court could not be traced. Insofar the documents annexed by the petitioners are concerned, the credibility of the same is in serious dispute, as such, cannot be relied upon and the petitioners be put to strict proof of the same, therefore, respondents have prayed for dismissal of the petition in hand. 7. Heard learned counsel for the respondents and have perused the file. 8. Both the petitioners were major at the time of filing of this petition; petitioner No.1 was 23 years of age and petitioner no.2 was 32 years old. They are from different religion. Petitioner no.1 has embraced Islam and both then married with their free consent and will. Meanwhile parents of petitioner no.1 has lodged FIR no. 47/2006 under section 366 RPC against the petitioner no.2. 9. In case titled Lata Singh v State of UP reported in AIR 2006 SC 2522 , it is held as under:- “We have considered the above facts and have heard learned counsel for the petitioner and the learned counsel for the State Government. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives. We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of ‘honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. In the circumstances, the writ petition is allowed. The proceedings in Sessions Trial No. 1201/2001 titled State of U.P. vs. Sangita Gupta & Ors. arising out of FIR No. 336/2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow are quashed. The warrants against the accused are also quashed. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned. We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner's brothers and others involved in accordance with law. Petition allowed.” 10. This petition has been filed in 2006, eleven years ago, and no one has come to seriously argue this petition from which it can be inferred that petitioners and their family may have settled the dispute. In view of above law, I am of the considered opinion that a case for quashment of FIR no. 47/2006 under section 366 RPC registered in Police Station Bahu Fort, Jammu against the petitioner no.2 has been made out. Thus, while exercising power vested in the Court under section 561-A Cr.P.C., FIR No. 47/2006 under section 366 RPC registered in Police Station Bahu Fort, Jammu, is quashed. This petition is allowed.