Allahabad High Court

Smt. Manisha And Others vs State Of U.P. Thru. Prin. Secy. ... on 15 April, 2019

Bench: Ajai Lamba, Karunesh Singh Pawar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Case :- MISC. BENCH No. - 31969 of 2017
 

 
Petitioner :- Smt. Manisha And Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others
 
Counsel for Petitioner :- Amar Nath Dubey,Keerti Gupta
 
Counsel for Respondent :- Govt. Advocate,Rajnish Ojha
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Karunesh Singh Pawar,J.

(Delivered by Hon'ble Karunesh Singh Pawar,J.)

1. The petitioners have filed the present writ petition seeking issuance of a writ in the nature of certiorari quashing impugned first information report dated 28.10.2017 lodged by opposite party no. 3 (father of petitioner no. 1) in case crime No. 179 of 2017 under Section 363 of Indian Penal Code, Police Station Sangipur, District Pratapgarh.

2. We have heard Ms. Keerti Gupta, learned counsel for the petitioners, Shri S.P. Singh, learned counsel for the State and Shri Rajnish Ojha, learned counsel for respondent no. 3.

We have gone through the contents of the impugned first information report.

3. Petitioner no.1 is the victim of offence. Petitioner no.2 is the husband of petitioner no.1. Petitioners 3 and 4 are parents of petitioner no.2.

4. It has been contended by learned counsel for the petitioners that petitioner no.1 having attained age of majority willingly went with petitioner no.2. Petitioner no.1 has been in love with petitioner no.2.

In reference to photographs placed on record as Annexure-3 and marriage agreement Annexure-4, it has been stated that petitioner no.1 willingly got married to petitioner no.2.

5. Learned counsel has drawn attention of the court towards order dated 01.12.2017 rendered in Writ Petition No.29071 (MB) of 2017 titled "Smt. Manisha and another versus State of U.P. and others" to say that petitioners 1 and 2 were apprehending initiation of criminal cases. In such circumstances, they approached this Court to seek issuance of a writ in the nature of mandamus directing respondents not to harass the petitioners in context of their marriage.

Learned counsel for the State gave assurance to the Court that unless criminal proceedings are initiated, the petitioners shall not be summoned to the Police Station. In such circumstances, the petition was disposed of. The order has been placed on record as Annexure-7.

6. Learned counsel for the petitioners has drawn attention of the court towards statement of petitioner no.1 recorded under section 164 Criminal Procedure Code placed on record as annexure-2 with the short counter affidavit. In the statement, the victim/petitioner no.1 has made it evident that she had neither been kidnapped nor abducted; rather had been in love with petitioner no.2 on account of which she went with him to Delhi. They stayed together. In the statement, the victim has further stated that her father and other villagers have been threatening her that she would be killed.

Learned counsel for the petitioners has also referred to document Annexure-1 appended with counter affidavit dated 30.11.2018, vide which in the course of investigation, bone age of petitioner no.1/victim has been shown to be above 18 years.

7. It is the pleaded case on behalf of the petitioners that the victim having attained age of 18 years and having given her statement under Section 164 Criminal Procedure Code demonstrating thereby that she had neither been kidnapped nor abducted, offence has not been committed under Section 363 Indian Penal Code.

8. Learned counsel(s) for respondents have referred to counter affidavit filed on behalf of respondent no.3 which is to the effect that as per Aadhar Card, date of birth of petitioner no.1 is 01.01.2002. In such circumstances, petitioner no.1 was just above the age of 16 years, hence a minor.

Learned counsel(s) have also referred to Annexure-2 appended with counter affidavit of respondent no.3. According to testimonial, date of birth of petitioner no.1 is 24.04.2001. It has been pleaded that the victim being minor, offence under Section 363 Indian Penal Code has been committed.

9. Having heard the rival contentions and having considered the relevant documents placed on record, we find that as per the case of the complainant himself, there is a serious discrepancy in the age/date of birth of petitioner no. 1. As per her Aadhar Card, her date of birth is 01.01.2002. As per high school examination mark sheet, date of birth of petitioner no. 1 is 24.04.2001.

It appears that in view of the discrepancy, the investigating agency thought it appropriate to get the age of petitioner no. 1 assessed through ossification test. On ossification test, as noticed above, age of petitioner no. 1 has been found to be above 18 years (Annexure-1 with short counter affidavit filed on behalf of the investigating agency).

10. The entire controversy is required to be considered in context of provisions of Section 363 Indian Penal Code read with Section 359 Indian Penal Code and Section 361 Indian Penal Code.

Section 363 Indian Penal Code reads as under:-

"363. Punishment for kidnapping--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"

Section 359 of Indian Penal Code reads as under:-

"359. Kidnapping.-- Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship."

Section 361 Indian Penal Code reads as under:-

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

11. From the document relied on and referred to by the investigating agency i.e. ossification test report, age of the prosecutrix has been found to be above 18 years. In such circumstances, there is no occasion for this court to conclude that petitioner no. 1 was a minor on the date of incident.

12. In any case, this court is of the considered view that the entire controversy is required to be considered in context of accusations that petitioner no. 1 had been kidnapped.

Petitioner no. 1 herself has approached this Court the second time (the first time having filed writ petition No. 29071 (MB) of 2017) (supra) to plead and assert that she had not been kidnapped, rather on account of her love affair went with petitioner no. 2 of her own volition, and stayed with him.

In view of the asserted fact on behalf of petitioner no. 1 through the process of the court by virtue of two cases filed in court, and by virtue of her statement recorded under Section 164 Criminal Procedure Code in the course of investigation, we have no reason to rule otherwise. In case a kidnapee states repeatedly that she had not been kidnapped, surely the investigating officer cannot conclude that she had been kidnapped.

In such circumstances, this court has no reason to rule that petitioner no. 1 has been kidnapped and therefore petitioners 2 to 4 have committed offence of kidnapping.

13. We are of the view that ingredients of Section 363 Indian Penal Code read with Sections 359 and 361 Indian Penal Code are not satisfied in view of medical age of the victim and her repeated stand to the effect that she had not been kidnapped.

14. We have no hesitation in holding that impugned criminal proceedings have been initiated in abuse of process of the Court and process of the law because respondent no. 3 has not accepted alliance of choice of his daughter with petitioner no. 2. Continuance of such proceedings would certainly result in abuse of process of the Court.

15. For all the reasons given above and in peculiar facts and circumstances of the case, we hereby allow this petition.

First Information Report bearing Case Crime No. 179 of 2017, under Section 363 Indian Penal Code, Police Station Sangipur, District Pratapgarh and all consequent proceedings are hereby quashed.

16. Let a copy of this order be forwarded to Chief Judicial Magistrate, Pratapgarh and Station House Officer, Police Station Sanghipur, District Pratapgarh.