Delhi High Court
Nadeem Khan vs The State (Gnct Delhi) & Ors on 12 February, 2016
Author: Suresh Kait
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 12th February, 2016
+ CRL.M.C. No.613/2016
NADEEM KHAN
..... Petitioner
Represented by: Mr.Anubhav Tyagi, Adv
with petitioner.
versus
THE STATE (GNCT DELHI) & ORS
..... Respondents
Represented by: Mr.G.M.Farooqui, APP for
the State with Inspector O.P.
Lekhwal, SHO and SI
Brahma Prakash, PS
Sunlight Colony, Delhi/R1.
Mr.Rakesh Kumar, Adv for
R2& 3 with both respondents
in person.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. By way of this petition filed under Section 482 of the Code of
Criminal Procedure, 1973, petitioner seeks quashing of FIR No.48/2016
registered at Police Station Sunlight Colony, Delhi, for the offence
punishable under Section 363 of the IPC and the consequential
proceedings emanating therefrom against him.
2. Learned counsel appearing on behalf of the petitioner submits that
the aforesaid case was registered on the complaint of respondent No.2 out
of misunderstanding for leaving the house by respondent No.3. Though,
the girl voluntarily accompanied the petitioner on 16.01.2016 and
thereafter she returned home on her own on 18.01.2016.
3. By virtue of this petition, the petitioner prays for quashing of the
FIR and the proceedings emanating from the same on the ground that the
petitioner and respondent No.3 living in same vicinity. Thereafter, due to
the intervention of the family friends of both sides and respectable
members of the society, in the larger interest of both the parties and to
maintain the cordial relations, the respondent No.2 and the petitioner have
amicably settled their dispute vide settlement dated 03.02.2016.
4. Learned counsel for the petitioner further submits that though the
prosecutrix was less than 18 years of age at the time of the incident,
despite, the case should not have been lodged by the Police against the
petitioner in view of judgment passed by the Full Bench of this Court in
case Courts On Its Own Motion (Lajja Devi) Vs. State 2012 VI AD,
Delhi 465, whereby held as under:
"51. If the girl is more than 16 years, and the girl
makes a statement that she went with her consent and
the statement and consent is without any force,
coercion or undue influence, the statement could be
accepted and Court will be within its power to quash
the proceedings under Section 363 or 376 IPC. Here
again no straight jacket formula can be applied.
The Court has to be cautious, for the girl has right to
get the marriage nullified under Section 3 of the PCM
Act. Attending circumstances including the maturity
and understanding of the girl, social background of
girl, age of the girl and boy etc. have to be taken into
consideration."
5. On the other hand, learned Additional Public Prosecutor appearing
on behalf of the State submits that FIR in question was registered against
the petitioner as on the date of incident, the respondent No.3 was stated to
be 16 years of age. The matter is pending at the initial stage of
investigation. He further submits that since the respondent No.2/
complainant and respondent No.3 do not want to pursue this case further
against the petitioner, therefore, no useful purpose will be served in
continuing the proceedings. Thus, the State has no objection if the
present petition is allowed.
6. The respondent No.2/complainant and his daughter/ respondent
No.3 are personally present in the Court through learned counsel and have
been duly identified by the Investigating Officer of the case. The affidavit
of respondent No.2 is at page No.13 of petition. Respondent No.3 stated
that she had voluntarily accompanied the petitioner of her own free will.
She submits that since the matter stands settled between them, therefore,
to restore cordiality amongst the parties, proceedings arising out of FIR in
question be brought to an end.
7. In S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the
Supreme Court observed that a girl below 18 years had asked her
boyfriend (the accused) to come to a particular place and the accused had
agreed to accompany the girl. In a situation, it was held that where a
minor leaves her father's protection knowing and having capacity to know
the full import of what she is doing voluntarily joins the accused, the
accused cannot be said to have taken her away from the keeping of her
lawful guardian. The relevant observations of the Apex Court are as
under:-
"9. It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves
from laying down that in no conceivable
circumstances can the two be regarded as meaning the
same thing for the purposes of Section 361 of the
Indian Penal Code. We would limit ourselves to a case
like the present 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."
8. A three Judge Bench decision of the Supreme Court in 'Gian Singh
Vs. State of Punjab' (2012) 10 SCC 303, reiterated the principles that the
High Court has inherent power to quash FIR or complaint in non-
compoundable cases (1) to secure ends of justice or (2) to prevent abuse
of process of any Court. The Supreme Court held that, however, such
power must be exercised with due regard to the nature and gravity of the
crime.
9. In the case bearing W.P.(Crl.) No.1442/2012, titled as 'Bholu
Khan Vs. State of NCT of Delhi & Ors,' decided on 01.02.2013, a
Division Bench of this Court held that if a girl is more than 16 years and
voluntarily and of her own will accompanies a person, the proceedings
under Section 363 or 376 IPC can be quashed.
10. Relying upon the judgment of the Supreme Court in S.
Varadarajan's case (supra), offence under Section 363 IPC is not made
out against the petitioner. There does not seem to be any conspiracy in the
alleged kidnapping of the prosecutrix in view of peculiar facts and
circumstances of this case mentioned hereinabove.
11. Keeping in view the law discussed above, the fact that matter
stands settled between the parties and the statements of respondent Nos.1
to 3, it is a fit case where power under Section 482 of the Code of
Criminal Procedure, 1973, can be exercised as continuation of the FIR
and the proceedings emanating therefrom in question shall be abuse of the
process of the law. Thus, it would be in the interest of justice and to avoid
harassment to the petitioner, if the proceedings are quashed.
12. Consequently, FIR No.48/2016 registered at Police Station Sunlight
Colony, Delhi, for the offence punishable under Section 363 of the IPC
with emanating proceedings thereto, if any, is hereby quashed qua the
petitioner.
13. Accordingly, the petition is allowed with no order as to costs.
SURESH KAIT
(JUDGE)
FEBRUARY 12, 2016
M/jg
