Govindbhai Pratapbhai Pagi vs State Of Gujarat
2023 Latest Caselaw 5676 Guj

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     R/CR.MA/9558/2014                                ORDER DATED: 04/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 9558 of 2014

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                         GOVINDBHAI PRATAPBHAI PAGI
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JB DASTOOR(239) for the Applicant(s) No. 1
MR. H.K. PATEL, LD. ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                               Date : 04/08/2023

                                 ORAL ORDER

1. By way of preferring this application under Section 482 of the Criminal Procedure Code, 1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing and setting aside the criminal complaint registered against him before the Bavla Police Station, District: Ahmedabad (Rural) being C.R. No.I-70 of 2013 for the offence punishable under Sections 363 and 366 of the Indian Penal Code.

2. The applicant-Govindbhai Pratapbhai Pagi is the original accused No.1 and the respondent No.2-Shambhubhai Nanubhai Pagi is the original complainant and for the sake of convenience and brevity, they shall hereinafter be referred to as the accused and the complainant. Criminal Procedure Code, 1973 shall hereinafter be referred to as the 'Code' and the Indian Penal Code, 1860 shall hereinafter be referred to as the 'IPC.

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3. The facts leading to filing of the present application are as under;

3.1 The accused and the complainant are residing in the same village and in the vicinity. Therefore, the accused developed an intimacy with the daughter of the complainant, namely, Vilasben Shambhubhai Pagi.

3.2 Therefore, on 13.05.2013, the daughter of the complainant left her parental home and eloped with the accused. One Manubhai Devipujak informed the complainant that, he dropped his daughter Vilasben and the accused in his rickshaw at village Vasna in the midnight of 13.05.2013.

3.3 Thereafter, after a period of some time, as he did not find the whereabouts of his daughter, he lodged the impugned FIR with the Bavla Police Station.

4. Learned advocate Mr. J.B. Dastoor appearing on behalf of the accused has submitted that both the complainant and the accused are residing in the same village and in the same vicinity. Therefore, the accused developed an intimacy with the daughter of the complainant and one fine day, they both eloped from their respective houses. Learned advocate Mr. Dastoor has submitted that the daughter of the complainant, namely, Vilasben is born on 20.07.1995 and after attaining the age of majority, they have got married with each other as per the Hindu rites and rituals. Learned advocate Mr. Dastoor has further submitted that at the time of the incident, the daughter of the complainant had already completed 17 years and 10 months and immediately after attaining the age of majority,

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they got married and since then they are living happily as husband and wife. Learned advocate Mr. Dastoor has submitted that the accused and the daughter of the complainant got registered their marriage before the Registrar of Marriage, Ahmedabad and a certificate to that effect also came to be issued by the Registrar of Marriage, Ahmedabad under the provisions of the Gujarat Registration of Marriage Act, 2006 dated 18.10.2013. Learned advocate Mr. Dastoor has also relied upon the affidavit dated 12.10.2013, duly affirmed by the daughter of the complainant on oath wherein it is stated that at the time of registration of marriage, she was major and already completed 18 years of age and she has left her parental home on her own free will and volition and married with the accused. Learned advocate Mr. Dastoor has submitted that after getting married with the accused, the daughter of the complainant viz. Vilasben also addressed a letter to the concerned Police Officer of the Bavla Police Station specifically stating that due to a deep intimacy with the accused, she voluntarily left her parental home without taking any articles or ornaments with her. The said letter is also annexed along with the petition. Learned advocate Mr. Dastoor has further submitted that at the time of admitting the present application, i.e, on 31.07.2014, the concerned Public Prosecutor had verified the factum of genuineness of the marriage registration certificate and made a statement that the applicant was 18 years of age as on the said date and got married with the applicant-accused and are living happily married life.

5. In such circumstances, referred to above, learned

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advocate Mr. Dastoor prays that there being merit in this application, the same be allowed and the impugned FIR be quashed.

6. Learned APP Mr. H.K. Patel appearing on behalf of the respondent-State has opposed the present application and submitted that the FIR does disclose the offence as alleged and, therefore, the present application may be rejected. Learned APP has further submitted that however despite rule having been served upon the original complainant, he has preferred not to remain present before this Court and, therefore, this Court may pass appropriate orders as this Court may deem fit, just and proper.

7. Heard the learned advocate appearing for the applicant and perused the materials available on record.

8. It is to be noted that though served, the first informant has chosen not to appear before this Court either in person or through an advocate and oppose the present application.

9. Considering the date of birth as per AnnexureB to this application which is a photo copy of the school leaving certificate issued by the School at Bavla, it transpires that the date of birth of the daughter of the first informant- respondent No.2, namely, Vilasben is 20.07.1995. It is pointed out by Mr. Dastoor, learned advocate for the applicant that the applicant and Vilasben have married and are staying together as husband and wife. Considering the above stated factual aspect, even if the allegations levelled in the FIR is taken at its face value, it cannot be said that the daughter of the first

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informant was abducted by the present applicant from lawful custody of the first informant i.e. her mother and father therefore, the impugned FIR does not disclose any prima facie offence under Sections 363 and 366 of the IPC. It is also an admitted position that on attaining majority, the daghter of the complainant got married with the applicant- accused and living happy married life since the date of marriage.

10. At this juncture, it would be appropriate to refer to the ratio laid down by the Apex Court in the case of Sangita Rani (Smt) alias Mehnazjahan v. State of Uttar Pradesh and another, reported in 1992 Suppl (1) SCC 715, wherein it has been held as under:

"That, in a situation where both the spouse are major, and there has been a valid marriage in accordance with law, and both of them are living together, the marriage should be sustained and nothing should be allowed to happen which would affect that position. The Supreme Court had, in the facts of the said case, cautioned the parents to accept the situation and create no problem for the petitioner and her husband. It was observed that, ordinarily, the Court does not interfere at investigation stage in a criminal matter, but in the special facts indicated therein, it would be necessary to quash the pending investigation initiated by the father of the petitioner".

11. The Hon'ble Supreme Court in the case of Lata Singh v. State of U.P., reported in (2006) 5 SCC 475 observed as under:

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"17. 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, intercaste 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 intercaste 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 severally 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 intercaste or interreligious 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 intercaste or interreligious 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 intercaste 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 treats 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."

12. Considering the facts and circumstances of the case and in light of the above referred judgments, it is an admitted position that the daughter of the first informant on her attaining majority has married the

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applicant which is a valid marriage. In these circumstances, the marriage should be sustained and nothing should be allowed which could affect the position. Even otherwise, in light of the observations made above, when the impugned FIR is taken at its face value, no prima facie offence is culled out as alleged under Sections 363 and 366 of the IPC in the facts and circumstances arising out of this application and even to secure the ends of justice, the impugned FIR deserves to be quashed and set aside.

13. Resultantly, this application is allowed and the impugned FIR bearing CR No.I-70 of 2013 registered with Bavla Police Station, District: Ahmedabad (Rural) filed against the present applicant for the alleged commission of offence punishable under Sections 363 and 366 of the IPC are hereby quashed and set aside. Consequently, all proceedings arising out of the aforesaid FIR are also quashed and set aside. Rule is made absolute to the aforesaid extent. Ad-interim relief, if any, stands vacated.

(DIVYESH A. JOSHI,J)

VAHID