Bablu @ Babulal Rathor vs The State Of Madhya Pradesh
2021 Latest Caselaw 3650 MP

   1    THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.30855/2021
    Bablu alias Babulal Rathore Vs. State of M.P. and another

                 Through Video Conferencing
Gwalior, Dated:27/07/2021

       Shri Anoop Kumar Gupta, Advocate for applicant.

       Shri Ajay Singh Raghuvanshi, Panel Lawyer for respondent

no.1/State.

This application under Section 482 of Cr.P.C. has been filed for

quashing the FIR in Crime No.331/2016 registered at Police Station

Tyonda, District Vidisha for offence under Sections 363, 366 of IPC

and Section 7/8 of the Prevention of Children from Sexual Offences

Act, 2012.

It is submitted that after recovery of the prosecutrix, she has

given a specific statement that she has voluntarily gone alongwith the

applicant and, therefore, in the light of the judgment passed by the

Supreme Court in the case of S. Varadarajan Vs. State of Madras

reported in (1965) 1 SCR 243, it is clear that no offence under

Sections 363, 366 of IPC and under Section 7/8 of the POCSO, Act

has been made out. It is further submitted that the applicant has

married the prosecutrix and is blessed with two children. The

prosecutrix herself had gone with the applicant to Ahmadabad out of

her own volition.

Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that it is a matter of evidence as 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30855/2021 Bablu alias Babulal Rathore Vs. State of M.P. and another

to whether the prosecutrix was enticed by the applicant to leave her

house or she had voluntarily left her house.

Heard learned counsel for the parties.

Whether the prosecutrix had left her house out of her own

volition without any enticement by the applicant or not, is a disputed

question of fact. Since the prosecutrix left the house and went to

Ahmadabad alongwith the applicant, therefore, at this stage it cannot

be said that there was no enticement by the applicant for the same.

The Supreme Court in the case of Anversinh @ Kiransinh Fatesinh

Zala Vs. State of Gujarat in Criminal Appeal No.1919/2010

decided on 12/01/2021 after taking note of the law laid down in the

case of S. Varadarajan (supra) has held as under:

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused."

Therefore, it cannot be said that under no circumstance the 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30855/2021 Bablu alias Babulal Rathore Vs. State of M.P. and another

accused would not be guilty of offence under Sections 363, 366 of

IPC. If a minor girl has left the house on the enticement of the

accused, then he is certainly guilty of committing offence under

Sections 363, 366 of IPC.

So far as the marriage of the prosecutrix with the applicant is

concerned, the date of birth of the prosecutrix is 7/2/2000 and she

was kidnapped on 15/11/2016 and she was less than 17 years of age.

The applicant has executed an agreement of marriage by claiming

that the marriage has been performed in a temple. Said marriage

affidavit was executed on 19/11/2016. Since the date of birth of the

prosecutrix is 7/2/2000, therefore, it is clear that even on 19/11/2016,

she was minor below the age of 17 years. In the light of the judgment

passed by the Supreme Court in the case of Independent Thought

vs. Union of India & Anr. reported in (2017) 10 SCC 800, it is clear

that physical relationship with a minor wife below the age of 18 years

is also an offence under Section 376 of IPC. Further, the applicant

has filed a copy of the birth certificate to show that the prosecutrix

had given birth to a female child on 6.5.2018. Since the date of birth

of the prosecutrix was 7.2.2000, therefore, it is clear that on the date

of birth of her first child, the prosecutrix was minor below the age of

18 years.

Under these circumstances, it is clear that there is a prima 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30855/2021 Bablu alias Babulal Rathore Vs. State of M.P. and another

facie material against the applicant warranting his prosecution.

As no case is made out for quashment of FIR in Crime

No.331/2016 registered at Police Station Tyonda, District Vidisha,

the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.07.28 17:47:02 +05'30'