Allowed

Kiran @ Shailesh S/O. Chotu Pawar and Anr. v. the State of Maharashtra and Anr.

Bombay HC16 Jul 2018APPLN/4394/2017

Case brief

AI extract

What is this about?

This Criminal Application sought quashing of an FIR alleging abduction for marriage. The High Court allowed the application, quashing the FIR based on the consensual relationship, subsequent marriage of the minor girl (now major) with the accused, and lack of force used in the act, citing relevant precedents to avoid matrimonial discord.

What did the court decide?

The First Information Report bearing C. R. No. 36/2017 for offences under Sections 363, 366 and 34 IPC is quashed and set aside.

Kiran @ Shailesh S/O. Chotu Pawar and Anr. Vs the State of… — Quashing and FIR | Bombay HC (2018)

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1 Cri Apln 4394 OF 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 4394 OF 2017

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1] Kiran @ Shailesh S/o Chotu Pawar,
 Age : 22 Years, Occu. Labourer,
2] Sunil S/o Chotu Pawar,
 Age : 16 years, Occu. : Education,
 (Through his real brother Kiran @
 Shailesh S/o Chotu Pawar)
 Both R/o : At Virkhel, Post
 Shevage,
 Tq. Sakri, District Dhule.

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...Applicants.

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 Versus
1] The State of Maharashtra
 Through Police Inspector,
 Pimpalner Police Station,
 Tq. Sakri, Dist. Dhule.
2] Chintaman Atmaram Desale,
 Age : 45 years, Occu. Labourer,
 R/o Virkhel, Tq. Sakri,
 District Dhule.
...Respondents.
.........
Mr. Desale Nilesh N., Advocate for Applicants.
Mr. R. B. Bagul, Addl. Public Prosecutor, for
Respondent No. 1 / State.

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Mr. P. S. More, Advocate for Respondent No. 2.
.........

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CORAM : PRASANNA B. VARALE &

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 SMT.VIBHA KANKANWADI, JJ.

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2 Cri Apln 4394 OF 2017

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RESERVED ON : 09-04-2018.
PRONOUNCED ON : 16-07-2018.

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JUDGMENT : [Per Smt. Vibha Kankanwadi, J]

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By this criminal application under Section

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482 of Criminal Procedure Code, the petitioners are
seeking quashment of the first information report
vide C. R. No. 36/2017 dated 11.5.2017 registered
with Pimpalner Police Station, Tq. Sakri, Dist.

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Dhule. The respondent No. 2 is the resident of
Virkhel Tq. Sakri, Dist. Dhule. The victim is his

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minor daughter. Respondent No. 2 lodged report
stating that he resides with his daughter and two
sons and wife. Victim had taken education upto 8th

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standard. Since last 3 years prior to the F. I. R.

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she was not attending the school. He was doing

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labour work in the agricultural fields. Informant
and his wife had taken the she-goats for grazing and
returned around 6 PM. After having dinner around 8

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PM informant, his wife, son Dileep and the victim

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were sleeping in the courtyard. When he woke up at
about 1 AM on 11.5.2017 for answering nature’s call,

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he found that his daughter was not on her cot. He

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3 Cri Apln 4394 OF 2017

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looked for her. When she could not be found, he woke

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up his wife and son and then to the elder son and
daughter-in-law. All of them searched for the girl,
but, she was not found. They had searched her for
the next day and came to know that two boys and one
girl went on a motor cycle, after filling the petrol
from petrol pump at Tahrabad. Therefore, they
checked CCTV footage and saw that the daughter had
gone alongwith the present applicants. It was stated

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that the present applicants had taken away the
daughter under some pretext. On the basis of the
said report offences came to be registered vide C. R.
No. 36/2017 for the offences under Sections 363, 366
read with Section 34 of Indian Penal Code.

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02.The applicants have contended that the

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applicant no. 1 and victim were in love with each
other. Applicant No. 1 was aged 22 and the victim
was 17 years and 10 months old. They have performed
marriage on 18.7.2017 when victim was 19 years of age
at Omkar Mangal Karyalaya, Alandi Devachi, Tq. Khed,
Dist. Pune. Before reading of the complaint, we make
it clear that victim was about to complete her 18

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4 Cri Apln 4394 OF 2017

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years of age and she had gone alongwith applicants on
her own wish and will. The step was taken by them
due to the love affair and since now the marriage has
been performed, they have prayed for quashing of the
F. I. R.

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03.Notice was tried to be served on the

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respondent No. 2. However, he has refused to accept
the notice and therefore, it will have to be said
that it was served on him.

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04.Heard learned Advocate appearing for the

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applicants and learned Addl. Public Prosecutor for
respondent No. 1. It has been submitted on behalf of
the applicants that the victim was about to complete
18 years. She was in love with applicant No. 1 and
therefore, when the informant and his family members
resisted the marriage between them, she was required

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to take that step. She had left the house
voluntarily and there was no active role played by
the applicants. Now, they have performed the
marriage and the marriage certificate has been
produced on record. Therefore, in order to have a

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5 Cri Apln 4394 OF 2017

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happy married life, the F. I. R. be quashed.

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05.The learned Addl. Public Prosecutor

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vehemently submitted that the offence that has been
committed by both the accused is serious. Merely
because accused has married the victim that does not
absolve him from punishment.

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06.The victim was present before this Court.
As aforesaid, the respondent No. 2 has refused to
accept the notice, we have confirmed from the victim
about the facts in the petition. She has stated that

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she had gone with the applicant No. 1 on her own and
she has now performed marriage with him. We have
seen the birth certificate, Adhaar card of the victim
as well as the school leaving certificate of the
applicant No. 1. It appears that on the date of
alleged incident, applicant No. 1 was major and the
victim was 17 years and 10 months old. She had
attained the age of understanding and therefore, it

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can be said that she was able to understand the
difference between what is wrong and what is right
about her. The fact is reiterated by the applicant

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6 Cri Apln 4394 OF 2017

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No. 1 and the victim that they were in deep love with
each other. The offence with which F. I. R. has been
filed are in fact against society and they can not be
quashed by consent. So also merely because the
accused has married the victim that will not absolve,
in general, the accused from criminal liability.
However, taking into consideration, peculiar
circumstances, we are required to consider the facts
as stated above. Though opportunity was given to the
informant to contest the present application, he has
preferred not to come before this Court and object
the application.

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07.The circumstances that is required to be

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seen that though the informant, his wife and one son
were sleeping near the victim, they could not realize
that the applicants had come and the victim was going
alongwith them. Therefore, the said act was not
forcible and she was not kidnapped or abducted to
compel her to marry with applicant No. 1 against her
will.

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08. We would like to rely on the decision in

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7 Cri Apln 4394 OF 2017

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Writ Petition No. 4168/2013 by the Principal Bench
wherein almost similar facts were there. It was
observed that :

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“ In the instant case, the FIR reveals that the Petitioner and Respondent No. 2 were in love with each other and physical relationship between them was consensual. However, at the relevant time Respondent No. 2 was minor. After she attained

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majority, she got married to the Petitioner. Now, they are living together. Under such circumstances, if prosecution is allowed to be continued against the Petitioner it will bring discord in their matrimonial relationship and they will be unnecessarily required to face the consequences of prosecution, which is not at all likely to end into conviction. Consequently, no fruitful purpose will be served by continuing with the prosecution of the Petitioner” .

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09. These observations are equally applicable
here. Applicant and victim are happily
married.Takingintoconsideration,said

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circumstances and in the light of principles laid

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8 Cri Apln 4394 OF 2017

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down by the Apex Court in the decision of Narinder
Singh V/s State of Punjab (2014 AIR SCW 2065) there
is no impediment in quashing the F.I.R.. The powers
of this Court under Sec. 482 of Code of Criminal
Procedure is required to be used in the interest of
justice, in order to avoid the abuse of process of
law.

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Hence, following Order;

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ORDER

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(i) Criminal application is hereby

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allowed.

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(ii) The F. I. R. Report bearing C. R.
No. 36/2017 registered at the

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behest of respondent No. 2 at
Police Station, Pimpalner Police
Station, Tq. Sakri, Dist. Dhule
for the offences punishable under
Sections 363, 366 read with
Section 34 of Indian Penal Code

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9 Cri Apln 4394 OF 2017

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is hereby quashed and set aside.

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 [SMT. VIBHA KANKANWADI] [PRASANNA B. VARALE]
 JUDGE JUDGE

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ggd/-.

Kiran @ Shailesh S/O. Chotu Pawar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kiran @ Shailesh S/O. Chotu Pawar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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