Allowed

Dhanesh Kumar and Ors. v. the State of Bihar and Anr.

Patna HC18 Apr 2013CR. MISC./34429/2011

Case brief

AI extract

What is this about?

The Patna High Court allowed a petition quashing a trial court order summoning petitioners for kidnapping under Section 366-A IPC. Relying on victim statements showing voluntary marriage and citing Varadrajan, the court held the prosecution was an abuse of process.

What did the court decide?

The impugned order dated 27.04.2011 passing summons in Complaint Case No. C-145 of 2008 under Section 366-A IPC is quashed.

Dhanesh Kumar and Ors. Vs the State of… — Constitutional and Fundamental Rights | Patna HC (2013)

¶1

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT PATNA

¶4

Criminal Miscellaneous No.34429 of 2011

¶5

====================================================== 1. Dhanesh Kumar Son Of Hira Dyal Sah 2. Hira Dyal Sah @ Hira Lal Sah Son Of Jagarnath Sah 3. Sunaina Devi W/O Hira Dyal Sah 4. Lokesh Kumar Son Of Hira Dyal Sah 5. Nemi Lal Sah Son Of Late Vishwanath Sah

¶6

Anami Sharan Son Of Late Shrawan Sah

¶7

Jagarnath Sah Son Of Late Ram Prasad Sah 8. Dyal Sharan Prasad Son Of Jagarnath Sah

¶8

Babita Devi W/O Dyal Sharan Prasad

¶9

Kiran Kumari D/O Upendra Sah 11. Shiv Kumari Devi W/O Sunil Sah All are Resident Of Village-Madhuban, P.S-Madhuban, District-East Champaran. .... .... Petitioner/s Versus 1. The State Of Bihar

¶10

.... .... Petitioner/s

¶11

Ramchandra Prasad S/O Of Late Jank Sah Resident Of VillageMadhuban, P.S-Madhuban, District-East Champaran.

¶12

.... .... Opposite Party/s

¶13

====================================================== Appearance : For the Petitioner/s : Mr. Vishal Saurabh (Adv.) Mr. Priyank Samdarshi For the Opposite Party/s : Mr. Binod Kumar Singh (Adv.) For the State : Mr. Brajendra Nath Pandey (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER

¶14

4 18-04-2013 1. Heard learned counsel for the petitioners as well as learned counsel for Opposite Party No. 2. The opposite party no. 2 is also present in person before this Court. With consent of both the parties, this petition is being disposed of on admission stage itself.

¶15

Petitioners have prayed for quashing the order dated 27.04.2011 passed by Sri Jawed Alam, Judicial Magistrate,

¶16

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶17

¶18

1st Class, Sikarhana, Motihari in Complaint Case No. C-145 of 2008/Enquiry No. 10 of 2010 by which and whereunder he having found prima facie case under Sections 366 A, 323, 504, 147 of the Indian Penal Code ordered to issue summons against the petitioners.

¶19

Opposite Party No. 2 filed above stated Complaint Case No. C-145 of 2008 against the petitioners alleging therein that on 28.01.2008 his daughter, namely, Priyanka aged about 15 to 16 years had gone to her coaching institute but she did not return to her home and later on, he came to know that his daughter was taken away by the petitioners. He gave oral information to local police in respect of missing of his girl and when he approached the petitioners on 27.02.2008, petitioners abused and assaulted him and, thereafter, he filed above stated complaint case against the petitioners on 14.03.2008. The learned trial court enquired the allegation under Section 202 of the Cr.P.C. and having found prima facie case passed the impugned order which has been challenged by the petitioners before this Court.

¶20

Learned counsel appearing for the petitioners submitted that in course of enquiry, the statement of victim, Priyanka was recorded in connection with Complaint Case No. C- 145 of 2008 under Section 164 of the Cr.P.C. in which she

¶21

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶22

¶23

specifically stated that she was never kidnapped rather she voluntarily went to the house of petitioner no. 1 and after that she proposed to petitioner no. 1 for solemnization of marriage and after that they got solemnized their marriage. She further stated that on 24.02.2008, her parents came to her in laws’ house but she refused to go with them. Learned counsel for the petitioners submitted that the learned Magistrate, who recorded the statement of victim assessed her age as 19 years. He further contended that even if it assumed that victim was aged about 16 years at the time of alleged occurrence, then also, the essential ingredients of Section 366 A of the Indian Penal Code are lacking and the statement of victim discloses that neither she was enticed away nor she was taken away by the petitioner no. 1 and other petitioners and therefore, the offence of Section 366 A of the Indian Penal Code is not made out and the prosecution of petitioners is nothing but only an abuse of process of the court. It is also contended by him that the marriage of victim was solemnized with petitioner no. 1 in the year 2008 and now she has become mother of one child and presently, she has been residing in the house of petitioner no. 1 as his wife and she has been leading very happy married life.

¶24

Learned counsel for the petitioners relied upon a

¶25

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶26

¶27

decision reported in 2011 (2) PLJR Sunil Kumar Singh vs. State of Bihar and others in which a Bench of this Court having relied upon decision of Apex Court reported in A.I.R. 1965 SC 942 (Varadrajan vs. State of Madras) held that in case of Section 366 A of the Indian Penal Code, if the victim is found aged about 18 years and she gives statement under Section 164 of the Cr.P.C. that she is desirous to marry accused and ran away with him when family members negated to negotiate the marriage and even threatened to kill her and furthermore, if there is no allegation of taking away or enticing away nor there is any allegation of giving blandishment, the prosecution against accused is nothing but only an abuse of process of the court.

¶28

On the other hand, learned counsel appearing for Opposite Party No. 2 pointed out that in course of enquiry, the matriculation certificate of victim was produced before the enquiring court and in the aforesaid matriculation certificate, the date of birth of victim was entered as 03.04.1992 and, therefore, the aforesaid matriculation certificate clearly discloses that the victim was minor at the time of alleged occurrence and, therefore, even if victim voluntarily solemnized her marriage with petitioner no. 1, then also, a case under Section 366 A of the Indian Penal Code is made out. He further submitted that controversy of age of

¶29

¶30

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶31

victim can only be tested in course of trial and it is not a proper stage to decide the age of victim.

¶32

Having heard the rival contentions of both the parties, I have gone through the record. I find that the victim was examined by learned Judicial Magistrate under Section 164 of the Cr.P.C. in which she, specifically, stated that she voluntarily solemnized her marriage with petitioner no. 1 on 07.02.2008 and she was never kidnapped by any person. She further stated in her statement that her parents wanted to get her marriage solemnized with other person whereas she wanted to solemnize her marriage with petitioner no. 1 and when she came to know that her parents were conspiring to kill her, she went to the house of petitioner no. 1 and got solemnized her marriage with petitioner no. 1. Furthermore, I find that learned Magistrate recorded the statement of victim under Section 164 of the Cr.P.C. on 16.04.2008 and on that date the learned Magistrate assessed the age of victim as 19 years. No doubt, in matriculation certificate of the victim, her date of birth has been entered as 03.04.1992 but admittedly, presently,

¶33

the victim has been residing with petitioner no. 1 and she has already become mother of a child.

¶34

In the case of Varadrajan vs. State of Madras reported in A.I.R. 1965 SC 942, the Apex Court very clearly held

¶35

¶36

Patna High Court Cr.Misc. No.34429 of 2011 (4) dt.18-04-2013

¶37

that there is a difference between the case of elopement and kidnapping and the case of mere elopement has always to be distinguished from a case of kidnapping and furthermore, it has been held by the Apex Court in the aforesaid case that even if a lady under 18 years of age was moving out of her own free will out of her parents’ house without having received blandishment and was ultimately going to marry a man, then also, it could not be a case of kidnapping and it could be a case merely of elopement.

¶38

Admittedly, in this case no inducement was made by the petitioners to victim as it is evident from the statement of victim itself rather victim clearly stated that she voluntarily went to the house of petitioner no. 1 and gave proposal for the marriage and after that both got solemnized their marriage. Therefore, there is no ingredient of inducement or forceful taking away of the victim and I do agree with the submission of learned counsel for the petitioners that the essential ingredients of Section 366 A of the Indian Penal Code are lacking in this case.

¶39

In the aforesaid circumstance, in my view also, the continuance of the prosecution of the petitioners is nothing but only an abuse of process of the Court and this petition is liable to be allowed.

¶40