Allowed

Kapil Dev v. State of Haryana and Others

Punjab & Haryana HC8 Dec 2010CRM-M/22516/2010

Case brief

AI extract

What is this about?

The High Court quashed an FIR for kidnapping and cheating filed by the father of the prosecutrix. Finding that the marriage was voluntary and the age requirement did not render it void, the court held continuing proceedings would be an abuse of process.

What did the court decide?

FIR No. 382 dated 3.11.2009 under Sections 363, 366, 216, 120-B IPC and consequent proceedings are quashed.

Kapil Dev Vs State of Haryana and Others — Cheque Dishonour | Punjab & Haryana HC (2010)

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Misc. No. M- 22516 of 2010 (O&M) Date of Decision : December 8, 2010

Kapil Dev

........Petitioner

Versus

State of Haryana and others ........Respondent

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CORAM : HON'BLE MRS. JUSTICE SABINA

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Present : Mr. Gorakh Nath, Advocate for Mr. Sunil Bhardwaj, Advocate, for the petitioner.

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Mr. Satyavir Singh Yadav, DAG, Haryana.

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Mr. Deepak Balyan, Advocate, for respondent No.3.

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SABINA, J.

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Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the FIR No.382 dated 3.11.2009, under Sections 363,366,216,120-B of Indian Penal Code (in short 'IPC'), registered at Police Station Sadar Bahadurgarh, District Jhajjar and subsequent proceedings in the court of Sub Divisional Judicial Magistrate.

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The contents of the FIR (Annexure P-3) read as under :-

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“To, the Incharge Police Post Mandhothi, Tehsil Bahadurgarh, Distt. Jhajjar. Subject : Regarding action against accused. Sir, It is

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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submitted that I, Sukhbir Singh s/o Raghubir Singh, Caste Jate is permanent resident of village Bhapdhoda, Distt. Jhajjar and I am in service that Reetu is my real daughter who is studying in 11^th Class, who was found missing at 12 p.m. on 28.08.2009. She minor when I at my own level enquired a girl namely Sweety s/o Dhopa R/o same village gave three telephone number and after getting call details of dated 21.09.2009 the last number 694 of Kapil S/o Narender Caste Pandit R/o Village Thana Kalan, Distt. Sonepat. I am fully assured that the abovesaid Kapil has abducted my minor daughter after intimidating her. Legal action be taken against him. Thanking you, Sd/- Sukhbir Singh applicant. Sukhbir Singh S/o Raghubir Singh, Caste Jate is permanent resident of village Bhapdhoda, Distt. Jhajjar.”

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Learned counsel for the petitioners has submitted that petitioner No.1 has performed marriage with the prosecutrix-daughter of respondent No.3 – complainant. They have been blessed with a child. Since the father of the prosecutrix was not happy with the marriage of his daughter with petitioner No.1 he had lodged the FIR against petitioner No.1 and his family members.

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Learned counsel for respondent No.3, on the other hand, has submitted that the prosecutrix was a minor and hence could not perform marriage with petitioner No.1 and the said marriage is void.

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Prosecutrix – Ritu is present in person and has stated that she has performed marriage with petitioner No.1 of her own free will and they have been blessed with a child. Now a days she is residing in her matrimonial home with her husband. Prosecutrix has also stated that her date of birth is 3.4.1990.

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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In the case of State of Haryana vs . Bhajan Lal , 1992 Supp(1)

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Supreme Court Cases 335 , the Apex Court has held as under :-

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“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

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(1)Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

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Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

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The facts of the present case are peculiar. Although the father of the prosecutrix has lodged the FIR alleging that his daughter was a minor and has been kidnapped by the petitioners but the daughter of the

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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complainant has appeared in the Court and has stated that she had gone with petitioner No.1 with her own free will and had performed marriage with him and is residing happily in her matrimonial home.

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Section 5 (iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') reads as under :-

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“Conditions for a Hindu marriage :- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-

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(i) & (ii) x x x x x

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( iii ) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [Eighteen years] at the time of the marriage.”

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Section 11 of the Act reads as under :-

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“Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5 .”

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Thus, combined reading of the above provisions revealed that a marriage where one of the parties has not completed the age as envisaged under Section 5 (iii) of the Act is not void. The argument raised by the learned counsel for respondent No.3 that the marriage of petitioner No.1 and Ritu is void is thus without any basis.

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In these circumstances, it would be just and expedient and in the interest of justice to quash the criminal proceedings against the petitioners as the continuance of criminal proceedings would be nothing but an abuse

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Crl. Misc. No. M- 22516 of 2010 (O&M)

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of process of law. In case the criminal proceedings are allowed to continue, the matrimonial life of the prosecutrix would be ruined. Keeping in view the larger interest of justice, this petition is allowed and the FIR No.382 dated 3.11.2009, under Sections 363,366,216,120-B IPC, registered at Police Station Sadar Bahadurgarh, District Jhajjar and consequent proceedings, arising therefrom, are quashed.

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(SABINA) JUDGE

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December 8, 2010 Anand

Kapil Dev v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

Kapil Dev v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

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