IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2775 of 2011 1. SUNIL KUMAR SINGH, SON OF ARJUN SINGH. 2. ANIRUDH SINGH, SON OF BALI RAM SINGH 3. GEETA DEVI, WIFE OF NAGENDRA THAKUR. 4. MENKA KUMARI, DAUGHTER OF NAGENDRA THAKUR. 5. GUDDU DARZEE, SON OF LATE MUSTAKIM. 6. DHIRAJ KUMAR THAKUR, SON OF NAGENDRA THAKUR. ALL ARE RESIDENT OF VILLAGE- BIRA BANKAT, P.S.- BHAGWANPUR, DISTRICT- SIWAN. Versus 1. THE STATE OF BIHAR 2. BABAN RAI, SON OF LATE GOPAL JEE RAI, RESIDENT OF VILLAGE- BIRA BANKAT, P.S. - BHAGWANPUR, DISTRICT- SIWAN. ----------- 2 28.01.2011 Heard Shri Ajay Kumar Pandey, learned counsel appearing for the petitioner as also Shri Dashrath Mehta, learned counsel appearing for the State. The petitioner, who is accused in Session Trial No. 208/10, pending presently before the F.T.C Vth, Siwan, has prayed for, quashing the order dated 13.12.2010, by which, the learned Trial Judge was framing the charges under Section 366A of the I.P.C against the petitioners. It appears that a written report was filed by the father of Arti Kumari alleging that the accused persons i.e., the petitioners, have taken or enticed away his daughter, aged about 14 years, with some ulterior intention. On the basis of that written report dated 12.07.2009, Bhagwanpur P.S. Case No. 64/09 was instituted and investigation was undertaken which ended in submission of the charge sheet and ultimately passing 2 an order of cognizance as also the order of commitment of the case to the Court of Sessions and lastly, into the impugned order of framing of charges. By drawing the attention of the Court to two documents i.e., Annexure-2, the statement of Arti Kumari recorded under Section 164 Cr.P.C., and Annexure-3 the medical report submitted by the Board of Doctors after examining the said Arti Kumari, it was contended that the statement of the girl, Arti Kumari indicated that she had run out of her own sweet will from her father’s house to marry petitioner Dhiraj Thakur and further that she along with the said petitioner Dhiraj Thakur went to Indore in M.P. and married each other. The victim stated very fairly that she was intending to marry Dhiraj Thakur and had even expressed her desire to her parents but she was threatened to be murdered if she carried out her plans of marrying the said accused. It was contended that the allegation of “taking away” or “enticing away” was at all not constituted by the facts of the case and, as such, no offence under Section 366A was made out. It was further contended that in fact no offence was made out, because the victim girl was found aged about 17- 181/2 years by the Board of Doctors and that the age of the victim clearly brought out the facts of the case from the ambit of commission of an offence under Section 3 366A IPC. Shri Dasrath Mehta, learned counsel for the State has also supported the contention. The Supreme Court was considering the facts of almost similar nature in Varadrajan Vs. State of Madras, reported in AIR 1965 SC 942. In that case, the lady, said to be the victim of kidnapping, had made statement before the Trial Court that she had given a ring to the accused Varadrajan to come to a particular place. Accordingly, Varadrajan arrived at the desired place from where the victim and Varadrajan went to a particular shop to purchase some clothes and, thereafter, they went to a temple and got themselves married. In that case the victim was just above 16 years of age. The supreme Court, in the light of the facts of the case, was laying down the proposition as regards a case of kidnapping, which could be punishable under Section 366A IPC and a simple case of elopement. It was observed by the Supreme Court that the words “taking away” or “enticing away” which appears in Section 363 of the I.P.C. could mean, if it is shown that the accused had really taken or enticed away the lady aged about 18 years for any intent as could be evident from that Section, then only it could be an offence. While “taking away” envisages use of criminal force to move out the victim, “enticing away” 4 presupposes applying deceit or deceitful means to dupe a girl of the age below 18 years to go out of her lawful guardianship. “Taking away” or “enticing away” may also be constituted if facts of a case show that the accused had encouraged the girl by inducing her to come out of her lawful guardianship to be taken away by him. It was pointed out that the case of mere elopement has always to be distinguished from a case of kidnapping, if a lady even 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. Here, in the present case the age of Arti Kumari was 181/2 years. Medical Board, in fact, was reporting that Arti Kumari was aged about 17-181/2 years. It is well known principle of law that the age of the victim has to be calculated after taking into account 3 years by adding it so as to reach a conclusion. As regards the majority of a victim of an offence of 366A I.P.C., even if, I do not add 3 years to 181/2 years, still the age of the girl has to be held to be 181/2 years. In addition to the above, the victim was stating to the Court in her statement under Section 164 Cr.P.C. that she was desirous to marry accused Dhiraj Thakur from before and she had even asked her 5 family members to negotiate the marriage with the parents of the said accused. That not being done by her parents and she being threatened to be killed, she ran out of her parents’ house with the accused to go to another place so as to marrying him. Thus, what appears, from the statement recorded under Section 164 Cr.P.C. is that there was no allegation of “taking away” or “enticing away” nor was there any allegation of giving blandishment. I have already noted that the girl could very safely be said to be above 18 years of age. If this could be the fact situation, then the whole prosecution which has been initiated in Sessions Trial No. 208 of 2010, which is pending presently before F.T.C. Vth, Siwan, could be said to be an abuse of the process of the Court. It is well known that even while examining an order of the present nature, this Court would go into the merits of the whole prosecution and if it comes to the conclusion that the very prosecution was an abuse of process of the Court, it could very well quash it. Accordingly, I quash the whole proceedings of Session Trial No. 208 of 2010 including the order dated 13.12.2010. The petition is allowed. Amrendra/ (Dharnidhar Jha, J.)