In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-15170 of 2010 ..... Date of decision:2.7.2010 Gursharan Singh .....Petitioner v. State of Punjab .....Respondent .... Present: Mr. D.S. Pheruman, Advocate for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. Heard learned counsel for the parties. The petitioner seeks regular bail in a case registered against him for the offences under Sections 363, 366 and 376 IPC. The FIR in the case has been registered on the statement of Ramnit Kaur who is the mother of the prosecutrix. It is alleged by the complainant that her husband is serving in the Army and she has two daughters and one son. The eldest daughter is the prosecutrix aged 15 years. One daughter is younger to her aged 10 years and next is the son aged 8 years. The date of birth of the prosecutrix is 5.12.1994. On 9.12.2009, at about 7.00 a.m. the complainant Ramnit Kaur had gone in her neighbourhood and in her absence Gursharan Singh (petitioner) came to her house and induced the daughter of the complainant, that is, the prosecutrix for marriage and took her away on a scooter. Manjit Singh and Bhagwan Singh saw her going on the scooter. This had been done by Gursharan Cr. Misc. No.M-15170 of 2010 [2] Singh (petitioner), Gopi, Rajji, Taab and Simmi as also Kulwant Kaur in connivance with each other. They had abducted the daughter of the complainant on the pretext of marriage. It is alleged that the daughter of the complainant was a minor. They have been searching for her but she could not be traced out. Then on 16.12.2009, the sister's husband of the complainant, namely, Darshan Singh and the complainant were going to lodge the report that the Police met them. It was requested that action be taken. Learned counsel for the petitioner has referred to the statement of the prosecutrix which was recorded by Ram Singh, Inspector/SHO, Police Station Sadar, Gurdaspur on 14.2.2010. It is submitted that in terms of the said statement she has stated that the prosecutrix had been going to various places with the petitioner of her own free will. Besides, it is submitted that even if the prosecutrix is a minor she is reasonably mature and is in a position to know what is good and bad for her. Therefore, it cannot be said that the petitioner is liable for the offence. Learned counsel for the State has opposed the petition. It is submitted that in the medical report of the prosecutrix the doctor has opined that possibility of sexual intercourse cannot be ruled out in this case. Besides, it is submitted that the prosecutrix is a minor and the charges have been framed against the petitioner. I have given my thoughtful consideration to the matter. The statement of the prosecutrix recorded on 14.2.2010 by Ram Singh, Inspector/SHO, Police Station Sadar shows that the prosecutrix has stated that she was studying in the 10th class. The petitioner is of her village and Cr. Misc. No.M-15170 of 2010 [3] she had relationship with him for the last two years. On 8/9.12.2009 at about 12.30 a.m. she along with the petitioner went away on foot. At that time her mother (complainant) was in the house. They went to the railway station and thereafter to the bus stand. They could not find any conveyance. Therefore, they took a bus at 5.00 a.m. from Tibri Bye-pass and went to Gurudwara at Anandpur Sahib. After staying for two/three days, they went to Naina Devi Temple. After paying obeisance they returned back to Gurudwara Kiratpur Sahib. After staying for two days in the Gurudwara they returned back to Gurudwara Anandpur Sahib. Thereafter, they went to Delhi and stayed for two days in Gurudwara Bangla Sahib. After paying the obeisance at Gurudwara Sheesh Ganj they went to Gurudwara at Fatehgarh Sahib and then went to Gurudwara Dukh Nivaran Sahib, where they remained for four days and then they went to Gurudwara at Bahadurgarh. They stayed for one day at the said Gurudwara and then they went to Gurudwara at Mastuana Sahib where they stayed for two days. By that time, their money had exhausted and they returned to the village. She had gone at the asking of the petitioner. It is stated that till they remained together she did not have any physical relation with each other and the earlier statement was given in the Court and the same was due to the pressure of the relatives. The challan in the case was filed in the Court on 22.2.2010 for the offences under Sections 363 and 366 IPC. Later the offence under Section 376 IPC was also added. A perusal of the medical report shows that the doctor has opined that possibility of sexual intercourse cannot be ruled out. However, on examination of the prosecutrix no injury mark was seen on her chest, back, abdomen internal inner thighs and vertval Cr. Misc. No.M-15170 of 2010 [4] region. Besides, hymen was not torn. There was no bleeding on vaginal discharge seen. It is also recorded on PV – vagina admits one finger, vaginal walls were tight. The prosecution is to establish its case in the trial Court by leading evidence. At this stage, the nature of the allegations and the medical report is not to be appreciated. The fact that the prosecutrix is a minor is not such a ground to decline the concession of bail. The Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942 held that taking or enticing a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. However, when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have “taken” her out of the keeping of her lawful guardianship, that is the father in the said case. The Himachal Pradesh High Court in Kamal Singh v. The State of H.P., 1985 (1) Crimes 151 considered the case where there was some intimacy between prosecutrix and the appellant in the said case and the Cr. Misc. No.M-15170 of 2010 [5] prosecutrix was willing and active agent in her enticement and she accompanied the accused of her own accord while her parents were asleep. It was held that even though the prosecutrix was below 18 years would not be material. The accused therein was acquitted. The Delhi High Court in Bhagwan Singh and others v. State of another, 2007 (1) RCR (Criminal) 347 considered a case where a Muslim girl aged 17 years 3 months converted to Hinduism and married the accused. The FIR under Sections 363 and 366 IPC was registered by the father of the girl. It was observed that marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. In the circumstances, the petitioner on his furnishing personal bond and surety to the satisfaction of learned Chief Judicial Magistrate, Gurdaspur shall be admitted to bail. However, nothing stated herein shall be considered as an expression of opinion on the merits of the case and the learned trial Court shall decide the case on the basis of evidence and material as adduced before it. July 2, 2010. (S.S. Saron) Judge *hsp*