CRIMINAL WRIT No.433 OF 1999 In the matter of an application under Article 226 of the Constitution of India. 1. MUKESH KUMAR NANDAN SON OF BIRJNANDAN PRASAD 2. SWEETY DAUGHTER OF BRIJNANDAN PRASAD BOTH ARE RESIDENT OF NANDAN BHAWAN P.O. BANKIPUR, P.S. PIRBAHOR , DISTRICT PATNA 3. ARBIND KUMAR KHANDEWAL ALIAS ARBIND KUMAR SON OF DURGA PRASAD KHANDEWAL RESIDENT OF BHUTH NATH ROAD, P.S. AGAMKUAN, DISTRICT – PATNA. 4. SANJEEV KUMAR ALIAS SANJAY KUMAR SON OF RADHA CHARAN SINGH, RESIDENT OF ASHOK RAJ PATH, NEAR HOSTEL OF B.N. COLLEGE, PATNA 5. BINOY SHANKAR 6. RAJESH @ GUDDU BOTH ARE SONS SHIV KUMAR SHARMA 7. SARITA SHANKAR WIFE OF BINEY SHANKAR ALL RESIDENT OF PALANI KIRENA STORE, BIRLA MANDIR ROAD, PATNA Versus 1. STATE OF BIHAR 2. SR. SUPERINTENDENT OF POLICE, PATNA 3. SUPERINTENDENT OF POLICE, PATNA 4. OFFICER-IN-CHARGE PIRBAHORE P.S.PATNA 5. SMT. SHADAN IMAM @ RANI NANDAN DAUGHTER OF SAFDAR IMAM WIFE OF MUKESH KR. NANDAN, RESIDENT OF NANDAN BHAWAN P.O. BANKIPUR, P.S. PIRBAHORE, DISTRICT PATNA. 6. AASFA IMAM WIFE OF SAFDAN IMAM RESIDENT OF BAKARGANJ, BAJAYA GALI, P.S. PIRBAHORE (PATNA ) DISTRICT – PATNA -------------- For the petitioner :- Mr. Rajiv Ranjan, Advocate. For the respondents :- Rajesh Kumar Verma, Advocate. For the State :- Rajiv Kumar Singh, A.C. to G.A. - IV 2 ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA Shailesh Kumar Sinha, J The prayer in this writ application is for quashing of the First Information Report in Phirbahore P.S. Case No. 137 of 1999 registered on 15th of July 1999 for the offences under Section 364 of the Indian Penal Code against the petitioners by the mother of the victim namely, Aasfa Imam alleging kidnapping of her daughter on 14th of July 1999 by the accused persons of the said case who are petitioners in this writ application. Petitioner no. 1 is alleged to have married the daughter of the informant namely, Shadan Imam @ Rani Nandan (respondent no. 5). Respondent no. 6 who is the informant of the above police case did not appear, however, she appeared pursuant to the notice issued after admission of the case through her counsel who entered by filing through Vakalatnama, however, at the time of hearing, no one appeared on behalf of respondent no. 6. The aforesaid first information report was lodged by the mother of the victim alleging kidnapping of 3 her daughter on 14.06.1999 at about 3.30 p.m. when she left the house situated in Bakarganj Bajaj Gali, Patna Market, Patna, however, when she did not come back to her house till 15th of July 1999, the date when the informant given her Fardbeyan before the Inspector of Police-cum- Officer-in-charge, Phirbahore, Patna. It is alleged that the informant tried to locate her from the place of her relatives, however, she could not locate her daughter and as such, the first information report was lodged. Learned counsel appearing on behalf of the petitioners submit that petitioner no. 1 married the daughter of the informant and since both of them were major as such, they were free to take decision and in fact, they solemnized their marriage on 2nd of February 1999 through the rituals of the Arya Samaj and the certificate to the same was granted vide Annexure- 5. Later on, petitioner no. 1 and the respondent no. 5 marriage under the provisions of Special Marriage Act 1954. A certificate of marriage was also issued by the Marriage Officer, Patna vide Certificate no. 29/1999 dated 26th of May 1999. In the other words submission is that the petitioner no. 1 married the respondent no. 5 even before the date of the alleged kidnapping i.e. 14.06.1999. 4 A counter affidavit has been filed on behalf of the respondent no. 5 stating therein to the effect that she was a major and they solemnized the marriage on their free will and accord. Petitioner in support of the submission submits that they were major, and has drawn the attention of the court to the certificate dated 21st of September 1989 with respect of passing of matriculation examination by the petitioner no.1 wherein the date of birth is recorded at 2nd of January 1975. Similarly, petitioner has also brought on record the registration receipt issued by the Bihar School Examination Board, Patna in favour of respondent no. 5 mentioning the date of birth as 17th of September 1977 and the name of the school where she studied in Saint Joseph Convent High School, Mehandru. A transfer certificate dated 8th of July 1994 which was issued after the passing of Bihar School Examination in the year 1994 by Saint Joseph Convent High School, Mehandru. The date of birth recorded in the admission register of the said school was mentioned as 17th of September 1977. As such the conclusion is that both are major. Learned counsel for the petitioner further submits that since the day of the marriage of the petitioner with the respondent no. 5 both are living together as husband and wife with three children borne 5 out of the said wed lock, save and except for some period father of the respondent no. 5 forcefully taken her daughter and got her pregnancy terminated for which respondent no. 5 had filed a complaint case in court of Additional Chief Judicial Magistrate, Patna City vide Complaint Case no. 378 of 1995. Learned counsel for the petitioner has drawn the attention of the decision of the Apex Court in the case of Lata Singh Vs. State of U.P. reported in 2006 (5) SC cases 475 whereas in similar circumstances the FIR in question was quashed deprecating the criminal prosecution in which the Girl and Boy were major and both of them were belonged to different community. Learned counsel for the State submits that nothing more remains in the facts and circumstances of the case as brought on record by the petitioner as also the respondent no. 5. Considering the submission of the parties and on perusal of the first information report as also the documents with respect to the age of petitioner no. 1 as also of the respondent no. 5 coupled with the marriage certificate as contained in Annexures 5 and 6., it would appear that the petitioner no. 1 and respondent no. 5 solemnized the marriage even before the alleged date of occurrence, as the petitioner no. 1 and the respondent 6 no. 5 both are major and they have right to take decision to marry and the allegation of kidnapping could not be sustained in law and any prosecution pursuant to the aforesaid FIR by Pirbahore P.S. Case No. 137 of 1999 registered on 15th of July 1999 would be an abuse of process of the Court. Accordingly, the aforesaid first information report is quashed and petitioner no. 1 as also the respondent no. 5 are free to continue to live as a husband and wife without any hindrance on account of the aforesaid first information report . The writ application is accordingly allowed. Patna High Court Date 16th of December 2010 A.F.R/Jagdish ( Shailesh Kumar Sinha, J.)