CRIMINAL MISCELLANEOUS No.13734 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------------- 1. Bishwanath Pal, Son of Late Lakhan Pal 2. Chandrika Pal, Son of Bishwanath Pal 3. Subhas Prasad, Son of Bishwanath Pal, All residents of Village- Daraila, P.S. Guthani District-Siwan --------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Om Prakash Tiwary, Son of Late Haripujan Tiwary,resident of VillageDaraila, P.S. Guthani, District-Siwan ------------------- Opp.Parties. -------------------- For the petitioners: Sri Chandramaul Pd.Singh, Advocate For Opp.Party no.2: Sri Awadhesh Kumar Pandey, Advocate For the State: Md. Ansarul Haque, A.P.P. ------------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 2.2.2000 passed in Trial No.1169 of 2000 arising out of Guthani P.S. Case No.8 of 1998. By the said order, the learned Magistrate has taken cognizance of offences under Sections 366A and 368 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 on 19.12.1997 filed a complaint in the court of learned Chief Judicial Magistrate, Siwan , which was numbered as Complaint Case No.1152 of 1997. In the complaint petition, it was alleged that on 27.11.1997 in the morning at about 4.00 A.M., his daughter, Nitu Kumari , aged about 16 years left for attending call of nature , but she did not return. On enquiry, the 2 complainant learnt that his co-villager Subhash Pal ( petitioner no.3) and Chandrika Pal ( petitioner no.2) both sons of petitioner no.1 and three unknown persons had kidnapped his daughter and taken her away in a Maruti Car. It was disclosed that petitioner nos.2 and 3 were doing job in Surat and in the first week of November they had come to their house and in the night of 27.11.1997 they were seen roaming near the house of the complainant. The complainant stated that both the accused persons had illegally kidnapped her daughter. The complainant had also gone to Surat in search of his daughter, but he did not find either his daughter or two petitioners. On enquiry, petitioner no.1, who is father of petitioner nos. 2 and 3, had threatened the complainant for dire consequences. On the aforesaid allegation, the complaint was filed. Subsequently, the complaint was referred to the police under Section 156(3) of the Code of Criminal Procedure for its registration and investigation and, accordingly, F.I.R. vide Guthani P.S. Case No.8 of 1998 was registered on 2.2.1998 for the offences under Sections 366A and 368 of the Indian Penal Code. While investigation was going on, the victim appeared before the Magistrate and thereafter it was directed to conduct an enquiry in respect of age of Nitu Kumari. In the meanwhile, the Police submitted chargesheet . Accordingly, the learned Magistrate after submission of the chargesheet abandoned the enquiry and took cognizance of offences under sections 366A and 368 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, all the petitioners approached this Court by filing the present petition. On 25.6.2001, while issuing notice to Opp.Party no.2, this Court directed that in the 3 meantime further proceeding in the court below in Guthani P.S. Case No.8 of 1998, Tr.No.1169 of 2000 against the petitioners shall remain stayed. Subsequently, on 24.7.2001 the case was admitted for hearing .Despite service of notice, the informant/Opp.Party no.2 did not appear and accordingly ,by order dated 24.07.2001 this Court admitted the present case for hearing and it was directed that till final disposal of the case, entire order of this Court dated 25.06.2001 will continue. The order of stay is still continuing. 4. While admitting by an order dated 24.07.2001 this Court again directed for issuance of notice to Opp.Party no.2 and thereafter, Opp.Party no.2 entered his appearance through Sri Awadhesh Kumar Pandey, learned Counsel. 5. At the time of hearing, on 13.7.2010 a preliminary stand was taken by learned counsel for the petitioner that right from the date of occurrence, the victim girl is residing with petitioner no.3 as legally wedded wife and both petitioner no.3 and victim had now become father and mother of their child. It was submittewd that both victime and petitioner no.3 since their marriage are residing at Surat ( Gujrat). It was submitted that even without going into the merit of the case, this Court keeping in view marital life of the victim and petitioner no.3 may exercise inherent jurisdiction and quash the entire criminal proceeding as well as order of cognizance. According to learned counsel for the petitioners, the marriage of petitioner no.3 and the victim girl was solemnized in the month of December, 1997 and since last 13 years, they are leading their peaceful marital life. After noticing the arguments advanced by the learned counsel for the petitioners , Sri 4 Awadesh Kumar Pandey, learned counsel appearing on behalf of Opp.Party no.2 requested the Court to adjourn the case for three weeks so that in the meanwhile he may get instruction on the point as to whether the victim girl was still residing with petitioner no.3 or not. Accordingly, the prayer was allowed and it was directed to list this case after three weeks to enable the learned counsel for Opp.Party no.2 to file an affidavit on the aforesaid point. Subsequently, on 20.8.2010, when the matter was taken up for hearing, Sri Awadhesh Kumar Pandey, learned counsel appearing on behalf of Opp.Party no.2 informed the Court that despite his best efforts , he could not contact his client and, as such, the required affidavit was not filed nor he could get any instruction in the light of the order dated 15.07.2010. 6. On the point of the merit of the case, Sri Chandramauli Prasad Singh, learned counsel appearing on behalf of the petitioners has argued that it was not at all a case of kidnapping and no offence under Sections 366A and 368 of the Indian Penal Code was applicable in the facts and circumstances of the present case. Learned counsel for the petitioners has submitted that the daughter of the complainant/informant had voluntarily gone along with petitioner no.3 due to the reason that since long both had fallen in love with each other and, as such, the daughter of the informant/complainant on her own volition went along with petitioner no.3 and at Surat they solemnized their marriage. Learned counsel for the petitioners has referred to Annexure-7 to the present petition, which is a memorandum of marriage dated 1.12.1997, i.e. the date of marriage, issued by the Registrar of the Marriage, Bardoli. While referring to Annexure-7, learned counsel for the 5 petitioners has submitted that on the date of marriage, the victim girl, Nitu Om Prakash Tiwari, had already completed 18 years of age. It has further been submitted that immediately after noticing the fact that the complainant had filed a complaint, which was referred to the police and the police registered Guthani P.S. Case No.8 of 1998 on 2.2.1998, the victim girl, who is wife of petitioner no.3 voluntarily appeared before the court of learned Chief Judicial Magistrate and requested for recording her statement under Section 164 of the Code of Criminal Procedure. The victim girl had also filed a petition along with Certificate of Matriculation Examination to show that her date of birth was 20.3.1979 and she was a major. Sri Singh, learned counsel for the petitioners has further submitted that when the victim girl appeared before the learned Chief Judicial Magistrate and requested for recording her statement under Section 164 of the Code of Criminal Procedure, the learned Magistrate summoned the Police Officer and with a view to get the identity of the victim girl, wife of petitioner no.3 verified and handed over victim girl to the custody of the police. Thereafter, the police recorded statement of the victim girl under Section 161 of the Code of Criminal Procedure, in which the victim girl categorically disclosed that she had married with petitioner no.3 voluntarily and with her own volition and wishes and she was also under way ( pregnant). She alleged that her parents were against her marriage and, as such, they had filed a false case. The police after verifying the identity of the victim girl and recording her statement under Section 161 of the Code of Criminal Procedure produced her before the learned Magistrate for the purpose of recording her statement under Section 164 of the Code of 6 Criminal Procedure and thereafter the learned Magistrate recorded her statement under Section 164 of the Code of Criminal Procedure. The learned counsel for the petitioners has referred to Annexure-3 to the present petition, which is a photo copy of the certified copy of the statement recorded under Section 164 of the Code of Criminal Procedure of the victim girl, namely, Nitu Kumari D/O Om Prakash Tiwary ( Opp.Party no.2). It has been submitted that at the time of recording her statement, the victim girl had disclosed her age as 20 years . She also disclosed that she had passed Matriculation Examination in the year 1994 and as per Matriculation Certificate, her date of birth is 20.3.1979. The statement under Section 164 Cr.P.C. of the victim girl was recorded on 7th October, 1998. She deposed before the learned Magistrate that she had married with petitioner no.3 on 1.12.1997 according to her own volition. She also disclosed that in the night on 27.11.1997 she herself had left the house of her parents and along with petitioner no.3 had gone to Bardoli . She asserted that she herself had called petitioner no.3. With the said marriage, her parents were very unhappy and they were threatening to kill the victim also. She also stated that she conceived due to wedlock with her husband and she was carrying six months foetus in her womb. Thereafter, as per direction of the learned Magistrate, the victim was got medically examined by the doctors and as per doctors report, her age was assessed in between 17 and 18 years. It has been argued that the learned Magistrate had also found the age of victim girl as 20 years and she was carrying pregnancy. The fact of pregnancy was also noticed and thereafter the learned Magistrate ordered to release the victim girl on 7 execution of her personal bond of Rs.10, 000/- and she was released on 7.10.1998. It has been clarified that the victim had appeared before the Chief Judicial Magistrate on 6.10.1998. It has been argued that since the informant was disputing the age of the victim girl, the learned Magistrate had initially directed for conducting an enquiry and during that enquiry, evidences were brought on record by both the parties. However, in the meanwhile since the police submitted chargesheet , the learned Magistrate has passed the impugned order. On the aforesaid ground, it has been submitted that the order of cognizance as well as the entire proceeding in the present case is liable to be set aside and allowing the proceeding in the case, i.e. Guthani P.S. Case No.8 of 1998 will amount to allowing abuse of the process of the court. 7. Sri Awadhesh Kumar Pandey , learned counsel appearing on behalf of Opp.Party no.2 in absence of any instruction was not in a position to make any submission. Sri Md. Ansarul Haque , learned Addl.Public Prosecutor has appeared on behalf of the State. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The petitioners have brought on record the orders passed by the learned Chief Judicial Magistrate, which is sufficient to indicate that after noticing the fact that an F.I.R. was registered against the husband of the victim, Nitu Kumari on 6.10.1998, appeared before the learned Magistrate in Guthani P.S. Case No.8 of 1998 and requested for recording her statement under Section 164 of the Code of Criminal Procedure. She was, thereafter, handed over to the police for verification of her identity and other facts. Subsequently, on the next date she was produced by the police before 8 the learned Magistrate for recording her statement and thereafter her statement under Section 164 of the Code of Criminal Procedure was recorded by the learned Magistrate on 7th October,1998 vide Annexure- 3 to the present petition, in which she categorically falsified the allegation and story of kidnapping . She also produced the relevant materials to show that even on the date of occurrence, she was a major and, as such, the story of kidnapping was itself falsified. Besides this, even in the order dated 2.2.2000, whereby the learned Magistrate has taken cognizance of offences, the learned Magistrate has noticed her statement recorded under Section 164 of the Code of Criminal Procedure as well as other materials. However, keeping in view the fact that the police had submitted chargesheet, the learned Magistrate has taken cognizance of offences. Since the statement made on behalf of the learned counsel for the petitioners at bar that from the date of marriage i.e. 1.12.1997, Nitu Kumari ( victim) was living with her husband , who is petitioner no.3, peacefully and both have become father and mother of their child, which was not controverted by Sri Awadhesh Kumar Pandey, learned counsel appearing on behalf of Opp.Party no.2,an inference can be drawn that assertion of learned counsel for the petitioners is correct and, as such, allowing the present prosecution against the petitioners will amount to allowing abuse of the process of the court. The fact and circumstance of the present case makes it clear that the case was instituted against the petitioner not fairly and honestly but maliciously. 9. Accordingly, it is a fit case for exercising inherent jurisdiction in favour of the petitioners and, as such, the order of 9 cognizance dated 2.2.2000 passed in Trial No.1169 of 2000 arising out of Guthani P.S. Case No.8 of 1998 and also entire criminal proceeding in the said case are hereby set aside and the petition stands allowed. Patna High Court, Patna Dated : the 30th September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.