IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.180 of 2010 RUBI DEVI Versus THE STATE OF BIHAR & ANR. ----------- 3. 20.7.2010. Heard. The petitioner is aggrieved by the order dated 20.10.2009 passed by the learned Chief Judicial Magistrate, Nawada in Warsaliganj P.S.Case No.59 of 2008, G.R.No.878 of 2008 by which he summoned the petitioner to stand her trial with other accused persons under Section 365/34 of the Penal Code. The statement of the victim Pammi Kumari recorded under Section 164 of the Cr.P.C. has been enclosed as Annexure-2 to the present petition. On perusal of the same what I find is that the girl herself came out of her parents’ house and went to Jamui by train to her brother Gautam’s house and stayed there. She gave a ring to accused Sunil who was residing in another place and called him who came after being requested by the girl to the house of the said Gautam and from there both the victim and accused Sunil travelled to Deoghar to get themselves married to each other. If the learned Magistrate reads the decision reported in AIR 1965 SC 942 Varada Rajan Vrs. State of Madras, he could find that the Apex Court has - 2 - distinguished between a case of taking or enticing away from that of simple elopement. It has been pointed out that if it is indicated by facts that the girl had really been taken or enticed away or has been given blandishments by the accused so as to encouraging her to come out of her parents’ house then it could be a case covered by the definition u/S 361 of the IPC. If it is found from the facts that the victim had herself walked out of her parents’ house and had called or requested the boy to come out of his house for getting married as appears in the present case which fact is akin to those of Varada Rajan(Supra),then no offence could be made out. There was no need for this court to point out these things to the court below but the court has done it purposely as orders of cognizance are being passed in spite of the facts not constituting the offence as in most of the cases the girl is found walking out of her house out of her own free will to go with the accused so as to living with him or getting herself married to him. As regards the facts of the present case which is narrated by the victim Pummi Kumari in her statement as Annexure-2 she does not implicate the - 3 - present petitioner as having taken any part in commission of the offence or having contributed by any means or any manner in taking away or enticing away of the girl. In fact, if the girl is at the verge of majority as could be the case in Varada Rajan(Supra) then the whole cognizance order and the whole prosecution may be a complete abuse of the process of the court. I am not quashing the whole prosecution because I do not have any satisfactory evidence before me so as to pointing out that the girl either was a major being aged 18 years or years of age around and that so just at the verge of majority. I leave it for the decision of the trial court to consider that aspect of the matter when the court was to frame the charges against the accused persons. As regards the complicity of the present petitioner and her summoning by order dated 20.10.2009, it appears based on no facts. The same is as such quashed as regards summong of the present petition. The summoning of other accused is not disturbed. The petition is allowed in the above terms to the indicated extent. B.Kr. ( Dharnidhar Jha, J. )