Crl. Misc. No. M-14418 of 2008 and other connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : August 28, 2009 Crl. Misc. No. M-14418 of 2008 (O&M) Balwinder Singh @ Binder son of Shri Parsan Singh .... Petitioner Vs. State of Punjab and others .... Respondents Crl. Misc. No. M-24623 of 2008 (O&M) Partap Singh son of Shri Parsan Singh and others .... Petitioners Vs. State of Punjab and others .... Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Ms. G.K.Mann, Advocate for the petitioners. Mr. Amandeep Singh Rai, AAG, Punjab, for respondent No. 1. Mr. J.S.Bains, Advocate, for respondent No. 2-complainant. Mr. H.S.Sangha, Advocate, for respondent No. 3. * * * AUGUSTINE GEORGE MASIH, J. By this order I propose to decide two petitions preferred under Section 482 of the Code of Criminal Procedure being Crl. Misc. No. M- 14418 of 2008 titled as Balwinder Singh @ Binder son of Shri Parsan Crl. Misc. No. M-14418 of 2008 and other connected case 2 Singh Vs.State of Punjab and others and Crl. Misc. No. M-24623 of 2008 titled as Partap Singh son of Shri Parsan Singh and others vs. State of Punjab and others as in both these petitions, the FIR, which is sought to be quashed, is the same and the petitioners in these petitions are co- accused in the FIR. Crl. Misc. No. 14418 of 2008 has been preferred by Balwinder Singh and as per the allegations in the FIR, the petitioner along with Partap Singh, Gurmeet Kaur, Sarabjeet Kaur, who are brother, mother and sister of Balwinder Singh (petitioners in Crl. Misc. No. M-24623 of 2008) had committed an offence under Sections 363,366, 376, 34 IPC. It is alleged by the complainant-respondent No. 2 Gurmeet Kaur that her minor daughter has been kidnapped by the above mentioned four accused. On the basis of these allegations, the above FIR was registered against the petitioners in both the above mentioned petitions and now they are praying for the quashing of the said FIR on the ground that Balwinder Singh has married with Sarabjeet Kaur-respondent No. 3, who is the daughter of the complainant Gurmeet Kaur-respondent No. 2. It has further been stated that out of the marriage, two children have born and petitioner Balwinder Singh and Sarabjeet Kaur are residing happily as husband and wife along with their two children in Chhattisgarh where the petitioner Balwinder Singh is working. As per the petitioners, they have been falsely implicated in the present FIR by respondent No. 2. As a matter of fact, Balwinder Singh had a love affair with the daughter of the complainant Gurmeet Kaur and both of them had eloped from their houses. They went to Chhattisgarh, where they performed their marriage in Arya Samaj, Kashi Nagar and in proof thereof, marriage certificate issued by Arya Samaj dated 26.02.2005 is appended as Annexure P-2 with the petition. After that, they approached Crl. Misc. No. M-14418 of 2008 and other connected case 3 the Collector/Marriage Officer, District Korba (Chhattisgarh) for registration of their marriage and their marriage was registered and a certificate to that effect was issued by the Collector/Marriage Officer dated 08.02.2006 (Annexure P-3). During the investigation, Sarabjeet Kaur-respondent No. 3 daughter of the complainant, was medico legally examined on 01.12.2007 and as per the said Medico Legal Report (Annexure P-4), it has come on record that an opinion has been given by the doctor that there is nothing to suggest that she cannot be subjected to sexual intercourse. It has further come on record in the statement of Sarabjeet Kaur in the medical report that she was having sexual intercourse for the last two years and she has given birth to a male baby one year back. There are no signs of any physical injury on any part of the body. On completion of the investigation, challan was presented against the accused, wherein Sarabjit Kaur, sister of Balwinder Singh was put in Column No. 2. According to the challan which has been presented, various documents were attached thereto and one of the documents was report of the Radiologist, who had given the opinion that the age of the prosecutrix is between 18-19 years (Annexure P-6). The charge has been framed and the case is now pending trial. At the time when the petitioner Balwinder Singh was arrested and Sarabjeet Kaur d/o Gurmeet Kaur-complainant was recovered from him, Sarabjeet Kaur had refused to go with her mother Gurmeet Kaur. On the basis of her refusal, she was sent to Nari Niketan at Jalandhar. When Balwinder Singh was released on bail in the FIR in question, he went to meet his wife at Nari Niketan, Jalandhar. Sarabjeet Kaur made a request that she wants to go to her matrimonial home with Balwinder Singh her Crl. Misc. No. M-14418 of 2008 and other connected case 4 husband and she did not want to stay in the Nari Niketan. Accordingly, Balwinder Singh requested the Superintendent of Nari Niketan, Jalandhar to release Sarabjeet Kaur his wife but she refused to do so. Faced with this situation, Balwinder Singh filed a Habeas Corpus petition being Crl. Writ Petition No. 313 of 2008, wherein he prayed for release of his wife Sarabjeet Kaur from the illegal custody of Nari Niketan, Jalandhar. The said writ petition came up for hearing after notice before this Court on 25.04.2008 and vide a detailed order taking into consideration all the facts and circumstances of the case, this Court came to the conclusion that detention of Sarabjeet Kaur is illegal and accordingly, a direction was issued to the Superintendent, Nari Niketan, Jalandhar to release Sarabjeet Kaur along with her minor child forthwith, so as to enable her to go wherever she wants to go. Copy of the order passed by this Court has been appended as Annexure P-7. It would not be out of way to mention here that during the proceedings before this Court in the above mentioned Criminal Writ Petition, this Court had directed the Additional Sessions Judge, Tarn Taran to record the statement of Sarabjeet Kaur to ascertain the desire of Sarabjeet Kaur. As per the said directions, the statement of Sarabjeet Kaur was recorded and on the basis of the said statement, order dated 25.04.2008 was passed by this Court and this Court had in detail gone into the aspect with regard to the fact that Sarabjeet Kaur, who was stated to be more than 16 years but was below 18 years of age, what was the effect of her marriage with Balwinder Singh under the Hindu Marriage Act. On consideration thereof, this Court had come to the conclusion that the marriage would not be void. On the basis of the above factual position, counsel for the petitioners contends that the continuance of the present FIR against the petitioners would be an abuse of process of Court in the light of the order Crl. Misc. No. M-14418 of 2008 and other connected case 5 dated 25.04.2008 (Annexure P-7) passed by this Court in Crl. Writ Petition No. 313 of 2008. She further contends that the petitioner Balwinder Singh, along with Sarabjeet Kaur his wife and children, is residing happily at Chhattisgarh and, therefore, in the light of the admitted position, as of now the FIR deserves to be quashed. Counsel for the petitioners submits that Sarabjeet Kaur wife of Balwinder Singh is present in the Court and the Court may itself enquire about the factual position. Accordingly, Sarabjeet Kaur wife of Balwinder Singh (as identified by the counsel for the petitioners) on being asked to submit the true factual position, she has reiterated the facts, which had been recorded earlier. She states that she, with her own free will and consent, had run away with Balwinder Singh as she wanted to marry him. They went to Chhattisgarh and they solemnized their marriage, their marriage was registered and thereafter she now has two children out of the wedlock. She states that she is residing there with her husband happily. On the other hand, counsel for the complainant submits that on the date when the FIR was recorded against the accused, Sarabjeet Kaur was a minor. He contends that the offences are clearly made out and, therefore, the FIR does not deserve to be quashed. He contends that challan has been presented and charge has also been framed and, therefore, the proceedings cannot be now terminated at this stage by quashing the FIR. I have heard the counsel for the parties and have gone through the records of the case. This is the case where as of now the petitioner Balwinder Singh is happily residing with his wife Sarabjeet Kaur-respondent No. 3 and Crl. Misc. No. M-14418 of 2008 and other connected case 6 having children out of the marriage, which they had performed after eloping. It is not in dispute that Sarabjeet Kaur-respondent No. 3 was more than 16 years of age when she had eloped with the petitioner Balwinder Singh. In the light of her statement, which has been made in the Court today, it would be in the interest of justice that the whole incident is given a decent burial so that Balwinder Singh and Sarabjeet Kaur may continue with their married life. This Court in Crl. Writ Petition No. 313 of 2008 vide order dated 25.04.2008 (Annexure P-7) delved into the intricacies and the judgments with the position in law with regard to their marriage under the Hindu Marriage Act and had come to the conclusion that the marriage was not void. Further in the light of the peculiar facts of this case, continuance of proceedings would not enhance the cause of justice and it would not be in the interest of justice to allow such proceedings to continue. The continuance of the proceedings in the FIR in question would not serve the interest of justice and, therefore, the quashing of the FIR and all consequential proceedings arising therefrom would be necessary to prevent abuse of process of law and the ends of justice would be served by passing such an order. In view of the peculiar facts and circumstances of the present case, the present petitions are allowed. FIR NO. 40 dated 27.02.2006 under Section 363, 366, 376, 34 IPC registered at Police Station Valtoha (Annexure P-1) and all consequential proceedings arising therefrom are hereby quashed. August 28, 2009 (AUGUSTINE GEORGE MASIH ) pj JUDGE Whether referred to Reporters.................Yes/No.