Madan Lal vs State Of Rajasthan

Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. claiming the following reliefs :-

"In Criminal Misc. Petition No.4142/2018

It is, therefore, most respectfully prayed that this misc. petition may kindly be allowed and FIR No.63/2017 of Police Station Khiwara (pali) may kindly be quashed and set aside.

In Criminal Misc. Petition No.4272/2018

It is, therefore, most respectfully prayed that this misc. petition may kindly be allowed and impugned order dated 05.11.2018 passed by Child Welfare committee, Pali may kindly be quashed and set aside and custody of Badami @ Vidhya may kindly be given to the petitioner in the capacity of her husband."

The petitioner Madan Lal solemnized marriage with Badami @ vidhya. The girl's father respondent No.3 submitted a complaint under Section 363 and 366 of the IPC upon which the present FIR was lodged. The petitioner and his wife Badami moved a criminal misc. petition earlier bearing No.3935/2018 which was finally disposed of by this Court on 02.11.2018 by passing a following order :-

"1. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of FIR No.63/2017 of P.S. Khinwara, District Pali lodged qua them for offence under Sections 363 and 366 IPC.

Counsel for the petitioner submits that petitioners herein are living together as husband and wife after solemnization of marriage 1 ½ years prior and they have a child born out of the wedlock, therefore, the offences alleged in the FIR are not made out.

Counsel for the petitioner submits that the petitioner wants to submit a representation alongwith all the relevant documents before the concerned investigating authority to redress the issue.

Learned Public Prosecutor assures this Court that if the petitioner submits a representation along with all the necessary documents before the concerned investigating authority within a period of ten days from today, then the same shall be considered and decided strictly in accordance with law, before completing the investigation.

In light of the aforesaid assurance given by learned Public Prosecutor, the present misc. petition is disposed of with a direction to the concerned investigating authority that in case the petitioner submits a representation along with all the necessary documents before it within a period of ten days from today, then the same shall be considered and decided before completing the investigation, strictly in accordance with law and as per the assurance given by the learned Public Prosecutor.

In the peculiar facts of the case, it would be appropriate to grant protection from arrest to the petitioner as it will be a waste of energy and resources of the Police Department to run after the accused to complete the related investigation and without protection it would also cause un-necessary hardship to the accused, who deserves a basic opportunity of explaining his case before the Investigating Authority without fear of arrest. The Investigating Officer, however, shall have the liberty of custodial interrogation after giving 15 days' notice before arrest if required. In the interest of justice and the facts and circumstances noted by this Court, the limited protection is justified. Therefore, if during the investigation, the concerned investigating authority needs to arrest the petitioner, then the petitioners shall be given 15 days' notice before making such arrest. The petitioners shall be required to join the investigation. The petitioners shall be at liberty to approach this Court again, in case need arises."

The investigating officer and girl Badami @ Vidhya along with official of Balika Grah Jodhpur are present before this Court.

It is an admitted fact between the parties that date of birth of Badami is 16.03.2001, and therefore, after about two and half months, she will become major. However, Badami Devi appears before this Court in the custody of the official of Balika Grah Jodhpur along with her child a baby boy, who is of the age of about two months. It is not disputed that the child has been borne out of the said wedlock of the petitioner Madan Lal and Badami.

Learned Public Prosecutor along with investigating officer present before this Court also do not dispute the fact that the baby boy was borne out from the said wedlock and Badami shall be major in about two and half months. Since the earlier order was passed by this Court keeping in view the fact that consent of both the parties was writ large on the face of it and the matrimony has also resulted into a birth of a son, therefore, it was a fit case where the case should have been closed by the investigating officer. However, the concerned investigating officer submits in his explanation that since the girl is yet two and a half months away from becoming major, therefore, he could not close the case.

After hearing counsel for the parties and perusing the record of the case, this Court observes that girl Badami and the petitioner Madan Lal who had earlier preferred the joint petition and now this petition has been preferred by her husband Madan Lal have married each other and since the marriage has been consummated, a baby boy has been borne to them.

In these circumstances continuing of FIR would not be appropriate and even though the girl is two and half months away from attaining the majority, it is a fit case looking into the peculiar facts to exercise the jurisdiction of 482 of Cr.P.C.

In light of the above observations, S.B. Criminal Misc. Petition No.4142/2018 is allowed and the FIR No.63/2017 lodged at Police Station Khirwara, District Pali is quashed and set aside. Consequently S.B. Criminal Misc. Petition No.4272/2018 is allowed and Balike Grah Authorities are directed to release the custody of Badami to the petitioner Madan Lal.