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Judgment
R.M. Chhaya, J.—By way of this application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants have prayed for quashing the First Information Report registered as CR No. I-69 of 2012 with Babra Police Station, District Amreli for the offence punishable under Sections 363, 366, 506(2) and 114 of the IPC. On bare perusal of the FIR, it transpires that the same came to be registered on 12.7.2012 and the same relates to the alleged incident which took place between 10.4.2012 to 11.4.2012. It is alleged in the FIR that on 10.4.2012, the first informant had gone out for some work of his tractor to a nearby village Dhasa from Village Babra. It is alleged that the first informant came in the early hours of 11.4.2012. The first informant has alleged that on 11.4.2012, the wife of the first informant informed him that daughter Jagruti has gone away somewhere in the night. It is further alleged that on inquiry, it was found that applicant No. 1, with false promise to get marry and with an intention to commit the alleged offence, has taken away the daughter of the first informant from his lawful custody. It is alleged that the daughter of the first informant Jagruti is aged about 16 years. It is further alleged that on requesting applicant No. 2 to give back the custody of the daughter of the first informant, the applicants have threatened the first informant.
Heard Mr. Vaibhav Vyas, learned advocate for the applicants, Mr. Alkesh N. Shah, learned Additional Public Prosecutor for the respondent State and Ms. Darshana Pandit, learned advocate for respondent No. 2.
Mr. Vaibhav Vyas, learned advocate'' for the applicants has taken this Court through the record of the petition and more particularly the contents of the FIR. It is contended that the FIR is based on the false basis namely that the daughter of the first informant is 16 years i.e. minor. Mr. Vyas, relying upon the certificate showing the correct birth date of the daughter of the first informant, submitted that the real birth date of Jagruti is 1.6.1992. It is submitted that applicant No. 1 and the daughter of the first informant Jagruti had cordial relations with each other and the same has resulted into a valid marriage between applicant No. 1 and the daughter of the first informant - Jagruti. It is further submitted that Jagruti and applicant No. 1 solemnized marriage at Varahi Mata Mandir, Dediyapada, District Narmada on 13.4.2012. It is further submitted that the allegations levelled in the FIR are without any basis and are not true as the same are alleged after 3 months from the date of the marriage of Jagruti with applicant No. 1. It is submitted that even the marriage between applicant No. 1 and daughter of first informant Jagruti is registered under the provisions of Gujarat Marriage Registration Act, 2002 on 13.4.2012. It is submitted that as on date, applicant No. 1 and the daughter of first informant - Jagruti reside together and live a happy marriage life. It is further submitted that Jagruti - daughter of the first informant has also filed an affidavit dated 26.10.2012 which is placed on record, whereby it is contended that the present FIR is filed after creating false record and projecting that the date of birth is 7.8.1996, whereas Jagruti was major when she voluntarily left the house of the first informant. Relying upon the said affidavit filed by Jagruti, it is submitted that the mother of Jagruti had approached this Court under Article 226 of the Constitution of India for a writ of Habeas Corpus being Special Criminal Application No. 2358 of 2012 which came to be rejected by Division Bench of this Court (Coram: A.L. Dave, J. as he then was and Paresh Upadhyay, J.) vide order dated 18.9.2012. It is, therefore, submitted that the FIR is nothing but an abuse of process of Court and law and the same is filed with a malafide intention to harass the applicants. It is, therefore, submitted that this Court may exercise its inherent jurisdiction to secure the ends of justice and quash the complaint as prayed for.
Per contra, Ms. Darshana Pandit, learned advocate for the first informant - respondent No. 2 has denied the contentions raised by Mr. Vaibhav Vyas, learned advocate for the applicants. It is submitted that though it is true that the daughter of the first informant and applicant No. 1 have married and stay together as on date, the date on which the daughter of the first informant left the house, she was a minor and therefore, the allegations levelled in the FIR are true and the petition deserves to be dismissed and this is not a fit case, wherein this Court would be pleased to exercise its inherent jurisdiction u/s 482 of the Code.
Mr. Alkesh Shah, learned APP for the respondent No. 1 - State has also adopted the arguments made by Ms. Darshana Pandit, learned advocate for the first informant - respondent No. 2.
No other or further submissions are made by the learned advocates appearing for the parties.
Before reverting to the contentions raised by the learned advocates appearing for the parties, it is worthwhile to note that Heeraben, it wife of the first informant approached this Court by way of a writ petition praying for a writ of Habeas Corpus, wherein the applicants as well as the daughter of the first informant were party respondents. The Division Bench of this Court vide order dated 18.9.2012 rejected the said petition and observed thus:--
Pursuant to the notice, respondents No. 4 and 10 are before us. We have talked to respondent No. 10 Jagrutiben, the corpus. She claims that she is not a minor and her date of birth is 1.6.1992. Even we find that she is both, physically and mentally, grown up and mature.
The case of the petitioners is that she is born on 7.8.1996, and in that context, they have relied on a certificate of birth issued by the Local Authority, but we notice that the said certificate of birth is on the basis of the entry made in the Register of birth by virtue of an order passed by the learned Judicial Magistrate and those proceedings are subsequent to the departure of corpus with respondent No. 4. When we talked to the petitioners, they said that the birth of corpus was never registered with the local authority and they have relied on a certificate of birth of daughter Jigu indicating date of birth to be 1.12.1992, and the contention is that petitioner No. 1 could not have delivered two children in a narrow gap of six months. However, contrary to this, we have on record, the xerox copy of ration card which indicates that the petitioners have two daughters and two sons. First daughter is named Shobha, second is Jagruti, that is the corpus, followed by two sons Umesh and Paras. In the complaint lodged by] the petitioner No. 2 Mohanbhai, it is specifically averred that he has two daughters and two sons. The second daughter is Jaguben, who is aged 17 years. This complaint was made on 11.4.2012. The stand of the petitioners is therefore inconsistent, and even if we go by his say, the certificate of birth relied upon purported to be in respect of the elder daughter, does not seem to be in respect of the elder daughter whose name is Shobhaben, whereas, the certificate indicates name Jigu which is matching to the name of corpus Jagruti whose name is entered in the ration card as Jagu. We are, therefore, more than satisfied that the corpus is not a minor.
Having talked to the corpus, she states that she has married to respondent No. 4 and is living a happy life and she does not want to go to the petitioners but would like to stay with her husband.
In light of above fact situation, this petition for habeas corpus cannot be entertained and stands dismissed. Notice discharged.
Considering the submissions made by the learned advocates appearing for the parties and on perusal of the FIR as well as documents which are annexed with the petition, it transpires that it is an admitted position that the first information was lodged by respondent No. 2 after a period of 3 months from the date of the alleged incident. As far as the allegations for the offence punishable under Sections 363, 366, 506(2) and 114 of the IPC are concerned, the same are mainly based on the aspect that the daughter of the first informant - Jagruti was a minor i.e. born on 7.8.1996. Considering the order passed by this Court, as observed hereinabove as well as considering the birth date certificate issued by the Principal of Nani Kundal Primary School it appears that the birth date of Jagruti is 1.6.1992. Cumulatively, therefore, it cannot be said that Jagruti was a minor when she left the house of respondent No. 2. Considering the averments made in the FIR, this Court is of the opinion that no prima facie offence punishable under Sections 363, 366, 506(2) and 114 of the IPC are culled out even if the FIR is taken at its face value.
On the contrary, as confirmed by the Division Bench of this Court, as observed hereinabove, and the facts of the case clearly establish the aspect that Jagruti was not a minor when the alleged incident took place. The affidavit filed by Jagruti before this Court clearly indicates that she was in love with applicant No. 1 and she a as a major, took a conscious decision to marry applicant No. 1. The fact, therefore, reveals that she left the parental house on her own will and prima facie, ingredients of Sections 363 and 366 are not made out from the FIR at its face value. Even if the FIR is read as it is, no offence punishable under Sections 506(2) and 114 of the IPC can be said to have been made out. It, therefore, clearly transpires that the FIR is frivolous and vexatious and the same is filed after 3 months only to wreck vengeance against the applicants. Considering the principles laid down by the Hon''ble Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, this is a fit case, wherein this Court should exercise its inherent jurisdiction u/s 482 of the Code to secure the ends of justice and quash the FIR. In addition to this, this Court is satisfied that the applicant No. 1 and daughter of the first informant - Jagruti had already married and as recorded by the Division Bench of this Court, as aforesaid, Jagruti has also expressed in unequivocal terms that she stays with applicant No. 1 as a wife and that they have married as per the Hindu rites and rituals. It is, therefore, eminently necessary to protect the marriage and any further consequences arising out of the FIR would be harassment to the applicants and would amount to abuse of process of Court and law. Resultantly, therefore, the application is allowed. The FIR bearing CR No. I-69 of 2012 registered with Babra Police Station, District Amreli an d the further consequential proceedings arising out of the aforesaid FIR are hereby quashed. Rule is made absolute.