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Judgment
S. K. Panigrahi, J
This petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed with a prayer to quash the order dated
14.10.2019 passed by the learned S.D.J.M., Bhadrak in G.R. Case No.434 of 2017 which arises out of Bhadrak Town P.S. Case No.53 of 2017 under
Sections 363,366,120(B) read with 34 of I.P.C. and all proceedings consequent thereto.
Shorn of unnecessary details, the facts of the present case are that the Opposite Party No.2 had lodged an FIR before the IIC, Bhadrak Town
Police Station on 02.03.2017 alleging that his daughter, one Rajalaxmi Behera aged about 16 years had been kidnapped by the Petitioner No.1. The
daughter of Opposite Party No.2 was studying +2 Arts in Bhadrak College and staying in Behera Mess, Januganja, Bhadrak. On 26.02.2017, the
daughter called the Opposite Party No.2 and told him that she will be visiting them that day. However, when she did not reach, Opposite Party No.2
started searching for her and found out that his daughter had left the mess at 8 A.M. with all her belongings. The Opposite Party No.2 doubted that
the petitioner No.1 had a role to play in this as when the petitioner No.1 was working as a Carpenter in Opposite Party No.2’s house, the
Opposite Party No.2 had discovered that his daughter and the petitioner No.1 were talking a lot and possibly were in a relationship. The Opposite
Party No.2 had then asked the other petitioners about the whereabouts of his daughter but upon receiving no satisfactory answer, he had filed the
F.I.R in Bhadrak Town P.S. During the course of investigation, the petitioner No.2 and petitioner No.3 were arrested and forwarded to court, but they
were then released on bail.
The learned counsel for the petitioners earnestly contended that the allegations in the FIR are false and have been lodged with an ulterior motive to
harass and humiliate the petitioners. It was submitted that the petitioner No.1 and daughter of Opposite Party No.2 were in a romantic relationship and
had eloped together. They have been married since 2018 as per Hindu rites and a male child has been born out of their wedlock in 2019. It was also
submitted that they have been living happily and due to the intervention of their well-wishers, a settlement has been arrived at between all the parties
wherein the family members of the daughter of Opposite Party No.2 have got the visiting rights to meet their grandchild. Opposite Party No.2 has also
agreed not to pursue this case any further and the parties have arrived at a settlement. It is also pertinent to note that during investigation, the victim,
i.e., the daughter of the Opposite Party No.2 appeared in the police station and her statement u/s.161 Cr.P.C. was recorded wherein she has
categorically stated that she had left with petitioner No.1 out of her own free will and nobody had kidnapped her.
Heard learned counsel for the State. The learned counsel for the State acknowledges and confirms the settlement arrived at between the parties.
Heard the rival parties of the case and perused the case diary to delve deeper into the case. It becomes imperative while dealing with a case
under Section 482 of the Cr.P.C. to remember that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it
obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power demands that its exercise is
sparing and only in cases where the High Court is of the clear view that continuance of the prosecution would be nothing but an abuse of the process
of law.
Section 482 of the Code reads as follows:
“Saving of inherent power of High Court-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may
be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.â€
 The Section envisages three circumstances in which the inherent jurisdiction may be exercised, namely:
(a) to give effect to an order under the Code,
(b) to prevent abuse of the process of the court,
 (c ) to secure the ends of justice.
Thus, it would suffice to state that though the powers possessed by the High Courts under the said provisions are wide but they should be exercised in
appropriate cases, i.e., ex debito justitiae, to do real and substantial justice for the administration for which the courts alone exist.
In the present case, it is deemed necessary to examine the position of law pertaining to how allegations of kidnapping have been dealt with when it
has surfaced subsequently that the victim has willingly and consensually chosen to accompany the accused, especially when a love relationship is
involved.
1 The Hon’ble Supreme Court in S. Varadarajan v. State of Madras (1965) 1 SCR 243 has held that:
“9. It must, however, be borne in mind that there is a distinction between “taking†and allowing a minor to accompany a person. The two expressions are
not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same
thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by
the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person.
In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a
case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the
minor to leave the house of the guardian.â€
Faced with a similar set of facts, the Hon’ble High Court of Delhi inC ourt on its own Motion (Lajja Devi) and Ors. v. State and Ors 2012
SCC OnLine Del 3937, held that:
“51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force,
coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. …â€
Furthermore, the Hon’ble High Court of Delhi in Manish Singh v. State 126 (2006) DLT 28, was also pleased to hold that:
“9. In these circumstances, continuation of criminal proceedings arising out of FIR No. 217/03 under section 363 IPC Police Station Sarojini Nagar would be
an exercise in futility. Besides, it would also be detrimental to the matrimonial life of the couple and of the infant. Lalita being around 17 years of age, on the
verge of majority, having reached the age of discretion, had accompanied Prabhu of her own volition without any kind of enticement or inducement or force from
anyone. There was, thus, no taking away or enticing of a minor out of the keeping of a lawful guardian. Essential ingredients of the offence of kidnapping are
missing. Reference may be made to S. Varadarajan v. State of Madras reported at 1965 Supreme Court 942 where the husband was held not guilty of kidnapping
when the wife, a college going girl on the verge of majority had left the parental home of her own accord, to marry him, without any threat or inducement. This is a
fit case for quashing of FIR in exercise of jurisdiction under Articles 226 and 227 of the Constitution. Accordingly, FIR No. 217/03 under Section 363 IPC P.S.
Sarojini Nagar and all the consequential proceedings arising thereto are quashed ...â€
Fruitful reliance may also be placed on Prawin Prakahar and Anr. v. State Govt. of NCT of Delhi and Anr. 2013 SCC OnLine Del 917 wherein
the Hon’ble High Court of Delhi was pleased to hold that:
“4. In all these cases the girls who had allegedly been kidnapped were minor on the date of kidnapping but were on the verge of attaining majority had
claimed that they had gone with the accused on their own accord. The Supreme Court as well as this Court had taken the view that offence of kidnapping is not
made out against the person who is accused of kidnapping a minor girl if the girl is on the verge of attaining majority and had reached the age of discretion on
the date of alleged kidnapping herself claims that she had gone with the accused on her own freewill and the accused had not induced her or played any fraud
upon her. So, the accused in the above referred case before the Supreme Court, who was convicted by the trial Court and which conviction was upheld by the
High Court also was acquitted by the Supreme Court. And in the two decisions of this Court (supra) even the FIRs were quashed. …
After giving my due consideration to all the aspects of the matter I have come to the conclusion that this petition deserves to be allowed. The judgments relied
upon by the learned senior counsel for the petitioners apply on all fours to the facts of the present case. The petitioner no. 2, who admittedly had reached the age
of discretion and was on the verge of attaining majority when she left her home and went with petitioner no.1, having not attributed any role to petitioner no.1 in
her going with him and marrying him it cannot be said that petitioner no. 1 had kidnapped her. …
This petition, therefore, succeeds. FIR no. 24/2011 registered against petitioner no.1 on 12th February, 2011 at Police Station Neb Sarai as also the
proceedings in respect of this FIR going on Court are quashed.â€
In Shaheen Parveen v. The State of UP 2015 SCC OnLine All 9489, the Hon’ble High Court of Allahabad has succinctly observed that:
“22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the
guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused,
no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing.
… In case the victim/prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's
house or even of telling her not to accompany him.
A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her,
cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act
that she had gone with the boy and got married to him. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are
required to be considered accordingly, and not in mechanical or technical interpretation.
Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the
accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused
person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian.
So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the
formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by
the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he
had at some earlier stage solicited or persuaded the minor to do so. (The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme
Court of India reported in (1965) 1 SCR 243 S.
In view of the facts and circumstances of the case noted above, the Court is convinced that the impugned proceedings have been initiated in abuse of process
of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal
proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their
discretion,
particularly when there is no evidence to indicate that the marriage is void.â€
Finally reference may also be made to Lawrence Kannandas v. State of Maharashtra 1983 SCC OnLine Bom 313 , wherein the Hon’ble High
Court of Bombay was pleased to observe that:
“55. Some observations would not be out of place. In order to come within the mischief of that section the accused must have either taken away the minor girl
or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions “taking†and
“enticing†evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from
the lawful custody of her guardians. Neither of the sections would have any application if the girl has, of her own accord, come out of the custody or come out of
the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place. To illustrate, the accused may go to the house of the
girl and may lift her from her house. He no doubt commits the act of kidnapping. But if the girl is of the age of understanding and has left her parental home of her
own accord and meets some person and requests him to accompany her to some place for her safety, the person accompanying the girl is not guilty of kidnapping
her. There may be cases in which the girl might leave the custody of her guardian and might in fact go to a third person and prevail upon him to take her to some
distant place. In such cases even if the person knew that the girl is a minor girl and knew the names of her parents, still if he has not initiated the girl's coming out
of the house, mere passive acquiescence on his part evidenced by his accompanying the girl to places would not necessarily spell the offence of kidnapping on his
part. It cannot be said in such cases that it is the accused who has “taken†away the girl from out of her parents' custody. If any authority is necessary for this
proposition the same is to be found in the judgment of the Supreme Court in the case of S. Varadarajan v. State of Madras, AIR 1965 SC 942 : (1965 (2) Cri LJ
33). In that case the girl who had reached the state of understanding had candidly admitted that on the morning of October 1st she herself telephoned to the
accused to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. …â€
The Hon’ble Supreme Court in Fazle Gaffar Khan v. State of W.B. (2000) 10 SCC 10, has also quashed criminal proceedingsÂ
involving charges under Section 366 of the I.P.C. against the appellant therein in the light of an affidavit filed by the girl stating that she was married
to the appellant-accused and that a child had been born out of the wedlock. This Hon’ble Court has relied on the Hon’ble Supreme
Court’s order in Fazle Gaffar Khan v. State of W.B. (supra) time and again to allow quashing of prosecution against the accused-husband when it
has come to light that the accused was bound in matrimonial wedlock to the alleged victim and a child has been born out of their happy wedlock as
was done in the case of Siba Mallik v. State of Orissa 2012 SCC OnLIne Ori 270.
As held by the Hon’ble Apex Court in Narinder Singh v. State of Punjab (2014) 6 SCC 466, it is well within the ambit of the powers of the
High Court as emulated under Section 482 of the Cr.P.C. to quash a proceeding if a settlement has been arrived at by the parties involved. The
Hon’ble Supreme Court in the aforesaid case has held that:
“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate
treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the
proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of
the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not
compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases
would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.â€
This Hon’ble Court in the case of Bhagaban Rout v. State of Orissa 2019 SCC OnLine Ori 387, has also previously observed that:
“6. Recently, Hon'ble Apex Court in the case of Rajiv Kumar Sharma v. The State of Uttar Pradesh in Criminal Appeal No.1599 of 2019 (arising out of SLP
(Crl.) No.155 of 2019) vide order dtd. 21.10.2019 reiterated as follows:â€
“The High Court despite this arrangement arrived at between the parties, however, declined to quash the proceedings. In our opinion, the High Court should
have taken note of the fact that the parties have amicably resolved all their differences and consciously chose to unconditionally drop all proceedings related to
marriage inter se including the criminal action initiated by the complainant-respondent No. 2.â€
Keeping the settlement between the parties having marital relevancy to a family having child, it is felt that the continuance of the proceeding in G.R. Case
No.1031 of 2012 would cause oppression and prejudice and for that the same is required to be quashed by invoking the jurisdiction under section 482 Cr.P.C.â€
After a careful perusal of the position of law, it is also noted that no such material has been produced before the Court, which would indicate
coercion, inducement or forceful act on the part of petitioner No.1, to conclude that the offence has been committed by him. Considering that the
parties involved have arrived at a settlement, the inherent jurisdiction of this Court, therefore, is warranted to be invoked in the given facts and
circumstances of this case as continuance of the proceedings would be a futile exercise and would run contrary to the intendment of Section 482 of
Cr.P.C.
Considering the law laid down by the Apex Court in the cases cited above, the aforesaid discussion, submissions made and taking into account a
holistic view of the facts and circumstances of the case at hand, this Court is inclined to entertain the instant petition. Accordingly, this Court
exercising it’s inherent power under Section 482 of Cr.P.C., allows this petition and quashes the order dated 14.10.2019 passed byÂ
learned S.D.J.M., Bhadrak in G.R. Case No.434 of 2017 arising out of Bhadrak Town P.S. Case No.53 of 2017 and all proceedings
emanating therefrom.
The CRLMC is accordingly disposed of.
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