Sonia Devi And Another vs State Of J&K And Another

1 Through the medium of instant petition, the petitioners are seeking quashment of challan bearing No.31/2018 dated 26.02.2018 titled „State vs

Deepak Anuragi’ pending disposal before the Court of learned Principal Sessions Judge, Kathua, that has arisen out of FIR No. 268/2017 for

offences under Sections 363/376 RPC registered with Police Station, Rajbagh, Kathua.

2 The case of the petitioners is that in the year 2017, they fell in love with each other and, accordingly, in the month of December 2017, they decided

to marry each other. Respondent No.2, the father of petitioner No.1 was not in favour of this relationship, as a result of which, the petitioners decided

to run away and on 27.12.2017, they entered into wedlock in Arya Samaj Mandir near Tis Hazari Courts, Delhi. It is averred that respondent No.2

lodged a false and frivolous FIR bearing registration No. 268/2017 with Police Station, Raj Bagh, Kathua alleging therein that petitioner No.2 had

kidnapped petitioner No.1, as a consequence whereof, on 30.12.2017, petitioner No.2 was arrested from Ghaziabad. After investigation of the case,

the impugned challan came to be filed before the Court of learned Principal Sessions Judge, Kathua and as per the challan, offences under Sections

363/376 RPC were found established against petitioner No.2.

3 On 04.06.2018, the statement of petitioner No.1, who is a prosecution witness in the aforesaid challan was recorded in which she supported the case

of petitioner No.2 and, accordingly, he was released on bail on 23.08.2018. It is further averred that on 15.10.2018, both the petitioners again

solemnized the marriage as initially at the time when they had performed the marriage ceremony, petitioner No.1 was a minor. It is averred that the

petitioners are residing together at Akhnoor as husband and wife and, as such, the impugned challan deserves to be quashed so that they are able to

spend their life as a married couple ina peaceful manner.

4 I have heard learned counsel for the parties and perused the material on record including the xerox copy of the trial Court record.

5 Before considering the legal issues involved in this case, certain facts which emerge from the record are required to be noticed. Admittedly,

petitioner No.1 was a minor at the time she eloped with petitioner No.2. Her date of birth is 07.10.2000, and she had eloped with petitioner No.2 in

December, 2017 which means that at that time, her age was 17 years. The marriage certificate issued by the Arya Samaj Vaidik Mandal, Tis Hazari

Courts, Delhi shows that the marriage between the petitioners had taken place on 27.12.2017 and at that time also, petitioner No.1 was less than 18

years of age. The second marriage certificate issued by Arya Samaj Janipur, Jammu is dated 15.10.2018 and at that time, both the petitioners were

major. In her statement recorded before the Court during trial of the case, petitioner No.1 has deposed that on 22.12.2017, she, of her own accord,

accompanied petitioner No.2 to Delhi because she wanted to enter into a wedlock with him. She has further stated that at Delhi, they solemnized

marriage in Arya Samaj Mandir and remained in each other‟s company as husband and wife.

6 On the basis of aforesaid established facts, learned counsel for the petitioner has contended that neither offence under Section 363 RPC, nor

offence under Section 376 RPC is made out against petitioner No.2 and, as such, the proceedings pending before the Court of learned Principal

Sessions Judge, Kathua are liable to be quashed.

7 Per contra, learned AAG for respondent No.1 has contended that the age of petitioner No.1, the prosecutrix was less than 18 years at the relevant

time, as such, she had not attained the age of consent. On this ground, it is urged that offences of kidnapping and rape are made out against the

accused (petitioner No.2). The learned AAG has further contended that even if it is assumed that marriage between the petitioners is valid, still then

Exception 2 to Section 375 RPC would not save petitioner No.2 from the prosecution because the aforesaid provision, so far as it relates to a girl child

below 18 years, has been struck down by the Supreme Court in the case of IndependentThought vs.Union of India, (2017) 10 SCC 800

8 The question which falls for determination is with regard to the offences, if any, that are made out againstpetitioner No.2. Admittedly, at the time of

the occurrence, petitioner No.1 was a minor and, as such, she had not attained the age of giving consent either in respect of accompanying petitioner

No.2 or in respect of having sexual intercourse with him. In view of this position, it has to be seen whether or not, the offences under Sections 363 and

376 RPC regarding which petitioner No.2 is facing trial before the Court of learned Sessions Judge, Kathua, are made out against him.

9 So far as the offence of kidnapping which is punishable under Section 363 of RPC is concerned, the same is defined under Section 361 of RPC

which reads as under:

“Kidnapping from lawful guardianship â€" Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen

years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound

mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship"".

10 From a perusal of aforesaid position, it appears that the offence of kidnapping has four essentials:

(i) Taking or enticing away a minor or a person of unsound mind;

(ii) Such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female;

(iii) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind and

(iv) Such taking or enticing must be without the consent of such guardian.

11 The expression “take†would mean to cause to go, to escort or to get into possession, whereas the expression “entice†means an act of

the accused by which the person kidnapped is induced of his or her own accord to go to the kidnapper. In order to prove the ingredients of taking or

enticing away a minor, the prosecution has to show that the accused had some active part in the minor leaving his/her lawful guardian‟s house.

12 In the instant case, the prosecutrix (petitioner No.1 herein) while making her statement before the learned trial Court, during the trial of the case,

categorically stated that she left her house out of her own accord and joined the company of the accused (petitioner No.2 herein). A minor may not be

competent to give her consent to her taking, but a minor is certainly competent to leave the protection of her guardian on her own accord.

13 The Supreme Court in the case of S. Vardarajan vs. State of Madras, AIR 1965 SC 942 has held that when a minor leaves her father‟s protection

knowing and having capacity to know the full import of what she is doing and voluntarily joins the accused person, the accused cannot be said to have

taken her away from the keeping of her lawful guardian.Thus, the position remains that petitioner No.1 left her parent‟s guardianship on her own

accord only because her guardian was not approving the proposed marriage. In these circumstances, the girl even if she was under 18 years of age,

would not be said to have been kidnapped by petitioner No.2 (the accused). The petitioners are stated to have been married and it is not the case of

the prosecution that the marriage was solemnized against the will of petitioner No.1. The offence of kidnapped is, therefore, not made out against

petitioner No.2.In the instant case, petitioner No.1 has clearly stated before the trial Court that she left her home on her own accord and, thus the

offence of kidnapping is not made out against petitioner No.2.

14 So far as the offence of rape is concerned, though after the investigation of the case and on the basis of statement of the prosecutrix (petitioner

No.1) recorded under Section 164 A of Cr.P.C, it was found that she has been subjected to forcible sexual intercourse by the accused (petitioner

No.2), yet while making her statement before the Court during the trial, the prosecutrix has resiled from her statement recorded under Section 164-A

Cr.P.C. She has categorically stated that she had accompanied petitioner No.2 out of her own accord in order to enter into wedlock with him. She has

not stated anything about having sexual intercourse, either forcible or consensual with petitioner No.2. Even the medical evidence on record is not

suggestive of sexual intercourse between the petitioners. Thus, offence of rape under Section 376 RPC is also not made out against petitioner No.2.

15 Having regard to the aforesaid discussion, particularly the fact that the petitioners have entered into wedlock and they are living as husband and

wife for the last so many years coupled with the fact that petitioner No.1 has in her statement recorded before the trial Court categorically exonerated

petitioner No.2, the continuance of criminal proceedings against him before the trial Court would be an abuse of process of law.In fact,continuance of

trial against petitioner No.2 in respect of charges for offences under Section 363 and 376 RPC would be like flogging a dead horse. Since the

proseutrix has not supported the prosecution case, as such, no amount of evidence on behalf of prosecution can prove the aforesaid charges against

petitioner No.2.

16 For the foregoing reasons, the instant case is found to be a fit one where this Court must exercise its power under Section 561- A of J&K

Cr.P.Cto quash the criminal proceedings against petitioner No.2. Accordingly the petition is allowed and FIR No.268/2017 for offences under Sections

363/376 RPC registered with Police Station, Rajbagh, Kathua and the criminal challan arising out of the same which is pending disposal before the

Court of learned Principal Sessions Judge, Kathua is hereby quashed.