Surajit Patra and Another vs State of Orissa

A.S. Naidu, J.—This Criminal Misc. Case has been filed invoking the inherent jurisdiction of this Court with a prayer to quash the entire proceeding initiated on the basis of FIR lodged in Rourkela Sector-3 P.S. registered subsequently as G.R. Case No. 961 of 2001 and pending before the S.D.J.M., Pan posh, Rourkela.

The FIR was lodged on 3-6-2001 by the present opposite party No. 2, father of Petitioner No. 2 Sunita Patra '' Mohanty, alleging that - Petitioner No. 1 Surajit Patra along with his father and brother on 12-4-2001 took away his daughters Sunita when she had been to college and that in spite of his best efforts he could not trace out her daughter Sunita. On the basis of the said FIR, Rourkela Sector - 3 P.S. Case No. 46 of 2001 was registered which was subsequently converted to the aforesaid G.R. Case..

The S.D.J.M. on the basis of the charge-sheet filed took cognizance of offences under Sections 363/366/368/34 I.P.C against Petitioner No. 1 Surajit Patra, his brother and his father Bhagabat Patra.

Opposite Party No. 2, father of Sunita had also filed OJC No. 6196 of 2001 before this Court on the basis of the self-same allegation with a prayer for issuance of a Writ of Habeas Corpus for production of his daughter Sunita. In consonance with the direction issued by this Court, Petitioner No. 1 Surajit Patra and Petitioner No. 2 Sunita and the father and brother of Petitioner No. 1 appeared in Court personally. The present opposite party No. 2, the Petitioner in the Writ Petition also appeared personally in Court. In course of hearing, an affidavit sworn to by Sunita was filed wherein she stated on solemn affirmation that she was twenty years old and she had married Surajit on 27-3-2001, the marriage having taken place at a religious institution at Surali. The Marriage Certificate, the Notarial Certificate and a joint affidavit sworn before the Notary in support of their marriage were also annexed to the affidavit dated 8-10-2001 filed by her. In the affidavit she further affirmed that she was in love with Surajit and that though her father initially agreed to her marriage with Surajit, subsequently he wanted to give her in marriage to one Dhira who was an uneducated person and addicted to introxication. Coming to know such fact, she declined to marry Dhira and entered into the wedlock with Surajit. The allegations made by her father that she was kidnapped and was confined at a secret place were stoutly denied by her. It was asserted in the affidavit that she wanted to stay with her husband whom she had married out of her own accord and free will. Sunita was identified by her father in Court. In presence of her father, some questions were put to Sunita in Court which she replied by writing in Oriya in separate slips which were kept on record. According to Sunita, she was born on 7-3-1983. She had married Surajit on 27-3-2001 and on the date of her marriage she was twenty years old and that she was residing with her husband out of her free will. Nobody had forced her and she wanted to stay with her husband and the members of her in-law''s family.

Mr. R. Mohapatra, who was also the counsel for present opposite party No. 2, the Petitioner in the Writ Petition, submitted before the Division Bench that at the time he was deprived of the custody of her daughter, she was a minor and a report was accordingly lodged with police which was repudiated by the accused persons stating that Sunita was major when she married the present Petitioner No. 1.

The Division Bench disposed of the Writ Petition by order dated 8�10-2001 observing as follows:�

In view of the fact that the girl is a major and married and wants to stay with her husband and the members of her in-law''s family, No. further action is called for in this Writ'' Application.

The present proceeding u/s 482 Code of Criminal Procedure has been initiated by Petitioner Nos. 1 and 2 who are husband and wife respectively. In support of their marriage, relevant documents are also filed before this Court.

Mr. D. Nayak, Learned Counsel for the Petitioners, submitted that Petitioner No. 2 had wilfully and out of her own accord and without being coerced by any quarter married Petitioner No. 1. She was a major on the date of her marriage. Both Petitioner No. 1 and Petitioner No. 2 are leading a blissful married life. They are also blessed with a child. In view of the aforesaid facts, continuance of the criminal proceeding will not only bring a dent in their peaceful married life, but will also greatly prejudice them.

Mr. Mohapatra forcefully submitted that when Petitioner No. 2 Sunita was kidnapped by Petitioner No. 1 Surajit and Ors. she was a minor. The offences having been committed when Petitioner No. 2 was a minor, this Court should not entertain the present Petitioner or quash the criminal proceeding which would legalise the illegal acts of the accused persons: It was also submitted by Mr. Mohapatra that the findings of the Division Bench in the aforesaid Writ Petition to the effect that Petitioner No. 1 and Petitioner No. 2 were married and that Petitioner No. 2 wanted to stay with her husband were contrary to the materials on record and beyond the scope of the said Court and are not binding. I am afraid, such submission has absolutely No. legs to stand. As would be evident from the order passed in the Writ Petition as quoted above, all the parties including the informant-opposite party No. 2 were present in Court. In fact the informant father identified Petitioner No. 2 Sunita. In his presence and in open Court not only Petitioner No. 2 expressed that she had married Petitioner No. 1 out of her own accord and without being coerced by any quarter, but also unambiguously stated that she was a major on the date of her marriage and she wanted to stay with her husband and not with her parents. An affidavit was also sworn to by her and filed in Court inter alia stating on solemn affirmation that she was never kidnapped nor kept at any.secret place and that she was all along staying wilfully with her husband, Petitioner No. 1. Even otherwise, the incident, according to opposite party No. 2, took place on 12-4-2001. But the FIR was lodged two months after, i.e. on 3-6-2001. The date of birth of Petitioner No. 2 as disclosed by her is 7-3-1983. Thus she had become a major on the date of the occurrence. Being a major, she has a right to go anywhere and live with anyone (see Payal Sharma alias Kamla Sharma Vs. Superintendent, Nari Niketan, Agra and others, ).

On the basis of the aforesaid facts and circumstances and in view of the statements made by Petitioner No. 2 herself before a.Division Bench of this Court and the affidavit filed, Sunita appears to be a major. She asserts to have voluntarily gone with Petitioner No. 1 and also asserts that she has married Petitioner No. 1. Opposite Party No. 2 though appeared has not filed any counter affidavit repudiating any of the averments made in the petition. As stated earlier, the Petitioners have not only entered into mortality, but have been also blessed with a child. According to me, continuance of the criminal proceeding will not only cause a dent in their blissful married life,'' but will also ultimately prejudice all the parties and will amount to abuse of the process of law. Relying on the ratio of the decision of the Apex Court in Fazle Gaffar Khan v. State of W.B., 2000 SCC (Cri.) 686, which has been followed in a catena of decisions of this Court, I have No. hesitation to allow this Criminal Misc. Case and quash the proceedings of G.R. Case No. 961 of 2001 pending in the Court of the S.D.J.M., Pan posh, Rourkela and I order accordingly.

The Criminal Misc. Case is disposed of.