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2018 Supreme(Bom) 1013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Prasanna B. Varale, Vibha Kankanwadi, JJ.
Ashok Dhondiba Kale – Applicant
Versus
State of Maharashtra, Through the Investigation Officer, Police Station Sailu and Anr. – Respondents
Criminal Application No. 7038 of 2016
Decided On : 16-07-2018
For the Applicant :Mr. M. P. Tripathi, Advocate
For the Respondent:Mr. S. D. Ghayal, Addl. Public Prosecutor, Mr. P. B. Gapat, Advocate, Mr. N. S. Kadam, Advocate
Headnote:
Indian Penal Code, 1860 - Sections 363, 366A - Criminal Procedure Code, 1973 - Section 482 – Investigation – FIR - Respondent resident - Respondent is his daughter - Respondent had lodged report with Police Station Parthian regarding missing respondent - It was contended in said report that daughter is missing since - Daughter had left house pretext to go to school - However did not return – Thereafter informant respondent had gone he received information that present applicant accused had taken respondent - Respondent had talked with applicant on mobile - But thereafter informant lodged report saying that applicant has taken away his minor daughter on false assurance of marriage – Held, As regards Section Indian Penal Code is also considered above said fact about marriage between accused and victim is required to be considered - In almost similar case in Writ Petition it was observed that instant case FIR reveals that Petitioner and Respondent were in love with each other and physical relationship between them was consensual - However at relevant time Respondent was minor - After she attained majority she got married to Petitioner - Now they are living together - Such circumstances if prosecution is allowed to be continued against Petitioner it will bring discord in their matrimonial relationship and they will be unnecessarily required to face consequences of prosecution which is not at all likely to end into conviction - Consequently no fruitful purpose will be served by continuing with prosecution of Petitioner - These observations are equally applicable here - Applicant and respondent are happily married - Taking into consideration said circumstances and in light of principles laid down by Apex Court in decision of Singh State of Punjab there is no impediment in quashing criminal proceedings - Powers of this Court Code Criminal Procedure is required to be used in interest of justice in order to avoid abuse of process of law - Possibility witnesses turning hostile during trial ca not be ruled out - Case is made out for quashing entire proceeding before learned Sessions Judge - Hence following Order – Order accordingly
Vibha Kankanwadi, J.
1. By this criminal application under Section 482 of Criminal Procedure Code, the petitioner is seeking quashment of the first information report and the proceedings in Special Sessions Case No. 32 of 2014 pending before Sessions Court, Parbhani.
2. The respondent No. 2 is a resident of Sailu. Respondent No. 3 is his daughter. Respondent No. 2 had lodged report with Sailu Police Station, Tq. Sailu, Dist. Parbhani regarding missing of the respondent No. 3 on 4.7.2013. It was contended in the said report that the daughter is missing since 9 AM of 3.7.2013. The daughter had left the house under the pretext to go to school. However, did not return. Thereafter, the informant respondent No. 2 had gone to Pune on 8.8.2013 and he received the information that the present applicant accused had taken respondent No. 3 at Pune. Respondent No. 2 had talked with the applicant on mobile. But, thereafter the informant lodged the report saying that the applicant has taken away his minor daughter on the false assurance of marriage. The said report came to be registered as CR No. 117/2013 for the offences punishable under Sections 363, 366A of Indian Penal Code during the course of investigation, the accused was arrested on 19.9.2014 and the charge-sheet came to be filed for the under Sections 363, 366A, 376 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012. In the statement before the Investigating Officer, the daughter had stated that she had developed love for the accused and out of said love and affection she left her house and guardianship of her father on 3.7.2013 and joined the applicant at Parbhani. Thereafter they went to Pune from Parbhani. Accused and the daughter performed marriage on 25.7.2013 in Ganpati Mandir, Alandi, Dist. Pune and thereafter there was sexual relationship between the accused and her. At the time of her statement she was pregnant. The applicant further says that when bail application was filed by the accused, at that time, the respondent No. 2 and 3 had appeared and given consent to the release of applicant. It was reiterated that the accused and the daughter had solemnized marriage. Thereafter the bail was granted. In spite of that the charge-sheet was filed. Thereafter the respondent No. 3 has delivered a female child from the said wedlock. In view of exception to Section 375 of Indian Penal Code offence punishable under Section 376 is not maintainable. Further invoking of POCSO which is newly enacted it does not include “wife below 18 years” under the definition of “child”. Other offences are also not made out and therefore, the applicant has prayed that the first information report in the said matter to quash and set aside so also the entire proceedings.
3. Respondent No. 2 and 3 have filed their affidavits. They both have reiterated the fact that there was marriage between the applicant and respondent No. 3, child has been delivered by respondent No. 3 on 2.12.2014. The applicant accused is taking care and maintaining mother and the child satisfactorily and therefore, the respondent No. 2 has stated that he has no grievance against the petitioner.
4. Rejoinder has been filed by the applicant stating that respondent No. 3 has initially taken education in one Savitribai Badrinarayan Nutan Prathamik School, Sailu and as per the school report her birth date is 2.1.1998. She was more than 15 years and 7 months on the day of alleged offence and therefore, the proviso to Section 375 of Indian Penal Code is applicable.
5. Heard learned Advocate Mr. M. P. Tripathi for applicant, learned Addl. Public Prosecutor Mr. S. D. Ghayal for State and Mr. P. B. Gapat and Mr. N. S. Kadam Advocates for respondent No. 2 and 3. In order to cut short we would like to say that it has been submitted on behalf of the applicant and the respondent No. 2 and 3 that though the first information report was lodge and at that time respondent No. 3 was minor; but, taking into c
