JUDGMENT :

(Shampa Dutt (Paul), J.) :

1. The present revision has been preferred praying for quashing of the proceeding, in G.R Case No.969 of 2016, arising out of Goghat Police Station Case No.288 of 2016 dated 28.05.2016 under Sections 363/366(A) of the Indian Penal Code, 1860 pending in the court of the learned Additional Chief Judicial Magistrate, Arambagh, Hooghly.

2. The petitioner's case is that the opposite party no.2 lodged a written complaint before the Officer-in-Charge of Goghat Police Station which was registered as Goghat Police Station Case No.288 of 2016 dated 28.05.2016 under Sections 363/366(A) of the Indian Penal Code, 1860 (G.R. 969 of 2016) pending in the court of the learned Additional Chief Judicial Magistrate, Arambagh, Hooghly. The learned court took cognizance and proceeded in the matter against the petitioners.

3. The allegation, inter alia, as follows:-

“On 25.05.2016 at around 8.00 PM, the minor daughter of the opposite party no.2 namely Silpa Murmu, aged about 17 years and 5 months was eloped by the petitioner, with a false promise of marriage. On 26.05.2016 at around 3.00 pm the opposite party no.2 came to know about the where about of his daughter by calling one Kartik Majhi having mobile phone No.9091577568.”

4. Mr. Niladri Sekhar Ghosh, learned counsel for the petitioner has submitted that the opposite party has initiated the instant case out of sudden anger and misunderstanding. At the relevant point of time, it was not in his knowledge that his daughter was in a relationship of love affair with the petitioner.

5. It is submitted that at the time of alleged time of incident the alleged victim was seventeen and half years old as claimed. Although this is not the age of attaining majority but admittedly she attained the age of consent and discretion.

6. That alleged victim is presently his wife. The petitioner is a mason by profession and after marriage he was working at Muradabad, Uttar Pradesh, with his wife being the alleged victim and she has given birth to a child namely Punit Samanta. Presently they are living as a happily married couple.

7. The petitioner submits that he had true affection towards the daughter of the opposite party and wanted to lead his life with her.

8. Upon plain reading of the complaint, it would show that not a single averment that has been made in the complainant by the opposite party no.2 discloses either a cognizable offence or a non-cognizable offence, yet the Police Personnel went beyond the letters of law and authority and initiated the present criminal case against the petitioner, which is arbitrary and illegal and accordingly, the petitioner should be discharged from all allegation.

9. The petitioner states that, even if the entire allegation is accepted to be true, then also it will not be an offence under the Indian Penal Code, as he never had any ill intention towards her. Their intimacy was out of true love and affection towards each other. Admittedly, before their marriage, the petitioner and the alleged victim, both being adults, had the right to take a decision of their future life.

10. The petitioner and the daughter of the opposite party no.2 are living together as husband and wife after their marriage following the Hindu rituals, which is not an offence, by any stretch of imagination.

11. It is stated that if he had any wrong intention of using the daughter of the defacto complainant and leaving her astray, he would never play the role of a committed husband.

12. The petitioner's case is that although the age of seventeen and a half is not the age of majority but admittedly the victim attained the age of consent and discretion.

13. Section 2(d) of the Protection of Children from Sexual Offenses Act, 2012 lays down:-

“Section 2. …………………………

(d) "child" means any person below the age of eighteen years;”

14. The offence alleged against the petitioner is under Section 363/366(A) of the Indian Penal Code.

15. Section 363 of the Indian Penal Code, lays down: