3. It has been pleaded that in abuse of process of the law and process of the Court, impugned proceedings have been initiated. In the course of investigation, petitioner No.1 has been found to be nineteen years as per her medical examination. In the statement given by petitioner No.1 under Section 164 CrPC (Annexure-5), it has been made evident that petitioner No.1 was not kidnapped; rather got married to the accused.
4. It has been pleaded by learned counsel for the petitioners that the case is squarely covered by judgment dated 23.7.2015, rendered by a Division Bench of this Court in Writ Petition No.3519(M/B) of 2015 Shaheen Parveen and another versus State of U.P. and others.
5. In Shaheen Parveen's case (supra), the following (relevant portion) has been held :
"6. Petitioner no.-2 is accused of committing an offence under Sections 363/366 of the Indian Penal Code.
7. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision.
8. "Kidnapping from lawful guardianship" has been defined under Section 361 of the Indian Penal Code. The provision when extracted reads as under:-
"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.
Explanation: - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception: - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
9. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.
10. At the time of considering whether on admitting the allegations made in the F.I.R., offence has been committed or not, the ingredients of the offence are required to be considered, in context of the evidence collected during the course of investigation.
11. In the peculiar facts and circumstances of this case, the Court has minutely examined the facts that have emerged on investigation of the case.
14. The Investigating Agency is concluding that at the point in time when the victim left in the company of the accused, she was a few months less than 18 years, which is the relevant age mentioned in Section 361 of the Indian Penal Code, above extracted. Clearly, the Investigating Agency is taking a hypertechnical view of the issue. The other relevant facts and circumstances of the case are being ignored.
15. The issue whether the victim was kidnapped or abducted is required to be examined in context of the statement of the prosecutrix recorded under Section 164 Cr.P.C.
16. If the statement of the prosecutrix, above noted, is taken into account, it becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused/sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the prosecutrix, without the consent of the guardian/respondent no. 4. In the case in hand, it is the case of the prosecutrix herself that she of her free will went with Sarfaraj, lived with him, wants to live with him and is expecting his child. Element of coercion and enticement by Sarfaraj is absent, although consent of the guardian had not been taken.
17. The writ court, being a court of equity, must take into consideration all relevant factors brought before it to deliver substantial justice. Equity justifies bending the rules, where fair play is not violated, with a view to promote substantial justice. A writ court cannot contemplate any limitation on its power to deliver substantial justice. It has to be ensured that a consumer of justice gets complete justice, instead of going into the nicety of law. Under the circumstances, the court cannot be a mere onlooker if injustice is likely to be caused.
18. Petitioner No.1 the victim/prosecutrix would be the best witness, rather the only witness of commission of offence under Sections 363/366 I.P.C. Surely, the victim will not support the prosecution case, as has been made evident by her in her statement, recorded in the course of investigation under Section 164 Cr.P.C., and therefore the trial would result in acquittal. During course of trial, considerable number of man hours would be wasted in prosecution/ defending and judging the case. No useful purpose would be served and the entire exercise of trial would be in futility because the victim has declared that she was not victimised or kidnapped.
19. The facts that have emerged from the record make it evident that the impugned criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent no.-4) has not accepted the marriage of her daughter with petitioner No.2.
20. In case, despite the evidence that has come on record, as noted above, proceedings are not quashed, petitioner no.-2 would be required to face criminal charges and undergo the agony of a trial.
21. We have also taken into account the fact that in case the petitioner No.2 is allowed to be prosecuted, the matrimonial life of petitioner No.1/the alleged victim would be disrupted. Her husband would be incarcerated and there would be no one to take care of her child, who is yet-to-be-born.
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. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. 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.
23. 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.
24. 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.
25. 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. Varadarajan versus State of Madras).
26. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years. The said petitioner had attained age of discretion, however, not age of majority. Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him.
27. The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed hereinabove.
28. 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.
30. In view of above, petitioner No.2 cannot be said to have committed offence either under Section 363 I.P.C. read with Section 361 I.P.C. or under Section 366 I.P.C.
31. In the above noted facts and circumstances, we are of the view that ends of justice would be served if the petition is allowed."
6. Issue notice to serve respondent No.4, returnable on 16.9.2016.
7. Learned counsel for the State, in view of the medical evidence and statement of prosecutrix recorded under Section 164 CrPC has not been able to dispute that the case would be covered by Shaheen Parveen's case (supra).
8. We direct Superintendent of Police, Unnao to take notice of the facts and circumstances, review the entire investigation conducted till date and if necessary get the matter further investigated in the light of Shaheen Parveen's case (supra) and file his affidavit as to under what circumstances, despite no evidence of kidnapping having come on record, the petitioners are proceeded against.
9. Till the next date of listing, petitioners shall not be taken in custody.
10. Further proceedings shall remain stayed, till the next date of listing.
11. List on 16.9.2016."
3. In deference to contents of paragraph 8 of the order above extracted, it appears that Superintendent of Police, Unnao directed further investigation as is evident from the order passed by Superintendent of Police, Unnao placed on record as Annexure Nos.SCA-5 appended with the short counter affidavit. It appears that further investigation has been conducted. The relevant evidences have been placed on record. The evidences available on record have been reviewed.
4. Allegedly, the accused committed offence under Sections 363 and 366 I.P.C. Ingredients of Sections 363 and 366 I.P.C. have been considered by this Court in judgement dated 23.7.2015, rendered by a Division Bench of this Court in Writ Petition No.3519 (M/B) of 2015 : Shaheen Parveen and another Vs. State of U.P. And others. The following is the relevant portion :-
"7. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision.
8. "Kidnapping from lawful guardianship" has been defined under Section 361 of the Indian Penal Code. The provision when extracted reads as under:-
"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.
Explanation: - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception: - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
9. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.
10. At the time of considering whether on admitting the allegations made in the F.I.R., offence has been committed or not, the ingredients of the offence are required to be considered, in context of the evidence collected during the course of investigation.
XXXXXXX
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. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. 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.
23. 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.
24. 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.
25. 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. Varadarajan versus State of Madras)."
5. The petition has been filed on the strength of the pleadings that petitioner no.1, who is daughter of respondent no.4 fell in love with petitioner no.2 and wanted to marry him. Respondent no.4 was not ready to accept the marital arrangement, rather no.4 threatened the petitioners by saying that if petitioner no.1 did not break the relationship with petitioner no.2, they would be killed.
6. Petitioner no.1 did not relent and left the house of the complainant/the parental house and eloped with petitioner no.2 of her free will for solemnising the marriage. Marriage was solemnised on 26.4.2016. In evidence of the fact that they are married, document Annexure No.2 has been placed on record.
7. In view of the fact that the petitioners felt threatened from the family of petitioner no.1, the petitioners approached this Court by way of filing a joint petition vide Writ Petition No.9791 (M/B) of 2016 : Smt. Basanti and another Vs. State of U.P. and others. The plea taken by the petitioners in the said petition, appears to be to the effect that the petitioners have attained age of majority and have married of their free will, however, members of their families are not accepting the marriage and under the pressure of the family members, police are harassing them. This court vide order dated 5.5.2016 directed the respondents not to interfere in the peaceful matrimonial life of the petitioners, unless criminal proceedings are initiated.
8. De hors the repeated stand of petitioner no.1, impugned proceedings were initiated at the instance of respondent no.4 vide impugned F.I.R. with the allegation that petitioner no.1 is 16 years of age and had been enticed/induced by petitioner no.2 to go with him.
9. After registration of the impugned F.I.R., the petitioners have approached this Court for quashing of the F.I.R.
10. Petitioner no.1, Basanti has filed her affidavit in endorsement of the facts pleaded in the writ petition. Petitioner no.1 Basanti is the prosecutrix and the victim of offence, allegedly the kidnappee. By virtue of this petition, Basanti has again reiterated her stand that she had not been enticed or induced by petitioner no.2, rather she willingly got married to petitioner no.2. The age given by petitioner no.1 in the affidavit is 20 years.
11. Alongwith the petition, the petitioners have placed on record medical examination report of petitioner no.1, according to which petitioner no.1, the prosecutrix, has been found to be 19 years of age. The petitioners have also filed statement given by petitioner no.1 in the course of investigation under Section 164 Cr.P.C. As per the statement, the prosecutrix/the alleged kidnappee has stated that her marriage was scheduled with Nar Singh. They were both in love with each other, however, her parents refused to get them married and therefore she left her parental home of her free will. Nar Singh met her near Kali Mitti and both got married in a Mandir and have been living as husband and wife. Petitioner no.1 has clearly stated that she got married to petitioner no.2 of her free will after running away from her house.
12. Perusal of the counter affidavit indicates that the investigation has been conducted in context of age of the prosecutrix so as to consider whether offence under Section 363 I.P.C. has been committed or not. The fact that petitioner no.1 has attained age of majority, has been endorsed by the investigating agency while relying on medical certificate, Annexure No.SCA-3. Age of petitioner no.1 has been found to be 19 years.
13. So as to consider whether petitioner no.1 had been kidnapped or not, statements of the prosecutrix have been recorded under Section 161 Cr.P.C. as also under Section 164 Cr.P.C. Both the statements have been placed on record as Annexure No.SCA-1 and 2. Investigating agency has concluded in further investigation that petitioner no.1 had not been kidnapped.
14. It has been stated in the counter affidavit in paragraph 15 that although the investigating officer proposes to file a police report in terms of judgement rendered in Smt. Shaheen Parveen's case (supra), however, the court below refused to return the chargesheet. In paragraph 16 of the affidavit, it has specifically been stated that the chargesheet which had earlier been filed needs to be cancelled, however, only photo copy of the chargesheet has been returned by the court concerned and there is a legal impediment in finalising the final report.
15. We have taken note of the law as declared by the Hon'ble Supreme Court of India in Rajiv Thapar and others versus Madan Lal Kapoor : (2013)3 SCC 330. In the said judgement, the following has been held in the relevant portion :-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecutions/ complainants case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/ complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." (Emphasised by us) X X X X X
38. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratorys report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.
39. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge.
40. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.
41. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds."
(Emphasised by us)
16. A perusal of the above extracted portion of the judgement would indicate that the High Court can invoke jurisdiction to quash proceedings at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C. at the stages referred to hereinabove, would have far reaching consequences inasmuch as, it would negate the prosecutions/complainants case, without allowing the prosecution/ complainant to lead evidence.
17. Under the circumstances, we are of the considered opinion that there is no impediment of stage of proceedings at which the High Court can interfere and consider quashing of proceedings if it would prevent abuse of the process of the law and process of the court, and secure the ends of justice.
18. Perusal of the above extracted portion of the judgement rendered in Rajiv Thaper's case (supra) would also indicate that the High Court can take into account the material produced by the accused in his/their defence. The material should be based on sound, reasonable and indubitable facts ; the material should be such as would rule out and displace the assertions contained in the charges levelled against the accused ; the material such as would disprove and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant.
19. In the case in hand, the relevant evidences have already been collected as noticed above. The plea of kidnappee herself is that she has not been kidnapped. Under the circumstances, we have no hesitation in holding that case of the petitioners is covered by judgement rendered by the Hon'ble Supreme Court of India in State of Haryana and others versus Ch. Bhajan Lal and others AIR 1992 SC 604. The Hon'ble Supreme Court of India in the said judgement has laid down certain conditions that may be considered by the court for quashing the criminal proceedings. The following has been held in Para 108 :
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(Emphasised by us)
20. The facts and circumstances noted above make it evident that the ingredients of Sections 363, 366 I.P.C. are not satisfied. In this regard, at the cost of repetition, we again refer to judgement rendered by this Court in Shaheen Parveen's case (supra). The case of the petitioners is covered by the judgement rendered in Ch. Bhajan Lal's case (supra), in particular sub paras 3 and 7 which have been emphasised by us in the extracted portion. Investigating officer has also come to the conclusion, though in further investigation, that offence has not been committed.
21. It would be absurd to conclude that petitioner no.1 had been kidnapped, although petitioner no.1 has been repeatedly saying before different forums, including this court, that she had not been kidnapped, rather is married to petitioner no.2.
22. We are of the considered view that continuance of proceedings shall be an exercise in futility. Petitioner no.1 the alleged kidnappee is the best witness and the only victim of the incident of kidnapping. It is the case of petitioner no.1, that she had not been kidnapped, rather had gone with petitioner no.2 of her own accord. In such circumstances, prosecution of the case would result in wastage of precious court time.
23. We are of the view that criminal proceedings have been initiated at the instance of respondent no.4 in malacious prosecution because her daughter petitioner no.1 refused to abide by directions of parents in not getting married to petitioner no.2. It is evident that the impugned proceedings have been initiated in abuse of the process of the law and process of the court. The ends of justice would be secured by putting an end to this lis.
24. Sub Inspector Uttam Singh Rathore of Police Station Bangarmau, District Unnao is present in court and also endorses this fact. Shri Rathore has further informed the court that husband and wife( prosecutrix) are happily living in their matrimonial home.
25. Considering the facts and circumstances of the case in context of the law as noted above, we hereby allow this petition. Impugned F.I.R./Case Crime No.118 of 2016, under Sections 363, 366 I.P.C., Police Station Bangarmau, District Unnao ( Annexure No.1) and all consequent proceedings are hereby quashed.
26. Let a copy of this order be forwarded to the Sessions Judge, Unnao for onward transmission to the trial court. Let a copy of this order be also forwarded to Station House Officer, Police Station Bangarmau, District Unnao.
27. Senior Registrar of the Court to ensure compliance.
Order Date : 16.9.2016.
Shukla.