High Court
Case Details
AB 2366/2013 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL This application under Section 438 of the Code of Criminal Procedure, 1973, has been filed by the accused, namely, Ditumoni Hazarika seeking pre- arrest bail ap prehending his arrest in connection with Narayanpur PS Case No. 45 of 2013 (GR N o. 425 of 2013) under Section 366(A) of the Indian Penal Code. 2.
Legal Reasoning
Heard Mr. FKR Ahmed, learned counsel for the petitioner as well as Mr. B B Gogoi, learned Additional Public Prosecutor for the State of Assam. I have al so perused the FIR, victim’s statement given under Section 164 Cr.P.C. and the o ther documents, regarding age of the victim girl, annexed with the bail applicat ion. 3. The FIR was lodged on 24.3.2013 by the father of the victim girl allegin g that his 17 year old daughter was kidnapped by the accused. The name of kidnap per came to the knowledge of the father in the morning and within hours the FIR was lodged. 4. Mr. Ahmed submitted that the victim girl was produced before the I.O. by the father of the accused himself. Thereafter the victim girl was also produced before a Judicial Magistrate whereupon her statement under Section 164 Cr.P.C. was recorded. According to the learned counsel in the said statement the victim girl has candidly admitted that she had eloped with the accused after long affai r and after eloping they have married each other. In the bail application the da te of marriage and the system in which both the victim and the accused have marr ied has not been disclosed. 5. Mr. Ahmed, learned counsel for the petitoner further submitted that as per the birth certificate issued by the Government of Assam the victim girl was 17 years 10 months on the date of alleged kidnapping and as per medical jurispru dence the victim girl was on the verge of attaining majority. The learned counse l further submitted that in view of the adult age of the victim girl and also in view of the fact that the victim girl had voluntarily eloped with the accused n o offence of kidnapping is made out. 6. Admittedly the victim girl did not attain the age of 18 years on the d ate of the incident i.e. on 23.3.2013 since the victim girl was born on 23.5.199 5. It has been noticed that when an accused is a juvenile and short of even one or two days from the date of attaining majority the accused take the benefit of Juvenile Act. In my considered opinion the same principle should also be applied if the victim girl is also a juvenile. I have already noted earlier that the vi ctim girl was less than 18 years of age on the date of the offence. Section 361 of the Indian Penal Code (briefly ’IPC’) has defined kidnapp 7. ing of minors from lawful guardianship. Under this law the age of female minor h as been prescribed as 18 (eighteen) years. Prior to the amendment of the law in the year 1949 the age for minor girls was sixteen years. Similarly, under the Ju venile Justice (Care and Protection) Act, 2000 all children below the age of 18 years are treated as juvenile/ child. Very recently the panel law has also been amended in the month April, 2013. While amending Section 375 IPC the age for giv ing consent for sexual intercourse has been increased from 16 to 18 years. In th is way the legislature appears to have taken cognizance of the fact that exploit ation of minor girls are on the rise and needs to be checked by way of providing stringent punishments. I am also of the view that the aforesaid provisions of l aw are protective in nature and if the prescribed age of the victim is diluted i t would amount to re-writing the law. I am also of the view that the laws, parti cularly dealing with offences like kidnapping and sexual assault etc., have to b e applied and interpreted in favour of the victims and not in favour of the offe nders. 8. Crimes against women are increasing or at least unabated. Majority of su ch cases are that of kidnapping or sexual assault. Equally in large number of ca ses minor and adult girls are enticed to establish physical relationship on the promise of marriage. After satisfying the sexual lust the girls are abandoned. I f minors are allowed to be lured or enticed away they are likely to ruin their c arrier and their dream life may also come to an end prematurely. The IPC has been recently amended w.e.f. 2.4.2013 vide Amendment Act No. 9. 13 of 2013. By virtue of these amendments not only the sentencing policy in resp ect to crimes against women has been stiffer but a new series of offences have a lso been introduced from Section 354 A to Section 354 D. The offence of women tr afficking has also been widened by substituting Section 370. Even then, in my op inion, the amendments are not sufficient to prevent exploitation of minor girls without specifically making enticement of minor girls an offence. Hence, it is h igh time that the Government should consider suitable amendment in the Penal Cod e so as to make dating and enticing of minor girls also an offence to prevent ex ploitation of adolescent girls. 11. The above apart, in the statement under Section 164 Cr.P.C. the victim h as stated that she had developed affair with the accused since September, 2009. At that time the victim was only 14 ‰ years old girl. At this young age it canno t be expected that a girl would develop affair without any enticement or allurem ent by a person from opposite sex. Even if such an affair by a juvenile girl is voluntary it cannot be approved under law, more so if the affair and dating resu lts into eloping immediately after attaining the age of majority. Be that as it may, in this case the victim girl was minor on the date of eloping. 12. The above apart, the accused is presently 30 years old person as per his affidavit. If that be so, he was 26 years adult person in the year 2009 when th e victim girl was only 14 ‰ years old juvenile. The age difference between the boy and the girl also indicates that the accused/petitioner must have enticed th e girl, taking the advantage of her young age. This court has also come across m any cases in which the girls are enticed at the young age but they are kidnapped or eloped just after attaining the age of 18 years. Possibly this aspect was no
Decision
t considered while amending the IPC in the month of April, 2013. 13. For the foregoing reasons, I hold that the petitioner has committed a se rious offence and he is not entitled to the privilege of anticipatory bail. Acco rdingly, the prayer is rejected. 14. ough the Superintendent of Police, Lakhimpur. The Registry is directed to transmit a copy of the order to the I.O. thr