Mahipal and others v. State of Uttarakhand and another

have challenged the criminal proceedings which are pending before the Additional Chief Judicial Magistrate, Haridwar.

#2. Heard Mr. Tapan Singh, Advocate holding brief of Mr. Lok Pal Singh, Advocate for the applicants and Mr. Hari Om Bhakuni, Brief Holder for the State of Uttarakhand.

#3. Brief facts of the case are that an FIR was lodged by one Sri Ramesh Chandra on 22.5.2006 against the present applicants at Police Station Jwalapur under Sections 363, 366 A and 506 IPC which was registered as Case Crime No. 232 of 2006. It was stated in the FIR that the applicants are relatives of the complainant. On 7.5.2006 he (complainant) along with his daughter Vineeta had gone to the house of the applicants where they stayed in the night. On 8.5.2006 in the evening at 5 P.M. Godambari Devi i.e. present applicant no. 3 and her two sons, namely, Mahipal and Chotu said that they are going to take Vineeta to Haridwar. The complainant wanted to accompany them but persuaded not to go. All the same, these persons never returned and he (complainant) kept on waiting till the next day. On 10.5.2006 when Smt. Godambari Devi returned, the complainant asked about whereabouts of Vineeta. Initially Godambari Devi kept quiet 2 and thereafter said that Mahipal and Chotu had left Vineeta to her house. He (complainant) enquired about Vineeta from his wife and he was told that Vineeta has not returned. Consequently he filed a report of kidnapping and other offences, as referred above against the applicants.

#4. After investigation, the police filed a chargesheet against the accused on 17.2.2007 and consequently thereafter the learned Additional Chief Judicial Magistrate, Haridwar vide his order dated 17.7.2008 summoned the accused under Section 363, 366 A and 506 IPC. It is this order which has been challenged by the applicants by means of present application. The prayers made by the applicants are as follows : (cid:147)It is, therefore, most respectfully prayed that this Hon(cid:146)ble Court may graciously be pleased to quash the charge sheet of case crime no. 232 of 2006, U/s 363, 366-a, and 506 IPC. P.S. Jwalapur, Now Bahadarabad Criminal case No. 205/2011 (cid:145)State V/s Mahipal Singh & others(cid:146) pending in the court Additional Chief Judicial Magistrate, Haridwar, and further be pleased to quash the cognizance order dated 17.7.2008 passed by Additional Chief Judicial Magistrate, Haridwar, District Haridwar in 232 of 2006, U/s 363, 366-a, and 506 I.P.C. P.S. Jwalapur Mahipal Singh & others. It is further prayed that this Hon(cid:146)ble Court may be pleased to stay the further proceedings of Haridwar in 232 of 2006, U/s 363, 366-a, and 506 I.P.C. P.S. Jwalapur Mahipal Singh & others pending in the Court of Additional Chief Judicial Magistrate, Haridwar, District Haridwar, during the pendency of the present application, otherwise the applicants shall suffer irreparable loss and injury, which cannot be compensated in any manner.(cid:148)

#5. On the last occasion, this Court had ordered for personal presence of respondent no. 2. The husband who is applicant no. 1 is also present before this Court. It is an 3 admitted case that the marriage of applicant no. 1 was solemnized with Km. Vineeta on 19.7.2006 and from the wedlock the couple already have two children. The wife (Vineeta) is also present before this Court today who has stated before this Court that she had married to applicant no. 1 at her own will and now she is happily and peacefully residing with him and they are having two children out of the wedlock.

#6. It would indeed be a travesty of justice that after so much water has flown, a criminal case remains pending against the applicants. Ms. Vineeta is a major, which is apparent from the observation made by the Sessions Judge, Haridwar in his order dated 11.11.2010 while granting bail to the present applicants that when Km. Vineeta was missing, her father had published a pamphlet in which he had stated that the age of his daughter Vineeta is 18 (cid:150) ‰ years. Medical report was also available before the court below which says that the age of girl was 20 years. From the perusal of the order dated 11.11.2010 it appears that there were medical evidence before the court below which states that the girl (Vineeta) was major.

#7. Moreover, the Hon(cid:146)ble Apex Court, as far as the determination of age is concerned, in a recent judgment passed in Om Prakash v. State of Rajasthan and another (Criminal Appeal No. 651 of 2012) has held that full credence, in a criminal case, must be given to a medical evidence when age has to be determined, as in the present case. Presently there is already an order dated 11.11.2010 of learned Sessions Judge which says that there was a medical evidence available on record which suggests that the girl was more than 20 years of age. 4

#8. Under the present facts and circumstances, no offence either under Section 363, 366 A or 506 IPC is made out against the applicants for the simple reason that the girl is major and consequently had eloped with applicant no. 1 on her own will. She being a major had a right to choose her husband which she has done and subsequent to the marriage, the couple now have two children, out of the wedlock.

#9. Therefore, it is a fit case in which the inherent and extraordinary powers of this Court under Section 482 Cr.P.C. liable to be exercised, as apparently any further continuance of the criminal proceedings against applicants, as referred above would amount to an abuse of the process of court. Accordingly, the criminal proceedings in Criminal Case No. 205 of 2011 (cid:147)State V/s Mahipal Singh & others(cid:148) pending before the Court of Additional Chief Judicial Magistrate, Haridwar against the applicants under Section 363, 366 A and 506 IPC are hereby quashed.

#10. The instant C-482 application is allowed.

#11. No order as to costs.

#12. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.

10.5.2012 (Sudhanshu Dhulia, J) Avneet