S.N.H. Zaidi, J. - (1.) By means of this application filed under section 482 Cr.P.C., the applicants have invoked the inherent jurisdiction of this Court with the prayer that proceeding of Criminal Case No. 16900 of 2009, State v. Pappu alias Brijendra Kumar and another , relating to Case Crime No. C-163 of 2009 under sections 363, 366 I.P.C., Police Station Phool Behad, District Kheri, pending in the Court of Judicial Magistrate, Kheri and the summoning order dated 4.12.2009 passed therein, be quashed. The relevant facts, in brief, are that on 14.4.2008 one Sadhari Lal lodged a report at Police Station Phool Behad, District Kheri under sections 363, 366 I.P.C. with the allegation that his 15 years old daughter Phoolmati had been kidnapped on 29.3.2008 by the applicants and his four companions. The girl was recovered and medically examined on 18.4.2008. In her ossification test she was found to be above 19 years of age. On 24.04.2008, her statement under section 164 Criminal Procedure Code was recorded by the Magistrate, wherein she told her age as 18 years and stated that she was not kidnapped by anybody and she had gone of her own with Pappu (Applicant no.1) and married with him on 9.4.2008 in Gayatri Tample at Gandhi Nagar, Gujrat. The girl was, however, given in the custody of her parents by the Magistrate.
(2.) On 19.6.2008, Indal Kumar, the brother of Phoolmati moved an application under section 156(3) Criminal Procedure Code before Additional Chief Judicial Magistrate, Lakhimpur Kheri with the allegation that after the recovery of Phoolmati, Pappu was sent to jail but after he was released on bail, he again kidnapped Phoolmati on 21.5.2008 from the house. Pursuant to the order of the Magistrate on that application, a report under section 363 I.P.C. was registered against the applicants as Case Crime No.C-63 of 2009. The applicants challenged the F.I.R. in Writ Petition No.2581 (M/B) of 2009 before this Court and this Court vide order dated 6.3.2009 stayed the arrest of the applicants till the submission of the charge-sheet. A charge-sheet has been filed against the applicants under sections 363, 366 I.P.C., whereupon the learned Magistrate has taken cognizance and summoned the applicants by impugned order dated 4.12.2009. I have heard learned counsel for the applicants and learned A.G.A. for the State and perused the material placed on record. The submission of the learned counsel for the applicants is that Phoolmati, being above 19 years of age, as per her radiological examination report (Annexure No.7), was major on the date of alleged occurrence and she had married with her free will with applicant no.1 at a temple in Gandhi Nagar, Gujrat, as is evident from her statement recorded under section 164 Criminal Procedure Code by the Magistrate, wherein she had also stated that she had gone with applicant No.1 of her own. He further submitted that as she was given in the custody of her parents against her will, she had again come to her husband in May, 2008 and since then she is living with applicant No.1 as his wife. It has been pointed out that the present application has been filed with the affidavit of Phoolmati. He also submitted that no offence is disclosed against the applicants and they are being prosecuted with mala fide intention for the purpose of harassment.
(3.) Learned counsel for the applicants relied upon the judgment rendered by the Supreme Court in the Case of Lata Singh v. State of U.P., 2006 (56) ACC 234 (SC) : 2006 (44) AIC 97 : AIR 2006 SC 2522 . In the said case, the petitioner, who was major, had left her brother's house on 2.11.2000 of her own free will and married at Arya Samaj Mandir, Delhi to one Brahma Nand Gupta. Subsequently, the petitioner's brother lodged a missing report at the concerned police station on 4.11.2000 and consequently several relatives of the husband of the petitioner were arrested and detained in jail. The statement of the petitioner, under section 164 Cr.P.C., was recorded before the Magistrate, wherein she stated that she married Brahma Nand Gupta of her own free will. Despite this statement, the Magistrate committed the case and the trial court issued non-bailable warrant against all the four accused. Against the order of the trial court the accused filed a petition under section 482 Criminal Procedure Code before the High Court. The High Court directed the accused to appear before the trial court which shall scrutinise whether or not any offence has been committed by the accused. The petitioner alleged before the Supreme Court that she apprehends danger to her life the lives of her husband and child from her brothers in visiting the trial court. Considering the facts and circumstances of the case, the Hon'ble Apex Court observed that since there is no dispute that the petitioner is a major and was at all relevant time a major, hence she was free to marry and live with any one she likes and there is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law and as such no offence was committed by the petitioner, her husband or her husband's relatives and whole criminal case in question is an abuse of the process of the Court and quashed the proceedings of the sessions trial and the warrants issued against the accused persons. In view of the observation of the Supreme Court made in the aforesaid case and considering the circumstances of the present case which are somewhat similar to the circumstances of the said case, so far as it relate to the majority of the allegedly kidnapped girl, her marriage with the accused of her own free will and her admission in respect of these facts in her statement recorded under section 164 Cr.P.C., the proceedings of the criminal case pending against the applicants is an abuse of the process of the Court as Phoolmati was major at the time of the alleged incidents of kidnapping and she had gone and married with the applicant no.1 of her own free will and as such no offence appear to have been committed by the applicants.;