Nitish Kumar v. State of Haryana and Another

SUMEET GOEL, J. (Oral)

¶1The present petition has been filed under Section 482 of the Code of Criminal Procedure 1973 (hereinafter to be referred as "Section 482"), by the petitioner for quashing of FIR No.571 dated 30.06.2018 (impugned FIR) registered under under Section 346 of IPC and Sections 363 and 366-A of Indian Penal Code, 1860 (added later on) at Police Station Sarai Khawaja, Faridabad and all consequential proceedings arising therefrom.

¶2It would be pertinent to refer herein to the factual matrix of the present lis:

(i) The impugned FIR, as spelt out in the present petition, is as follows: "Sir, Police Station Incharge Palla Police Chowki, Faridabad 121003. It is submitted that I Ghanshyam Prasad Singh son of Sh. Gangeshwar Prasad Singh, resident of House No. 75, Gali No. 4, Shyam Colony Part-III, 2024.09.13 15:07 Faridabad, Sarai Khawaja, District Faridabad, Haryana. I have two

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daughters. I elder daughter Sindhu Singh @ Sonam, aged 17 years 3 months, colour fair, height 5 ft, bearing sky blue colour t-shirt and block colourd jeans. From dated 25.06.2018 she has been missing from home without informing anyone. It is possible that she has been brain washed and taken with him and confined her to some location. Therefore, it is requested to you that plea find my daughter and produce her. Applicant Ghanshyam Prasad Singh" The complainant/informant in the impugned FIR is Ghanshyam Prasad Singh, who has been impleaded as respondent No.2 herein and the victim is his daughter Sindhu Singh who has been impleaded as respondent No.3 (herein).

(ii) The petitioner has pleaded that he got married with the victim namely Sindhu Singh on 18.02.2020 whereinafter they had been living as husband and wife. After solemnization of marriage, petitioner and respondent No.3 filed a petition for protection of their life and liberty before this Court which was disposed of vide order dated 05.03.2020; relevant whereof reads as under: "This petition is disposed of with a direction to respondent No.3 - S.H.O., Police Station Palla, District Faridabad, that representation, if any, filed seeking protection of life and liberty, be looked into and contents thereof be duly verified and if necessary, requisite steps be taken, strictly in accordance with law for grant of protection of life and liberty to the petitioners. It is made clear that this order shall not be treated as a stamp of this Court regarding marriage of the parties." It has been further pleaded that after registration of the impugned FIR, the statement of the victim-respondent No.3 (herein) under Section 164 of Cr.P.C., 1973 was recorded before the Magistrate on

01.07.2020 wherein she stated that she has joined the company of the petitioner on her own volition and has also solemnized the marriage with the

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(iii) It is worthwhile to note that, counsel for victim - respondent No.3 (herein) has entered appearance before this Court today and filed his Power of Attorney alongwith short reply by way of affidavit of Sindhu Singh (victim-respondent No.3), relevant whereof reads as under: "5. That, the father of the deponent, who is respondent no. 2 in this petition, lodged FIR No. 571 dated 30.06.2018 with Police Station Sarai Khawaja, Faridabad, reporting her as missing. Subsequently, the police registered the FIR, naming her husband with allegations that he had kidnapped the deponent. It is stated that at no point did the husband of the deponent kidnap her, rather, the deponent left her parental home of her own free will on 25.06.2018 and is now residing happily with her husband.

¶6That, in the above referred FIR, deponent recorded her statement before Learned Judicial Magistrate, 1st Class, Faridabad, on 01.07.2020, under Section 164 Cr.P.C., stating that she joined the petitioner of her own volition and that she has solemnized her marriage with the petitioner and my husband has not committed any offence, as I had left my parental house of my own freewill. The deponent stands by her statement and confirms that it is true and correct.

¶7That, the deponent has no objection if the present petition is allowed and the and above referred FIR is quashed, as the petitioner did not kidnapped her, and she is living with him of her own volition. It is stated that the FIR was registered by the father of the deponent, who is respondent no. 2 in this petition, because he was unhappy with the relationship between the deponent and the petitioner." Indisputably, the victim-daughter of the complainant namely Sindhu Singh is living happily with the petitioner since the day of marriage. It has been further pleaded that out of this wedlock, one male child has been born.

(iv) It is in this factual backdrop that the quashing of the impugned FIR as also all proceedings arising therefrom has been sought for.

¶3Learned counsel for the petitioner has argued that the petitioner and the victim were having an affair whereinafter they got married on I attest to the accuracy and18.02.2020; the petitioner and the victim have been happily living together

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and the continuation of the proceedings qua the impugned FIR would amount to gross abuse of process of law. Hence, quashing of the impugned FIR as also all proceedings arising therefrom has been sought for.

3.1 Learned State counsel has submitted that the allegations against the petitioner are serious in nature as he has enticed away the daughter of respondent No.2. She, however, does not dispute the factum of petitioner and respondent No.3 having married each other.

3.2 Service of the instant petition was effected upon respondent No.2-father of the victim. However, none has put in appearance on behalf of the said respondent.

3.3. Learned counsel appearing for respondent No.3 has made submissions in tandem with the submissions made by learned counsel for the petitioner.

¶4I have heard learned counsel for the parties and have perused the record.

¶5It would be apposite to refer herein to a judgment of this Court passed in CRM-M-4660-2020 titled as Surjit Rai vs. State of Punjab and others, decided on 05.06.2024; relevant whereof reads as under:- "8. More often than not, this Court is faced with an incessant stream of petitions wherein the father/guardian has got registered an FIR by stating that his daughter has been enticed away by the accused. As the factual position gradually unfolds; it is found that the accused and the victim were earlier in a relationship and have, in some cases, later on even solemnized marriage but the said relationship/marriage was not to the liking of the guardian/family of the victim. For parents to tether their affinity towards a daughter only through (injured) honour, psychogenic pain of separation or sheer dominance of Will is neither altruistic nor a kindered affinity, both of which are necessary foundation to a family. Parents must take into account that their children may make choices which are individual to them; and just 2024.09.13 15:07 as life does not tarry with yesterday, certain consequential life events cannot

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be reversed. It must be also considered what William Shakespeare asseverated, in the play "A Midsummer Night's Dream": "Love looks not with the eyes, but with the mind; And therefore is wing'd Cupid painted blind……….", If a daughter has followed her mind to enter into a matrimony that a father disapproves of, thinks of it as being an outcome of being blinded by sheer love or even feels wounded by the manner of it; love for the daughter, kinship for progeny and consideration for salubrity of familial relationship, at the very least, far outweigh belligerence and phyrric victory of having prolonged antagonism and actions arising thereof towards daughter and her matrimony.

8.1 The Hon'ble Supreme Court in case of Mafat Lal (supra) has enunciated that, in such like case, the offence of kidnapping is not made out and no useful purpose would be served by sending the accused to trial. Further, the Hon'ble Delhi High Court in the case of Arif Khan (supra) has considered the factum of the accused and the victim having been married and happily raising their family to be sufficient cause(s) to quash such like FIR (as also proceedings arising therefrom) in the interest of justice.

8.2 There is yet another aspect of the matter viz. whether the victim had left the lawful guardianship on her own accord. The Hon'ble Supreme Court in the case of S. Varadarajan (supra) has enunciated that, if the facts of a case reflect that the victim had left the lawful guardianship on her own accord, then the accused cannot be said to have taken her out of lawful guardianship and hence the offence of kidnapping, as stipulated in Section 361 of IPC 1860, would not be made out. Such factual aspect can be well gathered from the statement/stand of the victim in question.

8.3 This Court in the case of Talima (supra) has delved into the nature, scope and ambit of powers of the High Court under Section 482 of Cr.P.C. of 1973 to hold that inherent powers of a High Court are powers which are incidental replete powers, which if did not so exist, the High Court would be obliged to sit still and helpless, see process of law and Courts being abused for the purpose of injustice. There is no gainsaying that it is unequivocal that the inherent powers of the High Court; statutorily recognized by way of Section 482 of Cr.P.C., 1973; are unbridled, unfettered and plenary powers to be exercised for the cause of justice. The High Court is also, well within its jurisdiction, to read between the lines of the case set-up by the complainant/prosecution as also look into and consider all relevant

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8.4 For a couple, who have been wedded happily for long and have children; it can be embarrassing, unsettling and even disconcerting to find being subjected to unabated withering over their matrimony. "A marriage is a matter of more worth, than to be dealt in by attorneyship", as William Shakespeare entreated in the play titled Henry VI. For a parental trifling with conjugal relationship; to the extent of bringing forth to face trial, the accused (husband) alongwith purported victim (daughter of complainant) as also their children, over questioning the raison d'etre of the wedlock, is seemingly a leaf out of Commedia Dell'Arte. The sheer distress caused to the young couple and their children on this account is unfathomable. A father's rancor cannot be permitted to remain extant ad infinitum ad nauseam. To have the accused (now husband to the victim as also now father to the children born from wedlock), the purported victim (daughter to the complainant, now wife to the accused and now mother to the children born from wedlock) as also children; brought forth to Court, repeatedly, to question and scrutinize the wedlock, of which the said children are born of, would be outrightly farcical & patently ludicrous.

8.5 There is yet another pertinent aspect of the matter. A marriage is an admittance into family life which becomes a basic unit of community and society. When children are born to this covenant, the marriage does not remain an entity and ensconced between two people but it pivots into a family wherein children's presence kindles a collective obligation for the kinsfolk and even the wider Society. Hence, to trifle with a family by way of having the sanctity of matrimony questioned, is egregious. It would tantamount to injustice, especially to the children, if the accused and his wife (purported victim) are left to such an inveterate belligerence.

8.6 Ergo, in the cases of nature as the one in hand is; it would not serve the interest of justice nay substantial justice, if the High Court were to decline to exercise its inherent plenary powers under Section 482 of Cr.P.C., 1973 to quash the FIR as also all proceedings emanating therefrom to secure the indefatigable cause of justice. This Court must hasten to add a word of caution herein viz. this course of action ought to be adopted with careful consideration of entirety of facts and circumstances of the particular case in hand for no such principle/course of universal application can possibly be laid down.

8.7 As a result of the above rumination, the following postulates emerge:

(i) Where the impugned FIR pertains to allegation of offences under Sections 363-A/366 of IPC& it emerges that the accused and the victim have 2024.09.13 15:07 married each other and are living happily, the High Court ought to consider,

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with a high degree of latitude, such plea for quashing such an FIR (as also proceedings arising therefrom). Such plea would be fortified in case child has been born from the wedlock.

(ii) The factum of the victim being minor at the time of the alleged offence shall not ipso facto call for rejection of such a plea on this score itself. Even in such like cases, the High Court is well within its jurisdiction to evaluate the entirety of facts including the factum of the victim having attained the age of majority and still staying in the matrimony, the said couple having been blessed with child etc.

(iii) There is no gainsaying that above postulates are not to be universally/sweepingly applied, for every case has its unique facts/circumstances."

¶6The impugned FIR was got registered by respondent No.2 on

30.06.2018 primarily alleging that his daughter was enticed away by the accused. As per the undeniable factual position; the petitioner-accused got married with the victim on 18.02.2020 whereinafter they are living happily. The victim had solemnized marriage on her own volition. The purported victim namely Sindhu Singh has wholeheartedly supported the case of the petitioner-accused. No fruitful purpose would be served by relegating the matter for trial especially in view of the statement of the victim made under Section 164 of Cr.P.C., 1973 on 01.07.2020 wherein the victim has categorically stated that she has joined the company of the petitioner on her own volition and has solemnized the marriage with the petitioner voluntarily as also had left the house of her father on her own accord. It is conceded position that the victim was major at the time of her marriage with the petitioner-accused and she is living happily with the petitioner-accused & the impugned FIR was got registered by her father as the said relationship/marriage was not to his liking. Therefore, keeping in view the totality of the facts and circumstances of the case in hand, this Court finds it

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a fit case for exercise of its inherent plenary jurisdiction to quash the impugned FIR as also all proceedings emanating therefrom. Decision

¶7Accordingly, the FIR bearing No. 571 dated 30.06.2018 (impugned FIR) registered under under Section 346 of IPC and Sections 363 and 366-A of Indian Penal Code, 1860 (added later on) at Police Station Sarai Khawaja, Faridabad and all consequential proceedings arising therefrom are quashed.

¶8Pending application(s), if any, shall also stand disposed off.

(SUMEET GOEL) JUDGE

September 12, 2024 Ajay

CRM-M-21223-2020 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 281 CRM-M-21223-2020 Date of decision: 12.09.2024 Nitish Kumar ....Petitioner V/s State of Haryana and another ....Respondents CORAM: HON'BLE MR. JUSTICE SUMEET GOEL Present: Mr. V.M. Gupta, Advocate with Mr. Nakashvir Singh Aulakh, Advocate for the petitioner. Mr. Ashok Kumar Shehrawat, DAG Haryana. None for respondent No.2. Mr. Lalit Sharma, Advocate for respondent No.3. *****