IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No 2652 of 2003
For Approval and Signature:
Hon'ble MR.JUSTICE D.H.WAGHELA Sd/-
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
1 to 5 NO
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SULTAN @ MUNNA AKBAR SAIYED
Versus
STATE OF GUJARAT
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Appearance:
1. Criminal Misc.Application No. 2652 of 2003
MR MM TIRMIZI for Petitioner No. 1
MR SJ DAVE APP for Respondent No. 1
MR BUDDHBHATTI for Respondent No. 2
RULE SERVED for Respondent No. 3
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CORAM : MR.JUSTICE D.H.WAGHELA
Date of decision: 03/05/2003
C.A.V. JUDGEMENT
1.RULE. Learned A.P.P., Mr.S.J.Dave, waived
service of Rule for the respondent State.
2.This petition under section 482 of the Code of
Criminal Procedure, 1973 is filed with a prayer to quash
the F.I.R. dated 20.6.2000 registered as C.R. No.I-86
of 2000 in Gaekwad Haveli Police Station and Criminal
Case No.725 of 2000 filed before the learned Metropolitan
Magistrate, Court No.12, Ahmedabad reporting the offences
punishable under sections 363, 366 and 376 of the Indian
Penal Code against the petitioner.
3.It appears that the original complainant, the
respondent No.2 herein, filed the aforesaid F.I.R. on
20.6.2000 alleging that the petitioner herein had
kidnapped his minor daughter, namely, Hamidabanu
-respondent No.3 herein- under a false pretext that he
would marry her and thereby committed the offences
punishable under sections 363 and 366 of the I.P.C.
During the course of investigation, it was noticed that
the petitioner had physical relations with the respondent
No.3 and, therefore, the offence punishable under section
376 of the I.P.C. was also added subsequently and, thus,
the chargesheet has been filed for the aforesaid
offences.
4.The learned counsel for the petitioner submitted
that false allegations were made in the said F.I.R. It
is also submitted that the petitioner actually wanted to
marry the respondent No.3 and they both have married and
two children have also borne out of the said wedlock
which is still intact. The learned counsel, therefore,
contended that no offence was made out and the aforesaid
F.I.R. resulting in the criminal case may be quashed.
5.Learned counsel Mr.Buddhdbhatti, appearing for
the respondent No.2-complainant, has chosen not to press
the complaint in view of the fact that the respondent
No.3 actually married the petitioner on her own volition.
This clearly shows that it was her willingness and
consent to have physical relation with the petitioner
when she was above the age of 16 years. Since the said
relation took place on account of consent and willingness
of the respondent No.3 after their marriage, no offence
can be said to have been made out which would be
punishable under section 376 of the I.P.C., according to
the learned counsel.
6.Learned A.P.P., Mr.S.J.Dave, has, after going
through the papers of investigation, pointed out that the
respondent No.3 voluntarily left the house of her father
respondent No.2- and had voluntarily gone to stay with
the petitioner. They have married and two children have
also borne out of the said wedlock. In this view of the
matter, according to the learned A.P.P., no offence
punishable under sections 363 and 366 of the I.P.C. can
be said to have been made out against the petitioner.
7.It is not in dispute that the victim of the
alleged offence had completed 16 years of age on the date
on which the alleged offence was said to have been
committed. When the petitioner and the respondent No.3
have married and when they have two children borne out of
that wedlock coupled with the fact that they are living a
happy married life, it would be in the fitness of things
to exercise the inherent powers and jurisdiction vested
in this Court by section 482 of the Cr.P.C. for quashing
the F.I.R. lodged and the consequent chargesheet filed
against the petitioner.
8.In the result, the petition is allowed. The
F.I.R. dated 20.6.2000 registered as C.R. No.86 of 2000
in Gaekwad Haveli Police Station and Criminal Case No.725
of 2000 filed before the learned Metropolitan Magistrate,
Court No.12, Ahmedabad against the petitioner are
quashed. Rule is made absolute with no order as to
costs.
Sd/-
( D.H.Waghela,J.)
(KMG Thilake)