JUDGMENT
L. Rath, J.
1. This case is an expression of the conflict of values of parental authority assorting its right to control the rebellion in the offspring, a daughter, in choosing her life partner and the avowal by the daughter of the sole right in herself to regulate her own affairs. Thrown in to this age-old disharmony of parental authority and difiant assertion of the postority of its personal rights is a dose of inter-religious, and hence unacceptable, marriage. Torsely put, petitioner No, 3, a Marwari girl, has choosen the petitioner No. 1, a Muslim boy as her life partner and an FIR having been lodged by the father registering a case Under Section 363,IPC against him and petitioner No. 2, a person supposed to have assisted petitioner Nos, 1 and 3, all the petitioners are before this Court to claim their relief of quashing of the FIR and the investigation and not to arrest them or to take away petitioner No. 3 from her marital home. In this fight between the two sides, the State has thrown its weight on the side of the father. The case has been contested before the Court with extraordinary tenacity and zeal.
2. To properly appreciate the background of the case, a narration of the facts are necessary. The. FIR was lodged on 7-3-1993 of the petitioner No. 3, a girl of seventeen years, having been taken away by petitioner No. fort 6 3-1993. At the time of her being taken away she was carrying with her gold ornaments worth Rs. 10,000/- and cash of Rs 2,000/- from her own savings and some books of study, clothes and dresses and that she was being concealed by petitioner No. 1 some where in Cuttack. On the information lodged at the Purighat Police Station, Cuttack, P. S. Case No. 91 of 1993 Under Section 363, IPC was registered. The petitioner No. 2 is being cited in the case as an accused but has approached this Court saying that he is no way connected with the case but was arrested by police as he was a witness to the marriage of petitioners 1 and 3 in the Mahammadan form on 28-2-1993. The marriage was performed by a Moulavi and registered by the Kazi at Dharadharpur. A copy of the marriage certificate has been annexed to the petition as Annexure-2 to which ; will have occasion to refer in greater detail later on. In the present petition it is the averment of the petitioners that the petitioner No. 3’s father being a moneyed man had engaged hooligans and goondass with a view to do away with petitioner No. 1 and take away petitioner No. 3 forcibly, coming to Know of which both of them went away to Bhubaneswar to save their lives and remained at village Jadupur but as the strong men followed them, they left Orissa, On 15/16th of. April, 1993 night the Bhubaneswar police recovered the dead body of a girl whose face had been distigured- and in that connection registered Bhubaneswar P. S. Case No. 34 of 1993 dated 19-4-1993 Under Section 302/201, IPC. Similarly the same night the Jatni Police also recovered the dead body of a Muslim boy whose throat had been slit and the face had been disfigured and in respect thereof the jatni Police had registered a case. During the investigation of the cases the dead bodies were suspected to be of petitioner No. 3 and petitioner No, 1. The mother of petitioner No. 3 identified a Paunji as that of her daughter. It was also mentioned by police thai the dead body recovered at Jatni was that of petitioner No. 1. The Inspector-ill charge of Purighat Police Station reported such fact to the SDJM, Sadar, Cuttack on 29-4-1993 as per the letter annexed as Annexure-4. The death of petitioner No. 3 was also reported in the local press and was published in the daily Samaj of 23-4-1993. The petitioners have now approached the Court disclaiming the fact of their death reported by the police and for the desired reliefs on the assertion that petitioner No. 3 is a major her date of birth being shown in her 1. C. S. E. certificate issued by th8 Council for Indian School Certificate Examinations, New Dalhi and the school leaving certificate as 26-12-1973 and she out of her own accord and volition to have gone away with the petitioner No. 1, that they are now married and are leading married life as husband and wife. Interim relief was given to the petitioners by order dated 26-7-1993 not to arrest them. On 29-7-1993 orders were passed directing the petitioners’ counsel to produce petitioner No. 3 in Court on 3-8-1993. On that date a petition for intervention was filed by the father of petitioner No. 3 entering a caveat. The petition was disposed of with the observation that though a caveat was not permissible, yet Mr. Mohanty, learned counsel for the intervener, shall be heard at the time of hearing and final disposal of the case. On 3-8-1993 petitioner No. 3’s appearance was taken up in the chambers, as was requested, in presence of the learned Addl. Govt. Advocate and her counsel Mr. G. N. Mohapatra as also of Mr. Mohanty. That day the petitioner No. 3 was heard and the order was recorded :
“Petitioner No. 3 appeared in the chambers in presence of the learned Addl, Govt. Advocate, Mr. Mohapatra appearing for her and Mr. Mohanty representing her parents, She was questioned as to whether she has tiled this petition along with the petitioner Nos. 1 and 2 to which she acknowledged. She also expressed that she has gone away with petitioner No. 1 since 6 3-1993 and is with him since then having married him in the Mahammadan system at Bharadharpur. She expressed herself to be major having been born on 26-12-1973. To the question whether she wants to continue with her husband or live with her parents, she categorically expressed her desire to continue with the petitioner No. 1. She also did not complain of any ill-treatment, harassment or coercion and appeared to be determined to continue in her present status. As agreed to by the learned counsel for the parties, this case be put up on 11-8-1993 for admission and final disposal. The petitioner No. 3 shall be afforded the same protection as had been extended to her by order No. 4 dated 29-7-1993.”
Thereafter orders were passed on 23-8-1993,as the bone of contention of the parties was the age of petitioner No. 3, and as both sides agreed that medical evidence should come in as regards her age, directing learned Addl. Govt. Advocate to get her medically examined by the professor and Head of Department of the Forensic Medicines and Toxicology, S.C.B. Medical College-Hospital. Cuttack on 27-8-1993. She has since been so examined and the medical examination report has been made available to the Court which shows that her age to have been opined as above 17 but below 18 years. The professor however has made a further observation that the petitioner No. 3 appeared to be apprehensive and of confused state of mind which suggested unsoundness of mind and for that he was of the view that she should be examined by the Head of Department of psychiatry.
3. It is the submission of Mr. Palit who has subsequently appeared for the intervener that because of the medical opinion as to the age of petitioner No. 3, an offence Under Section 363, IPC, has been made out as she was a minor and hence the investigation cannot be quashed. He is also supported in the submission by the learned Addl. Govt. Advocate. It is on the other hand submitted by Mr. Mohapatra for the petitioners that the medical evidence is not conclusive and that it was fixed, He has also filed two affidavits on 13-9-1993 of petitioner No. 3, one saying that she was produced for medical examination before the Professor by the Investigating Officer Mr. Panda and that while she was in the room of the Professor she heard the I.O. requesting the doctor to prepare the medical report in accordance with their conversation held on the previous day. From their talk the petitioner No. 3 anticipated some foul play and reasonably apprehended that she might be shown as a minor in the report though she is a major and now aged about 19 years 9 months. In the affidavit she also made certain allegations against the I.O.. In the other affidavit she stated that she was admitted in the Stewart School, Cuttack by her father Suresh Kumar Gaggar on 19-1 2-1978 and she left the school on 30-3-1990 after completing her studies for 12 years 3 months. After completion of her school career she also took admission in the S. B. Women’s College, Cuttack in Plus Two Arts Class and completed that course. Thereafter while studying in Plus Three Arts Class she went away of her own accord with, petitioner No. 1. In total, her education spreaded over 12 years 3 months in school and 3 years in college and hence by no stretch of imagination she could be a minor as it could not be a fact that she had started her school career when she was hardly two years old.
4. While urging for the reliefs, Mr. Mohapatra has submitted that the petitioner No. 3 being a major and because of the admission of her own father regarding the ago, the criminal prosecution of petitioner No. 1 for having kidnapped her should not be entertained as the provisions of Sac. 3S3 IPC, are being obliquely twisted to harass the petitioners. Reliance has been placed by him on (1993) 6 OCR 186 (Baby alias Sita Kumari Agrawal v. Officer-in charge, Purighat Police Station and 3 others) where considering a case of almost similar facts, the Court quashed the prosecution without going into the question as to the age of the girl as the parties we’re leading a happy marital life. Such submission of Mr. Mohapatra has been seriously contested by the State as well as the intervener with reliance placed by the learned Addl. Govt. Advocate on AIR 1992 SCW 2187 (Ms. Jayat Vitamins Ltd. v. Chaitanyakumar and Anr.) and AIR 1993 SC 1032 (Union of India v. W.N. Chadha) contending that this Court should not quash an investigation exercising powers under Sec. on 432, Cr PC Reliance has also been placed on a decision rendered by me – reported in (1992) 5 OCR 200 (Manoranjan v. State) that as between the age evidenced by a school admission register and that furnished by radiological examination and other physical characteristics of the victim girl, the former cannot prevail over the latter as judicial notice can be taken of the fact that in our country correct date of birth is never disclosed in the school admission register.
5. This is a case where the anxiety of the intervener father to have the custody of petitioner No. 3 is obvious. The case has been pursued zealously on both sides with petitioner No. 3 attempting to keep herself beyond the claim of custody by her father and he taking all steps to have her back. The fact remains, as is also admitted, that petitioner No. 3 went away with petitioner No. 1 on 6-3-1993.Prior to that they had entered into marriage on 28-2-1993. They have been living since then as husband and wife at different places in the country concealing their presence throughout so as to avoid being detected and separated forcibly. At. one point of time the petitioners 1 and 3 were taken as dead and such fact was also reported to the S.D.J.M., Sadar, Cuttack but since they were apprehensive of their open re-appearance, they thought it better to take shelter of the Court to quash the criminal prosecution against them on the basis of the declared majority of petitioner No. 3. No doubt if petitioner No. 3 is accepted as a major, the charge against petitioner No. 1 Under Section 363 1PC would not stand.
6. At this stage, the submission of the learned Addl. Govt. Advocate may be taken up. He has advanced the following propositions for consideration ;
(1) When the case is at the investigation stage, the Court should not quash the proceeding.
(2) The accused persons having the opportunity available under the Code of Criminal Procedure at different stages right from cognizance to framing of charge, the Court should not interfere with the matter, particularly when the, evidence collected so far does not show that there is no prima facie case,
(3) The doctor having opined that petitioner No. 3 is blow 18 years, evidence is required to establish whether the age as shown in the school leaving certificate and the I.C.S.E. certificate is correct.
(4) According to Orissa Mahammadan Marriage Registration Act, 1949 the fact whether Section 9 thereof had been complied with being a question of fact it has to be adjudicated at the trial.
He however readily conceded that so far as the fourth submission is concerned, it is not within the scope of this case as the validity or otherwise of the marriage of petitioner Nos 1 and 3 is not in question before this Court.
7. That an investigation in a proper case can be quashed is no longer res Integra, having been clinched by decisions of the apex Court in AIR 1982 SC 949 (State of W. B. v. Swapan Kumar Guha) and AIR 1992 SC 604 (State of Haryana v. Bhajan Lal). As such, a blanket proposition as is advanced by the learned Addl. Govt. Advocate that an the case is under investigation it should not be quashed, is not acceptable. The question rather is even if the Court has the power to quash as F.I.R. or an investigation, which is a proper case where the power should be exercised ?
8. The question was examined in AIR 1992 SC 604 (supra) wherein in para-108 the Court said :
“……we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guideline or rigid formulae and to give an exhaustive B list of myriad kinds of cases wherein such power should be exercised.”
The seventh illustration given by the Court was ;
“Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.”
It is to be noticed that the Court was completely conscious of the fact that the. illustrations given by it were not exhaustive and that while a spectrum of cases may exist where the exercise of the power may become necessary, the Court in para-109 of the judgment administered the caution that the power should be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court should not embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. It is true the Court made it clear that the investigation is the realm of the police officer whose powers are unfettered in respect of cognizable offences unless it transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, in which case the Court on being approached by the person aggrieved has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution, But even so, the Court cams to the ultimate conclusion that even where investigations ware being carried on without so outstepping the limits and yet the Court is convinced that the circumstances are such as justify an interference because of the case failing under any of the illustrations given in para-103, or is even otherwise one which though not covered by the illustrations yet warrants an interference, it can, which must necessarily be exceptional and rare, quash the investigation.
9. The principle hence deducible is that there cannot be a straight-jacket formula uniformly applicable to all cases which may arise before the Court and that the broad principle enunciated has to be -applied in the background of the facts of particular cases and that each case has to be decided on its own merit with the Court remaining on ward when called upon to exercise the inherent power that it does not by way of a whim or arbitrariness interfere with the process of Jaw which is otherwise being validly pursued. But if the Court comes to the conclusion, of which the seventh illustration in para-108 is one aspect, that the procedure is in reality an abuse of the provisions of the Code though seemingly is under the garb of a valid exercise, and in reality results in perversion of human dignity and fundamental freedom and that the provisions of the Code are being availed of for oblique and twisted purpose, a refusal to interfere under the inherent powers may well be giving a licence to perpetration of an injustice. AIR 1392 SC 1930 : 1392 AIR SCW 2187 (supra) cited by the learned Addl, Govt. Advocate does not say diffenently and indeed has no application since it was a case where the Court found that as further investigation into the case, expressly allowed under Sec.173 (S) of the Cr PC was on. the investigation could not be quashed merely because earlier the police had closed the investigation. AIR 1989 SC 2222 (State of U. P. v. R. K. Srivastava) cited by Mr. Mohapatra has also no application as it was a case where the FIR did not contain any definite accusation.
10. On the admitted facts of the case, the petitioners have shown petitioner Mo. 3 to be ex facie a major, her date of birth being recorded in the I.C.S.E. certificate, and the school leaving certificate as 26-12-1373. If that is accepted as the age of petitioner Mo. 3, the entire setting in motion of the criminal law against the petitioners 1 and 2 must fail. The date of birth is being disputed saying it had been wrongly entered and that her actual age was 17 years on the date the offence was committed. The trumpoard held for the purpose is the medical opinion regarding the age. it is to be noticed that even though the father of the girl has appeared as an intervener, yet in the intervention petition it has not been stated that petitioner No. 3 is a minor. That her date of birth is anything other than what is given by her has also not been stated. No other affidavit has also been filed disclosing any alternate date of birth. in the background of the case, the lack of assertion by the intervener that petitioner No, 3 was a minor assumes importance as her positive statement of her being a major supported by the two certificates has never been contradicted. The medical examination report showed the petitioner on 27-8-1993 to be more than 17 and less than 18 years; Hence, even according to the medical evidence she may be a few days less than 18 years and as such giving a concession of six months from the date of examination, her age according to the medical report may be more than 17 years 5 months some days. That medical evidence is not conclusive regarding age of a person is a well settled proposition of law. 38(1972)CLT 1238 (M. A. Ajij v. State) was a case where the age of a girl in relation to an offence Under Section 376.IPC was in question where the trial Court had coma to the conclusion exclusively basing on the evidence of P. W. 3 who had held the ossification test, that the age of the girl was below 18 years. After analysing the evidence in detail the Court held that the case was a border line one, that the medical evidence of age cannot be of mathematical precision, that it is all the more risky to convict somebody solely on the basis of medical evidence which is likely to vary and that in a border line case it would not be proper to solely rely on the medical evidence regarding age, It was held that the onus lies squarely on the prosecution to prove the age as being below 18 years.
In AIR 1958 Kerala 121 (Chathu v. P. Govindan Kutty) the decision was, in an offence Under Section 363, IPC, in respect of a girl, that the Magistrate was not right in preferring the opinion of the radiologist to the positive evidence furnished by the Municipal birth register, the school admission register and the evidence of the girl’s father, particularly when medico-legal opinion is that owing to the variations in climate, dietotic, hereditary and other factors affecting the people of the different States of India it cannot be reasonably expected to formulate a uniform standard for the determination of the age by the extent of ossification and the union of opiphysis in bones.
In AIR 1982 SG 1297 (Jaya Mala v. Home Secretary, Govt. of J. & K.) it was held that it was notorious and one can take judicial notice that the margin of error in age ascertained by radiological. examination is two years on either side.
Hence, taking such error into consideration it cannot be said that the age as ascertained by medical examination would conclusively establish petitioner No. 3 to be below 18 years.
11. Now I shall come to (1932) 5 OCR 200 (supra), which held that in our country correct date of birth is never disclosed in the school admission register. While that is so, yet a further fact to be taken note of is that while getting a ward admitted in an educational institution, it is the usual practice to reduce the age to have later gains. It is hardly ever done that the age of a boy or a girl is enhanced at the time of admisission into school.
12. It is necessary at this stage to notice the argument advanced by Mr. Mohapatra which has substantial appeal. It has been pointed out that the educational career of petitioner No. 3 spanned more than fifteen years and that she could not have been admitted into school when she was only two years’ old and therefore the claim advanced by the prosecution that she was a minor is a myth. From the dates supplied in the affidavit filed by the petitioner No. 3 on 13-9-1993, it is seen that she spent 11 years 3 months in the school and hence her total educational career by 6-3-1993 spans about 14 years and 2 months. It is to be normally expected that petitioner No. 3 was at least 4 to 5 years’ old when she was admitted to the school and hence, she could never be less than 13 years on 6-3-1993.
13. The matter can be seen from a different angle. The medical evidence being that the petitioner No. 3 could be a few days less than 18 years, her claim that she is above 18 as is evidenced in her school leaving and I. C. S. E. certificates gathers substantial force, in a criminal prosecution, since the benefit of doubt always goes to the accused and in the present case there being a doubt in view of the medical evidence and the supporting documentary evidence that the age of petitioner No. 3 may be more than 18 years, it has to be reserved in favour of petitioners 1 and 3 and not against them. It has been urged – by Mr. Palit that the medical evidence would give rise to a doubt that petitioner No, 3’S age is not above 18 years. The very argument, would hold, is suicidal and goes against the idea of commission of a culpable act by petitioner No. 1. The view of resolving the doubt in such a case in favour of the accused was also adopted in AIR 1970 P. &. H. 450 (Raunki Saroop v. State).
14. While considering this aspect of the case, it is also necessary to consider the arguments advanced by both Mr. Palit and of the learned Addl. Govt. Advocate regarding petitioner No. 3 being not of stable mind and suggesting her unsoundness of mind as was opined by the Professor of F. K. T. with further suggestion that she should be examined by the Professor and Head of Department of Psychiatry. The view expressed by the Professor appears to be rather extraordinary. The reference to him was not to determine her mental faculties. She has only been sent for examination to find out her age by medical examination. Her state of mind had nothing to do with the determination of her age. The opinion so expressed by the Professor was hence absolutely uncalled for. The petitioner No, 3 appeared in Court on 3-8-1993 when she had been closely questioned in presence of the learned advocates. She had intelligently answered all the questions as has been extracted earlier. She never appeared to be in any way of unstable and confused state of mind, far less of unsound mind. If at all she exhibited such characteristics before the Professor, it must have been because of the apprehension she might have had due to the fact of her impending examination. For such reasons, I am not inclined to send petitioner No. 3 for a further examination by the Professor of Psychiatry as there does not appear to be any necessity for that.
15. Questions have been raised regarding the genuineness of the marriage between petitioner No. 1 end petitioner No. 3 as the marriage certificate produced in pursuance of the direction of the Court showed entry in col. 8 thereof to have been overwritten as “No demand’ when the xerox copy thereof produced as Annexure-3 shows the entry to have been made as ‘On demand’. Two affidavits have been filed on 1-10-1993, one by the Kazi Soukat Ali Khan and the other by Sk. Abdul Gani, the Moulavi of Dharadharpur Mosque. The Kazi has sworn the affidavit of his having been appointed as Kazi for the entire area of Jagatsinghpur Police Station as per the provisions of Section 2 of the Kazi’s Act, 1880 (Act 12 of 1880) by’ Revenue Department notification dated 20-9-1983 published in the Orissa Gazette (Extraordinary) on October 5th. 1993 and he having been appointed under the same notification as the Mohammadan Registrar for the entire area of Jagat- singhpur P. S. for the purposes of marriage and divorce as per the provisions of Section 3 of the Orissa Mahammadan Marriage and Divorce Registration Act, 1949. A copy of the notification has been annexed to the affidavit. The affidavit further says that the marriage between petitioner No. 1 and petitioner No. 3 took place at Dharadhorpur Mosque in presence of the witnesses and was performed by the Moulavi on 23-2-1993 and that he (Kazi) had supplied the marriage form which was supplied to him by the Inspector-General of Registration and Registrar, Orissa. The marriage had been registered by him on 6-3-1993 and was, assigned serial number 978 In the register. The original marriage certificate was made over by him to one Sk. Jani, the brother of petitioner No. 1 to be presented in Court. At that time there was no overwriting in Col. 8 and the original writing was ‘On damand’. He believed that Sk. Jani had made the correction in the certificate. The other affidavit is of the Moulavi who stated that on 28-2-1993 he had performed the marriage of petitioner Nos. 1 and 3 and in Col. 11 of the form the petitioner No. 3 had given declaration in her own hand that she had accepted Muslim law and married petitioner No. 1 of her own choice. The certificate of marriage had been presented before the Kazi. The scoring in Col. 7 below the figure 5525/26 was there from the beginning as there was mistake in writing arid the scoring at the bottom of Col 11 of the witness list was also there from the beginning because one person who had signed subsequently declined to be a witness. He had allowed the parties to take xerox copy of the registration certificate. In Cot. 8 the original writting was ‘On demand’.
I do not want to express any opinion at present regarding the overwritings in the marriage certificate but the fact remains that the Government appointed Kazi and the Moulavi have sworn the fact of marriage of petitioner No. 1 and petitioner No, 3.
16. Considering such facts, I am of the view that petitioner No. 3 is a major and out of her own volition had eloped with petitioner No. 1, they are purportedly married and are now living together. The continuance of the criminal prosecution against the petitioners is hence uncalled for. The process of law should not be utilised as an oppressive measure to disrupt .the life of two persons who have choosen their life to be together and nobody has a right to interfere with their chosen way. When two persons competent for the purpose decide to lead life together as husband and wife, the law of this country does not permit throwing of spanners in their life. As was observed in (1993)6 OCR 187 (supra) it is the mutual happiness of both persons which is of paramount consideration and since in this case it is apparently there, the criminal law cannot be allowed to be set in motion only for the purpose of breaking it. in saying so, I am conscious of the pangs suffered by the parents of petitioner No. 3 for the way she spurned the parental care and home and chose a boy of another community as her life partner much to their embarrassment and humiliation in their own society, but then sorrier events in life are irreversible and one has to better reconcile with it than take a journey against the current.
17. In the background of the facts discussed, it becomes apparent that the petitioners are being subjected to an investigation of offences they did not commit and that the provisions of the Code are being resorted to violate the freedom of the petitioners by illegally treating the petitioner No. 3 as a minor while she is not.
18. In the result, the petition is allowed and the FIR against the petitioners and the investigation ensued thereon in Purighat P. S. Case No. 91 of 1993 corresponding to G. R. Case No. 402 of 1993 pending in the Court of the Subdivisional Judicial Magistrate, Cuttack are quashed.