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CR.MA/11930/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11930 of 2008
=========================================================
NEHALKUMAR
KIRANBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
MR
KK PANDEY for
Applicant(s) : 1,
MR.M.G.NANAVATI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 19/09/2008
ORAL
ORDER
Present
application is filed by the applicant ? org. accused under Section
482 of the Code of Criminal Procedure to quash and set aside the
complaint being FIR II-105 of 2008 filed at Padra Police Station,
Vadodara Rural, Dist; Vadodara dated 07/09/2008 for the offences
punishable under Sections 3, 5 and 6 of the Child Marriage Restraint
Act, 1929 (herein after referred to as ‘the Act’).
2. A
complaint has been lodged with Padra Police Station, Vadodara Rural
on 07/09/2008 against the applicant-org. Accused for the offence
punishable under Sections 3, 5 and 6 of the Act, alleging inter-alia
that though the age of the applicant ? org. accused No.1 was less
than 21 years at the relevant time when he married with daughter of
one ? Ashishbhai still the applicant married and even the said
marriage was registered before the Registrar of Marriages, Karkhadi,
Tal. Padra, Dist: Vadodara under the provisions of the Gujarat
Registration Marriages Act, 2006 and therefore it is alleged that at
the relevant time when the applicant married, he was less than 21
years and therefore the said complaint came to be filed by the
concerned Police Officer of Padra Police Station. Hence, the
applicant-org. Accused has preferred the present application for
quashing and setting aside the said complaint.
3. Shri
K.K.Pandey, learned Advocate appearing for the applicant-org. Accused
No.1 has made following submissions to raise the following
contentions in support of his prayer to quash and set aside the
impugned complaint.
That
the complaint has been filed with a mala-fide intention and only
to harass the applicant, as the marriage of the applicant with his
wife ? Shruti has not been liked by his in-laws.
The
complaint has been filed for the offences punishable under
Sections 3, 5 and 6 of the Act. However, in view of Section 21 of
the Prohibition of Child Marriage Act, 2006, the Child Marriage
Retrain Act, 1929 is repealed.
The
marriage of the applicant with Shruti was registered with the
Registrar of Marriages under the Gujarat Marriages Registration
Act and therefore it cannot be said that the applicant has
committed any offence as alleged.
To
continue the proceedings by way of aforesaid complaint, is abuse
of process of law.
4. Making
above submissions, it is requested to allow the present application
and to quash and set aside the FIR being lodged with Padra Police
Station, Vadodara Rural, Dist; Vadodara.
5. Shri
Maulik Nanavati, learned APP while opposing the application has
submitted that the questions of mala-fides are not required to be
considered at this stage and what is required to be considered is the
allegation and the averments in the complaint and whether it
discloses any cognizable offences or not, which requires further
investigation. It is also further submitted that by him that on bare
reading of the complaint and the allegations and the submissions, the
cognizable offence is made out which requires further investigation
and whether the applicant had completed the age of 21 years, is the
question which is required to be considered at the time of trial on
leading proper evidence. It is further submitted that even
considering Section 1 of the Prohibition of Child Marriage Act, 2006,
the same shall come into force on such date, as the Central
Government may, by notification in the official gazette, appoint; and
different dates may be appointed for different States and any
reference in any provision to the commencement of this Act shall be
construed in relation to any State as a reference to the coming into
force of that provision in that State.
6. It
is submitted that applicant has not come out with specific
Notification by the State of Gujarat, as contemplated under Section 1
(3) of the aforesaid Act and in absence of the said, it cannot be
said that the Prohibition of the Child Marriage Act, 2006 is adopted
and further notified by the State Government. It is, therefore,
requested to dismiss the present application.
7. Having
heard learned Advocates for respective parties and on bare reading of
the complaint and considering the averments and allegations in the
complaint, it prima-facie discloses cognizable offence which requires
further investigation. Applicant has not produced any documentary
evidence in support of his submission that at the relevant time, he
had already completed 21 years of age; whether the applicant ? org.
accused No.1 had completed 21 years of age or not is a question which
requires to be considered at the time of trial on leading proper
evidence.
8. The
question of mala-fides as alleged by the applicant are not required
to be considered at this stage and what is relevant is the act
alleged in the complaint and the allegation and submission in the
complaint. Under the circumstances, impugned complaint is not
required to be quashed and set aside by this Court in exercise of
powers under Section 482 of the Code of Criminal Procedure.
9. Now
so far as the contentions on behalf of the applicant that in view of
Section 21 of the Prohibition of Child marriage Act, 2006, the Child
Marriage Restraint Act, 1929 is repealed in concern, considering the
provision of Section 1 of the Prohibition of the Child Marriage Act,
2006, the said Act shall come into force on such date, as the
Central Government may, by notification in the official gazette,
appoint; and different dates may be appointed for different States
and any reference in any provision to the commencement of this Act
shall be construed in relation to any State as a reference to the
coming into force of that provision in that State. However, the
applicant has not produced any material to point out whether any
Notification has been issued / published by the State Government
appointing a particular date from which the State Act would come into
force. Hence, in absence of any material the prayer for the
applicant to quash the complaint on aforesaid ground cannot be
granted.
10. Considering
the above and for the reasons stated above, no case is made out to
quash the complaint / FIR in exercise of powers under Section 482 of
the CRPC. Hence the application deserves to be and is accordingly
dismissed.
(M.R.SHAH,
J.)
sompura
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