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Judgment
M.R. Shah, J.—By way of this petition under Article 226 Constitution of India read with Section 482 of the Code of Criminal Procedure the Petitioner No. 1-wife of Respondent No. 2 and Petitioners Nos. 2 and 3-son and daughter of Respondent No. 2 original complainant have prayed to quash and set aside the impugned Complaint registered before the Rajkot ''A'' Division Police Station, being Criminal Case No. I 427/2002, filed for the offence punishable u/s 363 read with Section 114 of the Indian Penal Code.
Petitioner No. 1 is the wife of Respondent No. 2-original complainant, Petitioner No. 2 is the daughter and Petitioner No. 3 is the son of Respondent No. 2-original complainant, who are residing/staying with Petitioner No. 1-mothers. Petitioner No. 1 and Respondent No. 2 also has one Anr. daughter named Shraddha, who was residing and staying with Respondent No. 2-original complainant pursuant to the judgment and order passed by the learned Joint District Judge, Rajkot dated 14/03/2007 in Civil Miscellaneous Application No. 1056/2006, which came to be confirmed by the learned Single Judge of this Court vide order dated 22/07/2008 passed in First Appeal No. 3367/2007. At present daughter Shraddha is minor, who is aged 13 years. It appears that the said minor daughter, Shraddha, left the house of Respondent No. 2-original complainant-father and has gone to stay with Petitioner No. 1-mOrs. and according to Respondent No. 2-father she was abducted by the Petitioners, and, therefore, he filed/lodged the Complaint with the Rajkot ''A'' Division Police Station for the offence punishable u/s 363 read with Section 114 of the Indian Penal Code, which has been registered as FIR/Complaint, being Criminal Case No. I 427/2010. During the investigation of the said Complaint, the Investigating Officer of Rajkot ''A'' Division Police Station took the custody of minor daughter Shraddha and she was produced before the learned Magistrate and the learned Magistrate sent the said minor daughter, Shraddha, to Nari Samraksha Gruh, and, therefore, the Petitioners have preferred the present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.
Shri Ashish Dagli, learned advocate appearing on behalf of the Petitioners has vehemently submitted that the impugned Complaint/FIR is nothing but abuse of process of Court and law in as much as the minor daughter, Shraddha has come voluntarily to reside with Petitioner No. 1 because of ill treatment by Respondent No. 2-father at the instance of Respondent No. 5-Nitaben , who is staying with Respondent No. 2 alongwith with her two daughters. It is submitted that even the minor daughter, Shraddha has specifically given the statement that she has gone voluntarily to stay with the Petitioners i.e. her mOrs., brOrs. and sister, and, therefore, there is no question of committing any offence u/s 363 read with Section 114 of the Indian Penal Code as alleged by Respondent No. 2 in the impugned Complaint.
In response to the notice issued by this Court Respondent No. 2-father has remained present in the Court and has stated that he does not want to engage an advocate. He has submitted that as such the custody of his minor daughter, Shraddha, was with him pursuant to the order passed by the learned Joint District Judge, Rajkot dated 14/03/2007 in Civil Miscellaneous Application No. 1056/2006 and at that time his daughter, Shraddha was aged four years and he has taken care of his daughter till 16/12/2010, the day on which the Petitioners abducted his minor daughter, Shraddha. It is submitted by Respondent No. 2 that as such there was no ill treatment by Respondent No. 2 at all and under the influence of the Petitioners now the minor daughter, Shraddha is making allegations against him and Respondent No. 5 with respect to ill treatment.
Considering the stand taken by his minor daughter, Shraddha and her statement that she wants stay with the Petitioners only, Respondent No. 2 has stated that he will not come in the way of his daughter, Shraddha, as her happiness would be his happiness and she may go as per her wish. However, he has requested that he may be permitted to meet his minor daughter, Shraddha fortnightly or as this Court deems it fit.
Shri Dagli, learned advocate appearing on behalf of the Petitioners and minor daughter, Shraddha, has stated at the bar that she has no objection and she cannot have any objection to meet Respondent No. 2, however, she is apprehending ill treatment.
Heard Shri Dagli, learned advocate appearing on behalf of the Petitioners and Respondent No. 2-party-in-person.
Respondent No. 2 was heard in person on 29/12/2010 and he made the statement recorded hereinabove. Considering the dispute between the father, mOrs. and the children, this Court kept the matter in chamber so as to know the wish of the minor daughter, Shraddha. The minor daughter, Shraddha, in presence of Respondent No. 2 and Petitioner No. 1 has specifically stated that she wants to reside and stay with the Petitioners and she does not want to stay with Respondent No. 2 at his residence. She has also specifically stated in presence of Respondent No. 2 that she has gone voluntarily to stay and reside with the Petitioners on 16/12/2010 because of ill treatment by Respondent No. 2 at the instance of Respondent No. 5, who is staying with Respondent No. 2 alongwith her two daughters. It appears to the Court that the minor daughter, Shraddha, has made a statement before this Court, is matured enough to take her own decision and it is to be noted that Petitioner No. 1 is her natural mOrs. and Petitioners Nos. 2 and 3 are her brOrs. and sister. In view of the aforesaid statement made by the minor daughter, Shraddha, it cannot be said that the Petitioners have committed any offence as alleged u/s 363 read with Section 114 of the Indian Penal code. Under the circumstances, to continue with the criminal proceedings against the Petitioners would be abuse of process of Court and law and harassment to the Petitioners as well as minor daughter, Shraddha.
In view of the above, it appears to the Court that this is a fit case to exercise the powers under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure to quash and set aside the impugned Complaint/F.I.R. and the minor daughter, Shraddha is allowed to stay and reside with the Petitioners as per her wish. So far as the apprehension on the part of Respondent No. 2 that the Petitioners may go to Anr. village along with his minor daughter, Shraddha is concerned, Shri Dagli, learned advocate appearing on behalf of the Petitioners has stated at the bar, under instructions from the Petitioners, that she is not going to be shifted to any Ors. village/town/city.
For the reasons to be followed in the judgment and order and considering the wish of the minor girl namely Shraddha, present application is allowed and the impugned Complaint/FIR being C.R. No. I 427/2010 registered with the Rajkot ''A'' Division Police Station is hereby quashed and set aside and custody of minor Shraddha is hereby quashed and set aside and custody of minor Shraddha d/o Kamlesh Hiralal Bagdi is ordered to be handed over to her mOrs. i.e. Jyotsnaben. Rule is made absolute to the aforesaid extent. Direct service is permitted today.