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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 28TH DAY OF APRIL, 2015

BEFORE

THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA

CRIMINAL PETITION NO.7613/2014

BETWEEN:

BHARATHRAJ GUMPPE S/O BABU BELCHAPPADA, AGED 24 YEARS, # 3-130A, MADUPALLA, EARA, BANTWAL - 574 323 DAKSHINA . ... PETITIONER (BY SRI ARUNA SHYAM M., ADV.)

AND:

1. THE STATE OF KARNATAKA BY ULLALA POLICE SOUTH SUB-DIVISION, CITY, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA, BANGALORE- 560 001.

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2. KHALEEL AHMED SHEIK S/O LATE SHEIK ABDUL LATHIF, MAJOR, ‘INSHA MANZIL’ NEAR STELLA MARY’S SCHOOL, KOTEKAR, MANGALORE CITY -575 004, DISTRICT. ... RESPONDENTS (BY SRI VIJAY KUMAR MAJAGE, HCGP FOR R1; SRI B. LETHIF, ADV. FOR R2)

THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO QUASH THE COMPLAINT FILED BY THE 2ND RESPONDENT, THE FIR IN CRIME NO.342/2014, FOR THE OFFENCES PUNISHABLE UNDER S.366 R/W S.34 OF THE IPC, PENDING ON THE FILE OF III-JMFC, M.G.ROAD, CORPORATION BUILDING, MANGALORE.

THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

The petitioner, working as a Conductor, fell in love with Miss. Insha Khaleel, aged about 19 years and a student of I B.B.M. Course in St. Agnes College,

Mangaluru i.e., the daughter of the 2 nd respondent and on

19.11.2014 married her in the Meeting Hall of Sri

Seetharamanjaneya Bharathi Mandir, Yenmur Village,

Sullia, Dakshina Kannada. The couple, thereafter, got published the matter relating to solemnization of their

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marriage, in “Jaya Kirana”, a local newspaper. The

petitioner’s wife informed the 2 nd respondent and also the

jurisdictional police, the solemnization of her marriage.

2. The 2 nd respondent having lodged a complaint, the first respondent – Ullala Police, registered a case in

Crime No.342/2014, for the offence punishable under

S.366 r/w S.34 of IPC, against the petitioner and three others and submitted FIR to the III JMFC, Mangaluru, D.K.

This petition was filed, under S.482 Cr.P.C., to quash entire proceedings relating to the said case.

3. The 2 nd respondent had filed WPHC

No.228/2014, as against the State and also the petitioner, to issue a writ of Habeas-Corpus, to produce Insha Khaleel and set her at liberty. The petitioner and his wife Smt.

Inchara @ Insha, having suo-motu appeared, on

28.11.2014, the said petition was dismissed.

4. Sri Aruna Shyam, learned advocate, contended that the petitioner having not committed any offence and

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the ingredients of the alleged offence having not been

stated in the complaint filed by the respondent No.2, the

investigation of the case being an empty formality or futile

exercise, resulting in waste of public time and money, the

impugned proceeding be quashed. According to the

learned advocate, the allegations made in the complaint do

not constitute a cognizable offence justifying the

registration of a case and an investigation thereon. He

submitted that the petitioner married Insha Khaleel @

Inchara, with her consent, in the presence of friends, well

wishers and family members and is leading married life.

He submitted that there being no material of whatsoever

nature, in support of the allegations made in the

complaint, the first respondent is wholly unjustified in

registering the case and submitting FIR to the Magistrate.

He further submitted that the petitioner is apprehending

threat to his life and liberty, since, his wife, earlier

belonged to a different religion and as the 2 nd respondent and his supporters are influential and politically powerful,

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are likely to cause harm or harassment to the married

couple.

5. Sri Vijay Kumar Majage, learned HCGP,

submitted that the first respondent would investigate the

case and submit final report to the jurisdictional

Magistrate. He submitted that the petition being

premature is liable to be dismissed.

6. Mr. B.Lethif, learned advocate, submitted that

in view of non-return of Miss Insha Khaleel, on

17.11.2014, from the College, the 2 nd respondent having learnt that the petitioner and his friends kidnapped and are forcing her to marry, lodged the complaint on 19.11.2014 and a case in Crime No.342/2014 was registered by the first respondent. He submitted that the case requires investigation by the police, to find out, whether there is kidnapping or abduction or inducement of Insha Khaleel, to compel her marriage etc.

7. Perused the petition and considered the rival contentions. The point for consideration is, whether, the

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woman – Insha Khaleel, was abducted to, with the intension to compel her to marry against her wish or for the purposes appearing in

S. 366 IPC?

8. In the earlier paragraphs, I have already adverted to certain factual details about the solemnization of the marriage of the petitioner and Insha Khaleel, whose date of birth, as per the SSLC Marks Card, is 03.10.1995.

As on 17.11.2014, Insha Khaleel was a major. The marriage solemnized on 19.11.2014 was published in

“Jaya Kirana”, Kannada Newspaper. Insha Khaleel @

Inchara has notified both respondents about the solemnization of her marriage with the petitioner.

9. On a complaint made by the 2 nd respondent, a case in Crime No.342/2014 was registered by the first respondent. On 27.11.2014, WPHC No.228/2014 was filed by the 2 nd respondent, to issue writ of Habeas Corpus and direct the respondents, to set at liberty Insha Khaleel. The said petition was dismissed on 28.11.2014 as misconceived.

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10. The petitioner and the 2 nd respondent are from different religions. Apprehending that the 2 nd respondent

may cause harassment and/or initiate proceedings, Insha-

Khaleel @ Inchara has notified the solemnization of her

marriage and requested both respondents, not to disturb

or harm the petitioner and allow herself to live happily.

11. On perusal of the record and the submissions

made by the learned advocates, it is clear that Insha

Khaleel, the daughter of the 2 nd respondent, is a major and was at all relevant times a major. Hence, she was free to marry anyone she likes or live with anyone she likes.

There is no bar in law for a inter-caste or inter-community or inter-religious marriage. Hence, no offence was committed by the petitioner and his friends, who have been named in the impugned FIR.

12. To constitute an offence under S. 366 IPC, it is necessary to show that the accused induced the woman or compelled by force to go from any place and that such

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inducement was by deceitful means; that such abduction has taken place with the intent to forcefully marry or that she may be induced for illicit intercourse and/or that the accused knew it to be likely that she may be seduced to illicit intercourse as a result of her abduction. Mere abduction of a woman does not bring an accused under the ambit of S.366 IPC. To proceed against an accused, under S.366 IPC, it must be alleged that the accused abducted the woman with the intent that she may be complelled or knowing it to be likely that she will be compelled to marry any person / or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the complaint contains the allegation that the abduction was for the purposes mentioned in

S.366 IPC, a case for the offence under S.366 IPC cannot be registered.

13. The instant case is a classic example of mechanical registration of case by the 1 st respondent for

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the offence under S.366 IPC. The impugned action of the

first respondent is an abuse of process of law, at the

instance of the 2 nd respondent, who appears to have got annoyed, on account of marriage of his daughter, outside his religion.

14. In LATA SINGH Vs. STATE OF U.P. AND ANOTHER,

(2006) 5 SCC 475 , the petitioner therein, married a man belonging to another caste and began to live with him.

Her brother filed a criminal complaint accusing her husband of commission of the offences under Ss. 366 and

368 IPC, thereby, leading to the commencement of trial proceedings. A writ petition having been filed in the Apex

Court, while observing, that a live-in-relationship between two consenting adults of hetrogenic sex, does not amount to any offence, even though it may be perceived as immoral, it was held, that a major girl is free to “marry anyone she likes” or “live with anyone she likes.” In the factual background of the case, it was held, that no offence was committed by any of the accused and the whole

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criminal case in question is an abuse of process of the

Court. The observations made and the directions issued therein, being relevant to the instance case, is extracted herein below:

“14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.

15. We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.

16. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

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17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter- religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”

(emphasis is supplied)

15. In FAZLE GAFFAR KHAN AND OTHERS Vs. STATE

OF WEST BENGAL, (2010) 10 SCC 10, the appellant therein,

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facing criminal proceedings on a charge under S.366 IPC, on the allegation that he kidnapped a minor girl, having moved a petition under S.482 Cr.P.C. and not able to get the relief in the High Court, filed an appeal before the Apex

Court. An affidavit of the girl was filed stating that she was married to the appellant – accused. In the light of the said affidavit of the girl admitting the marriage between her and the appellant and the statement made by the learned advocate for the appellant, that a child has been born, in the interest of justice, the appeal was allowed and the criminal proceedings was quashed.

16. In ASHOK KUMAR TODI Vs. KISHWAR JAHAN AND

OTHERS, (2011) 3 SCC 758 , a man fell in love with a girl and married her, in the Marriage Registration Office, under the

Special Marriage Act, 1954. The girl having left her father’s house and started living in her husband’s house, the couple informed the police authorities about their marriage. The girl also informed her father about her marriage and the fact of she residing with her husband in

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her in-laws’ house. The girl’s father and his relatives, then, went to the matrimonial house and attempted to persuade the persons therein, to send back the girl. The request having been turned down, a complaint was lodged.

As a result, two police officials, went to the house of the accused to create mental pressure on him. Despite the same, the police, who had no role in their conjugal affairs and as the law enforcing authority had no right to interfere in their married life and were in fact duty bound to prevent others, who interfere with their married life, had registered a criminal case and attempted to interfere in the marital life of said persons, the proceedings having been assailed and when the matter ultimately reached the Apex Court, the police having failed to give effect to the directions issued in LATA SINGH’s case (supra), while reiterating that the directions issued are not intended to be brushed aside and overlooked or ignored and that the meticulous compliance is the only way to respond to the directions issued, it was held as follows:

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“38. In the light of the direction in Lata Singh case, it is the duty of all persons in the administration/police authorities throughout the country that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage, their marital life should not be disturbed or harassed and if anyone gives such threat or commits acts of violence or instigates, it is the responsibility of the officers concerned to take stern action against such persons as provided by law.”

17. In the instant case, on 23.04.2015, after hearing the learned advocates on both sides, it was ordered as follows:

“Since it was submitted by Sri Aruna Shyam, learned advocate that the petitioner married Miss Insha Khaleel on 19.11.2014 and that WPHC No.228/2014 filed by respondent No.2 herein was disposed of on 28.11.2014, in order to find out whether there was any kidnapping, abducting or inducing her to compel her marriage i.e., in terms of Section 366 of IPC, the petitioner and said Insha Khaleel @ Inchara are directed to appear before court on 28.04.2015. It is open for Sri B. Lethif, learned advocate appearing for respondent No.2 to keep the 2 nd respondent also present before the Court. Interim order passed earlier shall operate till next hearing date.”

Pursuant to the aforesaid order, the petitioner and

Smt. Inchara, appeared before this Court and submitted

that, though, they hailed from different religions, they

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having fell in love, married on 19.11.2014. Insha Khaleel

@ Inchara, submitted that there was neither kidnapping nor abduction much less any inducement by the petitioner or his friends and relatives on 17.11.2014. She submitted that, she left her parents’ home voluntarily and accompanied the petitioner on 17.11.2014 and with her consent there is solemnization of her marriage on

19.11.2014. Both of them further submitted that they would like to lead a peaceful married life.

18. There being no dispute that Insha Khaleel @

Inchara was a major as on 17.11.2014, i.e., the date on which she did not return home from the college and on

19.11.2014, i.e., the date on which her marriage with the petitioner was solemnized and her father lodged a complaint before respondent No.1, she being a major, was free to marry anyone she liked. Since, Insha Khaleel @

Inchara submitted before this Court, that there was no kidnapping or abduction or any inducement and that her marriage with the petitioner was with her consent, I am

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satisfied that no offence falling within the scope of S. 366

IPC was committed by the petitioner and three others, against whom the first respondent has registered the FIR in question. The impugned FIR falls within the categories of cases given by the Apex Court at Sl.Nos.(1) (2) (3) and

(5) of para 102 in the classic case of STATE OF HARYANA v.

BHAJAN LAL, (1992) Supp (1) SCC 335.

19. As there is abuse of process by the first respondent, at the instance of the 2 nd respondent, the case

registered in Crime No.342/2014 and FIR submitted to the

III JMFC, D.K., Mangaluru City, being against the law laid

down in the case of LATA SINGH (supra), is liable to be

quashed, in its entirety.

In the result, the petition is allowed and FIR in Crime

No.342/2014 submitted by the 1 st respondent to the III

JMFC, D.K., Mangaluru City is quashed. Keeping in view

the decisions in LATA SINGH and ASHOK KUMAR TODI

(supra), a direction is issued that the 1st respondent shall ensure that neither the petitioner nor his wife are harassed

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or threatened nor any acts of violence is committed against them. If anybody is found doing so, such person/s should be proceeded against, in accordance with law, by the law enforcing authorities.

Ordered accordingly.

Sd/- JUDGE

sac* ca.