Ghanshyam Prasad, J.
1. Heard.
2. This application has been filed to quash the order dated 2.6.2006 passed by C.J.M., Kishanganj in Bahadurganj P.S. Case No. 16 of 2006 thereby and thereunder cognizance under Section 366(A) of the I.P.C. has been taken against both the petitioners.
3. As per allegation, the petitioners forcibly kidnapped the daughter of the informant Punam Kumari who was said to be aged about 14 years. The informant is mother of the victim. The police after investigation submitted chargesheet and, accordingly, the court below has taken cognizance against both the petitioners.
4. Annexure-3 is the statement of the victim Punam Kumari recorded under Section 164 Cr.P.C. In that very statement, she has given her age about 20 years. The court has also assessed her age 20 years. She has not only completely denied the allegation of kidnapping but has also stated that she with her own accord and free will has married with petitioner Prajapati Saran and is leading happy married life with him. On 26.3.2007, she was also produced in Chamber from After care home, she reiterated her earlier statement and claimed herself as major. A child aged about six months was also in her lap who has been born out of the alleged wedlock with petitioner No. 1. From physical appearance also she appeared to well developed lady.
5. However, the learned Counsel, for the opposite party No. 2 submitted that medical report goes to show that at the time of the occurrence she was minor and her age was in between 15-17 years. It is further submitted that the documents i.e. School Leaving Certificate and Admit Card filed by the petitioners are forged and fabricated for that counter affidavit alongwith report of District Superintendent of Education has been filed.
6. Kidnapping has been defined in Section 361 I.P.C. which is as follows:
361. Kidnapping from lawful guardianship.- whoever takes or entices any minor under (sixteen ) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
7. The most important ingredient of the offence is 'taking' or 'enticing' of the minor girl. The statement of the victim does not go to show that she was taken away by the petitioners or enticed away. Her statement goes to show that she entered into marriage with petitioner No. 1 with her own accord and free will. She also claims to lead happy marriage life. The child has also born out of the wedlock.
8. There is dispute with regard to actual age of the victim. However, one thing is clear that at the time of the alleged occurrence she was not a child of tender age incapable to understand the consequences. At present, she appears to have attained the majority. At the time of occurrence, she was on the verge of the majority. Therefore, mere on technicality the life of the victim can be allowed to be spoilt. Prosecution of her husband by any standard does not appear to be justified (see 1965 S.C. 942 (S. Vardh Rajan v. State of Madras).
9. Thus, taking into consideration, the holestic view of the case, I am of the opinion that the prosecution of the petitioners amounts to abuse of process of the court. Accordingly, this application is allowed. The impugned order is hereby quashed. However, the court below will continue to enquire into the allegation of forgery etc. as directed by this Court vide order dated 7.3.2007 passed in Cr.Misc.No. 28167 of 2006.