The Allahabad High Court while dismissing the petition observed that an accused who is below 18 years of age cannot seek protection on the ground of live in relationship with a major girl and thus cannot seek quashing of the criminal prosecution against him as his / her activity is not permissible in law and is thus illegal.
The Division Bench of Justice Vivek Kumar Birla and Justice Rajendra Kumar-IV passed this order while hearing a petition filed by the Victim and Another
The petition has been filed with the prayer to quash the First Information Report dated 30.4.2023, registered as Case under Sections 363, 366 IPC, P.S Pipari, District Kaushambi.
Further prayer has been made not to arrest the petitioner in the aforesaid case.
Admitted case of the petitioners is that the petitioners live in a relationship. The date of birth of the victim is 1.1.2004 and thus, she is major and aged about 19 years, whereas the date of birth of the petitioner no 2 is 15.3.2006 and therefore, he is minor and is aged about 17 years.
Submission of the counsel for the petitioners is that the petitioner no 1 is major and has left her house voluntarily, therefore, no offence under Section 363 IPC is made out, however, admittedly the boy is minor.
During course of arguments it transpired that the connected Habeas Corpus Writ Petition (Ali Abbas and others vs State of U.P and others) has been filed in respect of petitioner no 2-Ali Abbas, who is stated to be in the custody of the brother and other relatives of the victim.
It is submitted that both the petitioners were taken away by the family members of the victim, however, the petitioner no 1- victim, somehow ran away from the spot but the petitioner no 2- Ali Abbas is still in their custody, therefore, a habeas corpus petition was filed.
Per contra, counsel for the informant submitted that the offence under Section 366 IPC is made out. Whether it is a case of abduction, is yet to be investigated and therefore, merely because the girl is major and is in live in relationship with a boy, who is admittedly a minor i.e below 18 years, it cannot be said that the offence under Section 366 IPC is not made out.
He further submitted that the habeas corpus petition has been filed on false grounds.
The Court observed that,
The petition has been filed on the ground that the petitioner nos 1 and 2 are in a live-in relationship. The boy-petitioner no 2 is muslim. Live in relationship i.e “Zina” as per Muslim Law has been considered by Lucknow Bench of the Court in Criminal Misc Writ Petition (Kiran Rawat and another vs State of U.P and others) vide order dated 28.4.2023 and it has been noticed that in Muslim Law live in relationship is not permitted.
According to the definition ‘child’ means a person below the age of eighteen years. In other words, a person below the age of 18 years is considered to be a child. It is needless to say that the POCSO Act is a gender neutral Act and as such the definition of a child would apply on a male as well as on female person and if the male is below eighteen years of age he will also be treated as a child.
There can be no dispute that a child cannot have live in relationship and this would be an act not only immoral but also illegal as by itself live in relationship has not been given any protective umbrella under any law of the land except that two major persons have right to live their own life and to that extent their personal liberty is to be protected. However, it does not mean that a person, who cannot have protection under any law for having such a relationship because of being a child, can come forward to seek protection from any criminal prosecution on the ground of such relationship.
In other words, an accused who is below 18 years of age cannot seek protection on the ground of live in relationship with a major girl and thus cannot seek quashing of the criminal prosecution against him as his / her activity is not permissible in law and is thus illegal. If this is permitted, this would amount to putting a premium on an illegal activity and thus would not be in the interest of our society and we are not inclined to put a seal of approval on such legally impermissible activities.
The Court said that there are several conditions for a live-in relationship to be treated as a relationship in the nature of marriage. In any case, the person has to be major i.e 18 years of age although he may not be of marriageable age i.e 21 years. Therefore, this activity of live in relationship in the case, which is of an extremely short duration cannot come in support of the case of the petitioners. In any case, whether this act of ‘abduction’, which is covered under Section 366 IPC, by means of ‘any deceitful means induces’ and is result of inducement, is a matter of investigation and at this stage it cannot be said that no offence under Section 366 IPC is made out taking shelter of, as in the case, on the ground of impermissible live in relationship.
The Court further observed that,
In view of the undisputed fact in respect of age of the petitioner no 2 and categorical assertion that the petitioners are living in relationship, we find that whether any offence under Section 366 IPC is made out or not is yet to be investigated. As per A.G.A till date no one has come forward to cooperate in the investigation and till date no statement of any person has been recorded.
We have also considered the fact that the petitioner no 1-the alleged victim- has come forward to file supplementary affidavit stating therein that the petitioner no 1 is major and she had gone with the petitioner no 2 with her own freewill and since both the petitioners were living with each other but it is after filing of the petition on 13.5.2023 the informant side had kidnapped the petitioners from Prayagraj and took them to their village i.e Jalalpur Ghosi.
It is also stated that on 15.5.2023 the petitioner no 1-the victim somehow ran away and reached the place of father of the petitioner no 2 and narrated the entire story. In other words, she has come forward to file the affidavit against the prosecution case. The offence and date of incident of the alleged offence is 27.4.2023 as per first information report and it is merely within 15 days the petitioners were separated, therefore, to say that they have been living in a relationship is not worth believing, which is, at the best, only 15 days long. In any case, without going into that aspect of the matter as it is not a case where protection under any Act like Domestic Violence Act or any other Act as discussed above is being made, we find that no statement of the victim under Section 161 and 164 Cr.P.C have been recorded by the Investigating Officer or by the court. It is also pertinent to note that the petitioner no 1 has come forward to file this supplementary affidavit when admittedly she is in the company of the accused side.
The word ‘inducement’ has been defined in Black’s Law Dictionary as “The act or process of enticing or persuading another person to take a certain course of action”. The word ‘induce’ has been defined as “to make or persuade somebody to do something”. In Legal Glossary the word ‘induce’ has been defined as “to inspire, call forth or bring about by influence or stimulation” and word ‘inducement’ has been defined as “that which induces; something attractive by which a person is led on or persuaded to action”.
The element of inducement certainly affects the understanding of a person and persuades another person to take a certain course of action like in the case of running away from the house, living with a person, who is not major and is not even 18 years of age.
In the background of the facts as narrated above where no one is coming forward and not even the victim to get the statement recorded under Section 161 Cr.P.C or under Section 164 Cr.P.C, at this stage, it cannot be said that there is no use of force, or in any case, inducement.
Therefore, at this stage, there is no ground to be influenced by the argument that there is no such use of force or there is no element of inducement at this stage when the girl is coming forward from the company of the accused persons.
In the case, whether the element of inducement is there or not is yet to be investigated particularly in the background of the admitted facts of the case when nobody is coming forward for a recording statement. Thus, an act of abduction has been done and consequently offence is committed under Section 366 IPC or not is yet to be ascertained by the investigating agency.
“In such a view of the matter, we do not find any good grounds to grant any indulgence in the present case on the ground that the petitioners are in a live-in relationship. We find that it is not a fit case for exercising extraordinary jurisdiction under Article 226 of the Constitution of India”, the Court also observed while dismissing the petition.