# Apex Court in the of Varadarajan v. State of

- **Citation:** (2013) 2 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-03
- **Case number:** Criminal Misc. Application No. 10525 of 2012
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/apex-court-in-the-of-varadarajan-v-state-of-42616
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482-
Prayer for quashing proceeding under
section 363, 366. the prosecutrix in
statement
under
section
164
has
admitted her age 19 yrs.-having brilliant
academic record not a case of enticing
away merely on elopement No offence
under section 363. 366 IPC made outproceeding quashed.

Held: Para-18
From the statement of the prosecutrix Sita it
could not be said that it was an act of 'taking
away or enticed away' rather it would be a
case of elopement as was indicated by the
Apex Court in the of Varadarajan Vs. State of
Madhya Pradesh, AIR 1965 Supreme Court,
942 where the Apex Court had distinguished
the case of taking or enticing away from the
mere
act
of
elopement
and
in
that
connection has pointed out that even if a
lady, who had not attend the majority i.e the
age of 18 years herself goes with a man of
her own volition then it could not be said to
be a case of either taking away or enticing
away a minor women out of keeping of her
lawful guardianship. It was further held that
in such factual situation no offence either
under sections 363, 366-A or 366 I.P.C could
be said to be made out. The Apex Court in
the case of Jaimala Vs. Home Secretary,
Government of Jammu and Kasmir, AIR
1982 SC 1297 has held that in addition of
three years is to be made to medically assess
the age and thus from the medical report of
the prosecutrix it is evident that she is aged
about 19 years of age.

Case Law discussed:
AIR 1965 Supreme Court, 942; AIR 1982 SC 1297

## Text

2 All] Chandan Vs. State of U.P. and another
653
Orders dated 3.10.2012 and 31.1.2013,
therefore, does not amount to any act of
hostile discrimination so as to accept the
arguments of the petitioners. The fixation can
also be construed to be in the interest of
students to provide energetic and suitably
aged Instructors for teaching the category of
Primary and Junior classes. There is no
irrationality in making such a provision. A
little more relaxation would be convenient or
alternatively acceptable as a better option is a
matter of policy which does not fall within
the powers of a court to fix. Since the
Scheme has been brought into existence in
the 2012-13 session, the cut-off-date has a
rational nexus and cannot be discarded on the
ground of being implemented later on in
2013. The invitation and sorting of
applications that are likely to be huge in
number does consume some time and,
therefore, a date in relation thereto prior to
the advertisement cannot be arbitrary merely
because the consequential processing is to be
effected later on. The provision of not having
an age bar in other schemes or in a girls
institution cannot be a comparable argument
to declare the upper age limit as arbitrary.

12. None of the arguments, thus,
advanced by the petitioners holds water
and the challenge raised lacks merit. The
petitions are, accordingly, dismissed with
no order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2013

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 10525 of 2012

Chandan

 ...Applicant
Versus
State of U.P. and another ...Respondents
Counsel for the Applicant:
Sri Manikant Srivastava
Sri Jai Singh Chandel

Counsel for the Respondents:
A.G.A., Sri M.C. Singh
Sri Dushyant Singh

Code of Criminal Procedure-Section 482-
Prayer for quashing proceeding under
section 363, 366. the prosecutrix in
statement
under
section
164
has
admitted her age 19 yrs.-having brilliant
academic record not a case of enticing
away merely on elopement No offence
under section 363. 366 IPC made outproceeding quashed.

Held: Para-18
From the statement of the prosecutrix Sita it
could not be said that it was an act of 'taking
away or enticed away' rather it would be a
case of elopement as was indicated by the
Apex Court in the of Varadarajan Vs. State of
Madhya Pradesh, AIR 1965 Supreme Court,
942 where the Apex Court had distinguished
the case of taking or enticing away from the
mere
act
of
elopement
and
in
that
connection has pointed out that even if a
lady, who had not attend the majority i.e the
age of 18 years herself goes with a man of
her own volition then it could not be said to
be a case of either taking away or enticing
away a minor women out of keeping of her
lawful guardianship. It was further held that
in such factual situation no offence either
under sections 363, 366-A or 366 I.P.C could
be said to be made out. The Apex Court in
the case of Jaimala Vs. Home Secretary,
Government of Jammu and Kasmir, AIR
1982 SC 1297 has held that in addition of
three years is to be made to medically assess
the age and thus from the medical report of
the prosecutrix it is evident that she is aged
about 19 years of age.

Case Law discussed:
AIR 1965 Supreme Court, 942; AIR 1982 SC 1297

(Delivered by Hon'ble Ramesh Sinha, J)
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

1. Heard Sri Jai Singh Chandel, learned
counsel for the applicant, learned A.G.A for
the State and Sri M.C. Singh, learned counsel
appearing on behalf of opposite party No.2.

2. The applicant, through the present
application under section 482 Cr.P.C. has
invoked the inherent jurisdiction of this
Court with a prayer to quash the
proceeding in S.T. No. 11 of 2012, under
sections 363 and 366 I.P.C, pending in the
court
of
Addl.
Sessions
Judge,
Anoopshahar, Bulandshahar

3. The brief facts of the case are that
a First Information Report was lodged by
the opposite party No.2 the father of the
prosecutrix (hereinafter referred to as the
complainant) against the applicant and
two other persons namely Hosiyar son of
Khacheru and Jagdish son of Teja
alleging that on 19.5.2011 at about 4.00
P.M. in the morning his daughter aged
about 15- 16 years had gone to attend call
of nature in the Jungle which was near the
house of the complainant and when she
did not return he made a search of her
daughter and came to know that her
daughter was enticed away by Chandan
son of Dharamveer (applicant), Hosiyar
Singh son of Khacharu and Jagdish son of
Teja. He made a search of her daughter
from his relatives and also made a search
of by three above named accused persons
but they could not be traced. It is stated
that several persons of the village have
seen her daughter being taken by the said
accused persons. The accused persons are
influential
and
men
of
criminal
antecedent,
hence,
he
prayed
for
registration of First Information Report
against them.

4. The F.I.R of the incident was
lodged by the complainant on 22.5.2011
at police station Anoopshahar, District
Bulandshahar which was registered as
Case Crime No. 34/11, under sections 363
and 366 I.P.C.

5. The medical of the prosecutrix
was done on 15.7.2011 and her statement
was recorded under section 161 Cr.P.C on
12.7.2011 and the statement of the
prosecutrix recorded under section 164
Cr.P.C
was
recorded
on
16.7.2011
respectively.

6. The investigation was carried out
and thereafter charge sheet was submitted
against the applicant and two other coaccused persons namely Hosiyar Singh
and Jagdish, under sections 363 and 366
I.P.C on 31.9.2011 and the Chief Judicial
Magistrate,
Bulandshahar
took
cognizance of the offence and registered
the case as Case No. 6416 of 2011 and
committed the case to the Court of
Session.

7. The applicant has approached this
Court
for
quashing
of
the
entire
proceedings of S.T. No. 11 of 2012, under
sections 363 and 366 I.P.C pending in the
Court of Additional Sessions Judge,
Anoopshahar, District Bulandshahar by
filing the present 482 Cr.P.C application.

8. It has been contended by the
learned counsel for the applicant that the
applicant is the nephew of co-accused
HosiyarSingh with whom the prosecutrix
Sita had married. She is a major girl aged
about 19 years, as per the medical report
which is based on ossification test which
was conducted on 15.7.2011 by the order
of the C.M.O. A medical certificate has
been issued by the C.M.O on 15.7.2011
which has been annexed as Annexure-4 to
the accompany affidavit. He further
2 All] Chandan Vs. State of U.P. and another
655
pointed out that as per the statement of the
prosecutrix Sita recorded under section
164 Cr.P.C on 16.7.2011 she has admitted
that she was known to co-accused Hosiyar
Singh for the last four years and she stated
that she had left her house voluntarily
with co-accused Hosiyar Singh who had
not enticed her and they had gone to
Jaipur where they lived in rented house
for about 15-20 days. Thereafter had gone
to Aligarh where they got themselves
married in Arya Samaj Mandir then they
went to Sikandarabad and lived there for
about one month. Co-accused Hosiyar
Singh was working in a private company.
It was further stated by her that she had
established sexual relationship with coaccused Hosiyar Singh on her own sweet
will and she married him and she want to
go
with
her
husband.
She
was
apprehending danger to her life from the
members
of
her
family.
It
was
categorically stated by her that the
applicant and co-accused Jagdish did not
commit any rape on her and they have
been falsely implicated by the member of
her family. The said statement of the
prosecutrix
has
been
annexed
as
Annexure 5 at page 11 of the accompany
affidavit.

9. In view of the said statement of
the prosecutrix under section 164 Cr.P.C
it was submitted that the prosecutrix was
a major girl and she has left her parents'
house with her own sweet will and had
accompanied with co-accused Hosiyar
Singh and stayed with him at several
places and returned after two months of
the incident when she was arrested by the
police and handed over to her parents.
Hence no offence under sections 363 and
366 I.P.C is made out against the
applicant and his prosecution in the case
is liable to be quashed by this Court.

10. It was further submitted that the
applicant has been nominated in the
present case merely because he is nephew
of co-accused Hosiyar Singh. It has been
pointed out that the applicant is a student
of M.Sc and having good academic
record. He has passed out first class in
High School and Intermediate and in B.Sc
IInd year by obtaining more then 80% of
mark. The academic record of the
applicant has been annexed as AnnexureR.A-1 at page Nos. 5 to 10.

11. Sri M.C. Singh, learned counsel
for the complainant-opposite party No.2
has vehemently opposed the prayer for
quashing of the proceedings against the
applicant and has submitted that the
charge sheet discloses cognizable offence
against the applicant, hence he is liable to
be tried by the Court below. He further
submitted that the prosecutrix is a minor
girl as stated in the First Information
Report lodged by the father of the
prosecutrix. He has also drawn the
attention of the Court to the High School
certificate of the prosecutrix which has
been annexed as C.A-1 at page Nos. 13
and 14, according to which the date of
birth of the prosecutrix is 9.9.1995. She is
minor girl aged about 16 years on the date
of the incident. He further submitted that
at the time of incident she was minor,
therefore her consent is immaterial.

12. Learned A.G.A also adopted the
argument of the learned counsel for the
complainant.

13. Considered the submission
advanced by the learned counsel for the
parties.

14. From the perusal of the record, it
is apparent that the prosecutrix, as per
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
medical opinion, is aged about 19 years
and in her statement recorded under
section 164 Cr.P.C she has categorically
stated that she has voluntarily left her
parents' house on 19.5.2011 and had
accompanied with co-accused Hosiyar
Singh and travelled at several places and
enjoyed
with
company
and
further
married him at Aligarh and established
sexual
relationship
with
co-accused
Hosiyar Singh and remained with him for
about two months.

15. So far as the contention of the
learned counsel for the opposite party
No.2/complainant that the prosecutrix was
a minor girl at the time of incident as per
High School certificate, hence her consent
was immaterial does not appears to be
sustainable in the eyes of law.

16. The learned counsel for the
complainant appears to have made the said
argument thinking that when there was a
medical report assessing the age of victim
and simultaneously there was a record
indicating that the date of birth of the victim
as mentioned in the school record then the
preference had always to be given to the
school record and not to to the medical
record. It is relevant point out here that there
was no such law which could justify the
argument of the learned counsel for the
complainant that in case of present nature the
assessed aged of the victim for the offence of
the present nature has to be recorded in the
light of the entries made in the school record.
Probably the learned counsel for the
complainant was having in his mind the
provision of Juvenile Justice (Care and
Protection ) Rules 2007 which by virtue of
Rule 12 had granted credence to the age of
the victim of such an offence which is
mentioned in the High School certificate
over the medically assess the age of the
victim.

17. In my opinion it is misreading of
law which appears leading the learned
counsel for the complainant to raise the
said argument. In the present case the age
of prosecutrix is 19 years and as such she
was a major and she was not an accused.
She was not a juvenile in conflict with
law and as such she could not be
subjected to wrong interpretation of law.

18. From the statement of the
prosecutrix Sita it could not be said that it
was an act of 'taking away or enticed
away' rather it would be a case of
elopement as was indicated by the Apex
Court in the of Varadarajan Vs. State of
Madhya Pradesh, AIR 1965 Supreme
Court, 942 where the Apex Court had
distinguished the case of taking or
enticing away from the mere act of
elopement and in that connection has
pointed out that even if a lady, who had
not attend the majority i.e the age of 18
years herself goes with a man of her own
volition then it could not be said to be a
case of either taking away or enticing
away a minor women out of keeping of
her lawful guardianship. It was further
held that in such factual situation no
offence either under sections 363, 366-A
or 366 I.P.C could be said to be made out.
The Apex Court in the case of Jaimala
Vs. Home Secretary, Government of
Jammu and Kasmir, AIR 1982 SC 1297
has held that in addition of three years is
to be made to medically assess the age
and thus from the medical report of the
prosecutrix it is evident that she is aged
about 19 years of age.

19. Admittedly, as per the statement
of the prosecutrix no offence under
sections 363 and 366 I.P.C is made out
against the applicant. Moreover the
academic record of the applicant also
2 All] Danish and others Vs. Syed Shahenshah Husain
657
shown that he is a brilliant student and his
implication by the complainant in a mala
fide manner cannot be ruled out.

20. In view of the above, the
prosecution of the applicant in the
aforesaid case is wholly unwarranted and
is hereby quashed, accordingly.

21. The petition stands allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 11609 Of 2013

Danish and others
 ...Petitioners
Versus
Syed Shahenshah Husain ...Respondent

Counsel for the Petitioners:
Sri Bharat Pratap Singh

Counsel for the Respondent:
Sri S.P. Singh

Court Fee Act-Section 7 (IV) (c) and 7
(IV)(a)- Suit for cancellation of will
decided in favor of plaintiff-objection that
Court fee must be as per valuation of
property-held defendant No legal right to
challenge the Court fee-which is between
plaintiff and the Court-no error committed
by Revisional Court-petition dismissed.

Held: Para-6
I do not find any error in the view of the
lower revisional court. The matter of court
fees is in between the plaintiff and the
State. Defendant has go no concern with
it. The suit has been filed before Civil
Judge (S.D.) whose upper jurisdiction is
unlimited.

Case Law discussed:
AIR 2010 SC 2807; 2013(1) SCC 579; 2010
(12) SCC 112; AIR 1961 SC 1299; 2012 (117)
RD 249 (SC)

(Delivered by Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
petitioners and Sri S.P. Singh, learned
counsel for respondent, who has appeared
through caveat.

2. Respondent has instituted O.S.
No.1276 of 2009, Syed Shahenshah
Husain Vs. Danish and others. Relief
claimed in the suit is for declaration to the
effect that the will claimed to have been
executed on 11.01.2008 by Syed Wasi
Jafar in favour of defendant No.1 be
declared
null
and
void.
Relief
of
permanent prohibitory injunction has also
been
sought.
Relief
of
mandatory
injunction was also sought for delivery of
possession to the plaintiff in case it was
found that defendants were in possession.
Defendants filed written statement and
raised pleas of under valuation of the suit
and insufficiency of court fees paid on the
plaint. In para-15 of the plaint, Relief-(A)
for declaration was valued at Rs.2 lacs
and relief-(B) was also valued at Rs.2
lacs, total Rs.4 lacs. Issues were framed.
Issues No.3 & 4 related to valuation and
court fees. Additional Civil Judge (S.D.),
Court No.1, Bulandshahar decided the
said issues in favour of the plaintiff on
07.08.2012. The defendants petitioners
had contended that valuation of the suit
for the purposes of jurisdiction and court
fees must be on the basis of market value
of the property regarding which Will was
executed and ad voleram court fees
should have been paid. The trial court
placed reliance upon Surhid Singh Vs.
Randhir Singh, AIR 2010 SC 2807
holding that if the relief is for declaration