# Vishal Jaiswal & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-26
- **Bench:** Ajai Lamba, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-jaiswal-anr-v-state-of-u-p-ors-44363
- **Pages:** 16

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604 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Misc. Bench No.- 10724 Of 2016

Vishal Jaiswal & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Indrajeet Shukla

Counsel for Respondents:
Govt. Advocate.

Legislation referred to : Indian Penal Code, 1860 - Ss. 361, 363, 366; Constitution of India - Art. 226;
Code of Criminal Procedure, 1973 - Ss. 164, 482

FACTS:
Petitioner No. 1 (Vishal) and Petitioner No. 2 (the prosecutrix/alleged kidnappee) got married on 20.04.2016
of their own free will and accord. Respondent No. 4 (father/complainant of the prosecutrix), not accepting the
said marriage, lodged First Information Report bearing Case Crime No. 60 of 2016 under Sections 363 and
366 I.P.C. at Police Station Mankapur, District Gonda against the petitioners. In the course of investigation,
statement of the prosecutrix/petitioner No. 2 was recorded under Section 164 Cr.P.C. wherein she
categorically stated that she had not been kidnapped, that she had voluntarily gone and married Vishal
(Petitioner No. 1), and that she wanted to live with him as his wife. She further stated that she had been
subjected to beatings by her father and had been forced to discontinue her education on account of her love
for Vishal. She expressed apprehension of danger to her life at the hands of her parents. The medical
examination report (Annexure SCA-2) disclosed the radiological/medical age of the prosecutrix to be
approximately 19 years - a fact admitted by the prosecution. The petitioners filed the present writ petition
under Article 226 of the Constitution of India seeking issuance of a writ in the nature of certiorari quashing
the impugned F.I.R. and the consequent proceedings.

ISSUES:
(i) Whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution and
inherent powers under Section 482 Cr.P.C., is competent to quash criminal proceedings at the stage of
investigation/trial, and if so, on what parameters.

(ii) Whether the ingredients of Section 363 I.P.C. read with Section 361 I.P.C. and Section 366 I.P.C. are
satisfied on the facts and circumstances of the case, particularly when the prosecutrix herself states that she
was neither kidnapped nor abducted but had voluntarily accompanied and married the petitioner.
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
605
(iii) Whether a girl who has attained the age of discretion (though not yet the age of majority) and who, of
her own volition, abandons the guardianship of her parents and joins/marries a boy without any inducement,
enticement, coercion or active participation on the part of the boy, can be said to have been 'taken or enticed'
within the meaning of Section 361 I.P.C.
(iv) Whether the medical/radiological age (19 years approximately) of the prosecutrix, contradicting the
testimonial age relied upon by the prosecution to allege minority, satisfies the bar of age contemplated under
Section 361 I.P.C.
(v) Whether, in the facts and circumstances, the impugned F.I.R. was lodged mala fide with intent to wreak
vengeance on the petitioners on account of the complainant's personal grudge against the marriage, and
whether continuation of proceedings would amount to abuse of process of the Court.

HELD:
(i) Power of High Court to quash criminal proceedings - Parameters - The High Court, in exercise
of its extraordinary power under Article 226 of the Constitution of India and inherent powers under Section
482 Cr.P.C., may quash criminal proceedings so as to prevent abuse of the process of the court and to secure
the ends of justice. The power, though of wide amplitude, must be exercised with caution, care and
circumspection. The court has to be fully satisfied that the material produced by the accused is of sterling and
impeccable quality; that such material would rule out and disprove the assertions contained in the charges
levelled against the accused; and that the material cannot justifiably be refuted by the prosecution. In such a
situation, the judicial conscience of the High Court should persuade it to exercise the power to quash. The
High Court while considering quashing has the jurisdiction to consider facts as they emerge from evidences,
statements, medical reports, correspondence and other material placed on record, so as to secure substantial
justice.
 Seven illustrative categories of cases where quashing may be warranted - (1) Allegations in
the F.I.R., even if accepted in entirety, do not constitute any offence; (2) Allegations do not disclose a
cognizable offence; (3) Uncontroverted allegations and evidence collected do not disclose commission of any
offence; (4) Allegations do not constitute a cognizable offence; (5) Allegations are so absurd and improbable
that no prudent person can conclude there is sufficient ground to proceed; (6) There is an express legal bar to
continuation of proceedings; (7) Criminal proceedings are manifestly mala fide or initiated to wreak
vengeance with a view to spite the accused due to private and personal grudge.
 Four-step test for quashing - The High Court must determine: (i) whether the material relied upon by
the accused is sound, reasonable and indubitable, i.e., of sterling and impeccable quality; (ii) whether such
material rules out the factual assertions in the charges; (iii) whether the material has not been or cannot
justifiably be refuted by the prosecution/complainant; and (iv) whether proceeding with the trial would result
in abuse of process of the court and not serve the ends of justice. If all four steps are answered in the
affirmative, the proceedings deserve to be quashed.
(ii) Ingredients of Sections 361, 363 and 366 I.P.C. - Voluntary act of the girl - Age of
discretion - Section 361 I.P.C. requires that the accused must have 'taken or enticed' a minor female
(below eighteen years of age) out of the keeping of her lawful guardian without the guardian's consent.
Where a girl, having attained the age of discretion, voluntarily of her own accord and initiative, without any
inducement, enticement, coercion, solicitation or active participation on the part of the accused, abandons her
guardian's protection and joins/marries the accused, the ingredient of 'taking or enticing' is not satisfied and
no offence under Section 363 I.P.C. is made out. The law does not cast any duty upon the accused to take
the girl back to her father's house or to prevent her from accompanying him. Where the girl herself
categorically deposes - including in her statement recorded under Section 164 Cr.P.C. - that she was
neither kidnapped nor abducted but had willingly accompanied and married the accused, the element of
coercion and enticement by the accused is absent and the ingredients of Sections 363 and 366 I.P.C. remain
unsatisfied. Substantial justice cannot be sacrificed at the altar of technical interpretation.
 A girl who has attained the age of discretion and is on the verge of attaining majority, capable of knowing
what is good or bad for her, cannot be said to have been induced, particularly when the case of the girl
606 INDIAN LAW REPORTS ALLAHABAD SERIES

herself is that on her own initiative and by her voluntary act she went with the boy and married him. In such
circumstances, the desire and welfare of the girl are required to be taken into account and the ingredients of
Section 361 I.P.C. are to be considered accordingly, not in a mechanical or technical manner. So as to bring a
case within Section 361 I.P.C. in such circumstances, some kind of inducement held out by the accused or
active participation by him in the formation of the intention of the minor to leave her guardian's protection, is
required to be established.
(iii)
Effect
of
medical/radiological
age
contradicting
testimonial
age
-
Where
the
medical/radiological age of the prosecutrix is found to be approximately 19 years by the investigating agency
itself - a fact not disputed by the prosecution - and such age contradicts the testimonial records relied upon
to allege minority, the prosecution cannot maintain that the prosecutrix was a minor for the purpose of
attracting the provisions of Section 361 I.P.C. The prosecutrix having been found by the medical examination
to have attained majority, the ingredient of minority required under Section 361 I.P.C. is not satisfied, and
therefore the offence under Section 363 I.P.C. is not made out.
(iv) Mala fide initiation of proceedings - Abuse of process - Where it is evident from the facts and
circumstances that the impugned criminal proceedings have been initiated not on account of any bona fide
grievance but solely because the complainant did not accept the marriage of choice of his daughter with the
petitioner, and where continuance of the proceedings would disrupt the matrimonial life of the prosecutrix
(who herself has not been kidnapped), the proceedings are manifestly mala fide and amount to an abuse of
the process of the court and of the law. Such prosecution, if allowed to continue, would abrogate the
constitutional right of the petitioners to marry as per their discretion, particularly when there is no evidence
that the marriage is void. In such circumstances, the writ court, being a court of equity, must take into
consideration all relevant factors to deliver substantial justice and is persuaded to quash the impugned
proceedings. Continuance of trial in such circumstances would be an exercise in futility, as the
victim/prosecutrix herself - who is the most material witness - would not support the prosecution case,
resulting inevitably in acquittal.
 The present case fell within Sub-Para 3 and Sub-Para 7 of Para 108 of Bhajan Lal's case (supra) - the
uncontroverted evidence collected during investigation did not disclose commission of the alleged offences,
and the proceedings were manifestly mala fide, being actuated by personal grudge.

RESULT:
Writ petition allowed. First Information Report dated 28.3.2016 bearing Case Crime No. 60 of 2016 under
Sections 363 and 366 I.P.C., Police Station Mankapur, District Gonda, and all consequent proceedings
thereon, hereby quashed. Copy of the order directed to be forwarded to the Superintendent of Police, Gonda
and the concerned Magistrate.

Cases Referred:
State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604; Rajiv Thapar v. Madan Lal Kapoor, (2013) 3
SCC 330.
S. Varadarajan v. State of Madras, (1965) 1 SCR 243; Shaheen Parveen v. State of U.P., Writ
Petition No. 3519 (M/B) of 2015 (Allahabad High Court, decided 23.7.2015)

(Delivered by Hon'ble Ajai Lamba, J.
&
Hon'ble Dr. Vijay Laxmi, J.)

1. The petition seeks issuance of a writ in the nature of certiori quashing First Information
Report, lodged as crime no. 60 of 2016 under Sections 363, 366 I.P.C., police station Mankapur,
district Gonda.
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
607
2. Order dated 16.5.2016 notices the gist of the issue raised by the petitioners. The order
reads as under :-

"1. This petition seeks issuance of a writ in the nature of certiorari quashing Case
Crime No.60/2016 under Sections 363, 366 I.P.C., P.S. Mankapur, district Gonda (Annexure-1).

2. Learned counsel appearing for the petitioners has argued that petitioner No.2
willingly got married to petitioner No.1. Evidence of marriage has been placed on record as
Annexure-2. The petitioner No.2 has not been kidnapped. Offence has not been committed.
Respondent No.4, however, has not accepted the marriage of the petitioners, therefore, impugned
criminal proceedings have been initiated in abuse of process of the law and process of the Court.

3. Issue notice to respondent No.4, returnable on 21.7.2016.

4. Till the next date of listing, petitioners shall not be taken in custody. Petitioners
are directed to join investigation.

5. The Investigating Officer is directed to ensure that statement of petitioner No.2
is recorded under Section 164 CrPC and counter affidavit is filed.

6. List on 21.7.2016."

3. Short counter affidvit has been filed on behalf of the State in Court, which is taken on
record.

4. Sri Dinesh Kumar Shukla, Advocate has put in appearance for respondent no. 4 and has
filed his Power of Attorney on behalf of the complainant, which is taken on record.

5. Learned counsel for the complainant has opposed the petition on the ground that the
petitioner no. 2 is a minor and therefore offence under Section 363 I.P.C. has been committed. It
has been pleaded that the petition is liable to be dismissed.

6. An affidavit has been filed on behalf of the investigating agency/prosecution bringing on
record the facts unearthed in the course of investigation viz. Statement of the prosecutrix under
Section 164 CrPC (Annexure SCA-1), and medical report of the prosecutrix (Annexure SCA-2).
The case of the prosecution as pleaded is that offence has been committed because the prosectrux
was a minor on the date of the incident, as per her testimonials. It is, however, the admitted case of
the prosecution that medical age of the prosecturix is nineteen years (approx.)

7. Learned counsel for the petitioners, however, contends that considering the radiological
age (19 years) of the victim of offence/petitioner no. 2, it appears that petitioner 2 has attained the
age of majority. The petitioner no. 2 in her statement recorded under Section 164 Cr.P.C. has made
it evident that she has not been kidnapped. Under the circumstances, the case of the petitioners is
608 INDIAN LAW REPORTS ALLAHABAD SERIES

covered by judgment dated 23.7.2015, rendered by a Division Bench of this Court, of which one of
us (Ajai Lamba, J) was a member in Writ Petition No.3519(M/B) of 2015 Shaheen Parveen and
another versus State of U.P. and others.

8. Before adverting to the facts and circumstances of the case to consider whether the
impugned proceedings are liable to be quashed or not, we would like to refer to the law laid down
by the Hon'ble Supreme Court of India. Hon'ble Supreme Court of India in State of Haryana and
others versus Ch. Bhajan Lal and others AIR 1992 SC 604 has laid down certain conditions that
may be considered by the Court for quashing criminal proceedings. The following has been held in
Para 108 :

"108. In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and reproduced above, we give the
following categories of cases by way of illustration wherein such power could be exercised either
to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases
wherein such powers should be exercised.

1. Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if
any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
609
6. Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with malafide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge."

(Emphasised by us)

9. We would like to refer to another judgment rendered by Hon'ble Supreme Court of India
on the issue of quashing of criminal proceedings viz. Rajiv Thapar and others versus Madan Lal
Kapoor (2013)3 SCC 330. Shorn of the unnecessary details, the following are the facts and
circumstances considered by the Hon'ble Court while allowing the appeal and setting aside the
criminal proceedings pending against the accused at the stage of framing of charge :-

(a) One Dr. Monica Thapar married to Rajiv Thapar fell ill and was admitted in a
hospital. Dr. Monica Thapar was diagnosed with a hole in her heart. She suffered a massive heart
attack which proved fatal. Madan Lal Kapoor (deceased's father) filed a complaint and insisted that
the deceased had been poisoned. Based on the complaint, a medical board was constituted which
opined that the death of Dr. Monica Thapar was due to cardiac de-compensation. Madan Lal
Kapoor, however, persisted with the allegation that Mrs. Monica had died under mysterious
circumstances, within one year of her marriage and had been mentally and physically tortured on
account of demand for dowry which had led to her illness and in that condition, she had been
administered some poisonous substance. On the other hand, the post mortem report and forensic
laboratory report indicated the death to be on account of natural causes/natural death.

(b) Madan Lal Kapoor filed a number of complaints on the basis of suspicion.
Since the complaints did not fetch any fruitful result, he filed a criminal complaint before
Metropolitan Magistrate, Delhi with the allegation of unnatural death of Dr. Monica Thapar by
poisoning. It appears that the complainant himself was uncertain about the manner in which his
daughter had died, i.e. by poisoning or by strangulation.

(c) Based on the statements given in prosecution of the criminal complaint by
Madan Lal Kapoor, the complainant and his son Ravi Kapoor, the Metropolitan Magistrate, Delhi
summoned the accused. The Metropolitan Magistrate, based on the evidence, formulated an
opinion that there was sufficient material to proceed against the accused under Sections 498-A,
406, 304-B read with Section 120-B I.P.C. The case was committed to the Court of Sessions.

(d) Finally, after the order of summoning had been challenged in the High Court
and a bout of litigation, the matter was considered by the Court of Sessions. The Addl. Sessions
Judge found that provisions of Section 202 CrPC had not been fully complied with and some
610 INDIAN LAW REPORTS ALLAHABAD SERIES

evidences had not been brought on record, in so much as the post mortem report, inquest report and
some correspondence were not available for consideration of the Court. The Addl. Sessions Judge
summoned the Doctors who were members of the Medical Board that had conducted post mortem
examination and sought clarification in regard to allegations of strangulation. The Addl. Sessions
Judge, Delhi heard arguments on charge and on evaluation of the complaint and various evidences
concluded that no prima facie case was made out against the accused, either under Section 304-B
I.P.C. or under Section 498-A I.P.C. Accordingly, the accused were discharged.

(e) Dissatisfied with the order of discharge, Madan Lal Kapoor filed criminal
revision petition before the High Court. The High Court of Judicature at Delhi set aside the order of
discharge passed by the Addl. Sessions Judge dated 8.5.2008. Order dated 8.5.2008 was challenged
before the Hon'ble Supreme Court of India by the accused.

10. The above noted skeleton of facts were considered by the Hon'ble Supreme Court of
India in their minutest detail in reference to the evidences, documents and statements brought on
record, not only in the Court of Additional Sessions Judge who passed the order of discharge, but
also the Metropolitan Magistrate. Hon'ble Supreme Court of India set aside the order passed by the
High Court of Judicature at Delhi. Criminal proceedings against the accused were accordingly set
aside and the appeal was allowed. The following has been held by the Hon'ble Supreme Court of
India in the relevant portion of the judgment :

"29. The issue being examined in the instant case is the jurisdiction of the High
Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution
against an accused, at the stage of issuing process, or at the stage of committal, or even at the
stage of framing of charges. These are all stages before the commencement of the actual trial. The
same parameters would naturally be available for later stages as well. The power vested in the
High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far
reaching consequences, inasmuch as, it would negate the prosecutions/ complainants case without
allowing the prosecution/complainant to lead evidence. Such a determination must always be
rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section
482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the
accused is such, that would lead to the conclusion, that his/their defence is based on sound,
reasonable, and indubitable facts; the material produced is such, as would rule out and displace
the assertions contained in the charges levelled against the accused; and the material produced
is such, as would clearly reject and overrule the veracity of the allegations contained in the
accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject
and discard the accusations levelled by the prosecution/complainant, without the necessity of
recording any evidence. For this the material relied upon by the defence should not have been
refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable
quality. The material relied upon by the accused should be such, as would persuade a reasonable
person to dismiss and condemn the actual basis of the accusations as false. In such a situation,
the judicial conscience of the High Court would persuade it to exercise its power under Section
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
611
482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process
of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would
delineate the following steps to determine the veracity of a prayer for quashing, raised by an
accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound,
reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the
assertions contained in the charges levelled against the accused, i.e., the material is sufficient to
reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as
would persuade a reasonable person to dismiss and condemn the factual basis of the accusations
as false.

(iii) Step three, whether the material relied upon by the accused, has not been
refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably
refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of
process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High
Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under
Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save
precious court time, which would otherwise be wasted in holding such a trial (as well as,
proceedings arising therefrom) specially when, it is clear that the same would not conclude in the
conviction of the accused."
(Emphasised by us)

X X X X X

38. We are persuaded to conclude from the facts and circumstances of the case
exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph
23 above, can be answered in the affirmative, on the basis of the material relied by the accused,
more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical
Board comprising of four doctors, whose integrity has not been questioned by the respondentcomplainant; the chemical analysis findings contained in the Central Forensic Science
Laboratorys report dated 9.2.1993 which has not been disputed by the respondent-complainant;
the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly
recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the
deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the
612 INDIAN LAW REPORTS ALLAHABAD SERIES

contents and authenticity whereof are not subject matter of challenge at the hands of the
respondent-complainant; and finally, the telephone bills produced by the appellants-accused
substantiating consistent and regular contact between the rival families, which have not been
questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the
High Court ought to have persuaded it, on the basis of the material examined by it, to quash the
criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the
aforesaid proceedings.

39. Despite the conclusion recorded hereinabove, we are of the view, that in the
facts and circumstances of this case, there should have been no difficulty whatsoever for the
High Court to have exercised its judicial conscience for invoking the power vested in it under
Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even
though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993,
adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to
death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to
suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi,
summoned two of the doctors who were members of the Medical Board which had conducted the
post-mortem examination, and sought clarifications from them. He also recorded the statement
of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of
strangulation. When the respondent-complainant himself was uncertain about the manner in
which his daughter had allegedly died, the High Court should have viewed the matter keeping in
mind the likelihood of the hurt caused to a father who had lost his daughter within one year of
her marriage. The matter needed to have been evaluated, on the basis of one of the parameters
laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely,
whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant)
were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view
to spite him due to some private/personal grudge.

40. There is yet another reason emerging from the facts of the case which needed
to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent
before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best
of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record
her statement, even though a number of opportunities were afforded to the respondent-complainant
to produce her. The permissible inference is that he was himself not privy to the facts. The fact that
the mother of the deceased had not appeared to record a statement against the appellants-accused
has to have some reason/justification. Would a mother who believes that her daughter had been
poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her
husband? Probably not. The instant factual position has been recorded hereinabove, not for the
sake of determination of the present controversy. In a factual situation not as clear as the one in
hand, facts such as these, could be taken into consideration by a High Court for recording its
satisfaction, on the parameters formulated above.
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
613
41. For the reasons recorded hereinabove, criminal proceedings against the
appellants-accused are hereby set aside. The order of the High Court is accordingly also set
aside, but on grounds different from those taken into consideration by the High Court. The
instant appeal, accordingly succeeds."

(Emphasised by us)

11. On consideration of the law laid down by the Hon'ble Supreme Court of India in Rajiv
Thapar's case (supra), it becomes clear that to invoke jurisdiction for quashing criminal
proceedings, the High Court has to be fully satisfied that the material produced by the accused is
such, that would lead to the conclusion that his /their defence is based on sound, reasonable and
indisputable material; the material produced is such, as would rule out and disprove the assertions
contained in the charges levelled against the accused; and the material produced is such, as would
clearly reject and overrule the veracity of the allegations contained in the accusations levelled by
the prosecution/complainant, without the necessity of recording any evidence. For this, the material
relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably
refuted, being material of sterling and impeccable quality. The material relied upon by the accused
should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of
the accusations as false. In such a situation, the judicial conscience of the High Court would
persuade it to exercise its power to quash such criminal proceedings, for that would prevent abuse
of process of the Court and secure the ends of justice.

12. Hon'ble Supreme Court of India on the basis of above given parameters delineated
certain steps to determine the veracity of a prayer for quashing, raised by an accused by invoking
the power vested in the High Court to quash criminal proceedings. The steps are contained in the
extracted portion of the judgment herein-above and need not be repeated.

13. Perusal of the judgment also establishes that the High Court while considering
quashing of proceedings has the jurisdiction to consider the facts and circumstances as they
emanate from the evidences, material, the statements, medical reports, correspondence between the
parties etc. The purpose appears to be to secure ends of justice and prevent abuse of process of the
Court. Spirit of the judgment is that High Court should consider whether judicial conscience of the
High Court is persuaded by the material to consider quashing of the criminal proceedings.

14. In Bhajan Lal's case (supra), seven categories of cases have been detailed. In case an
impugned proceeding falls under any of the categories (which though are not exhaustive), the Court
can consider quashing of the impugned criminal proceedings.

15. From the law extracted and discussed above, it follows that the petitioner accused so as
to seek quashing of criminal proceedings can rely on the defence available with him. The material
relied upon by the accused is required to be of sound, reasonable and indisputable quality. The
material should be such as to rule out/ disprove the assertions contained in the charges/ accusations
614 INDIAN LAW REPORTS ALLAHABAD SERIES

levelled against the accused. Further the material should be such which cannot justifiably be refuted
by the prosecution/complainant.

16. It has been held that exercise of such power, besides doing justice to the accused,
would save precious Court time because continuance of trial would not conclude in the conviction
of the accused.

17. The criminal proceedings are rendered liable for quashing also if (a) the allegations,
even if taken at their face value and accepted in entirety, do not prima facie constitute any offence;
(b) where the allegations in impugned proceedings do not disclose a cognizable offence; (c) where
uncontroverted allegations and evidence collected in support of the same do not disclose
commission of an offence; (d) where the allegations made in the impugned proceedings are so
absurd and improbable on the basis of which no prudent person can ever reach a conclusion that
there is sufficient ground for proceeding against the accused; (e) where there is an express legal bar
engrafted in any provision in the Code of Criminal Procedure or in the concerned Act (under which
criminal proceeding has been instituted) to the institution and continuance of the proceedings; and
(f) where a criminal proceeding has been initiated for mala fide reasons with ulterior motive for
wreaking vengeance.

18. The criminal proceedings, in the considered opinion of this Court, also deserve to be
quashed in case on consideration of material made available to the Court establishes that
ingredients of the alleged offence (committed by the accused) are not satisfied. Such material may
have been produced by the petitioner accused or might come through investigation in relevant
aspects of the case.

19. The ingredients of offence under Sections 363, 366 I.P.C., in context of the relevant
evidences, which are somewhat similar to the present case have been considered by this Court in
Shaheen Parveen's case (supra). The following has been held in relevant portion of the judgment :

"7. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person
from lawful guardianship shall be punished in terms of sentence provided in the provision.

8. "Kidnapping from lawful guardianship" has been defined under Section 361 of
the Indian Penal Code. The provision when extracted reads as under:-

"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.

Explanation: - The words "lawful guardian" in this section include any person
lawfully entrusted with the care or custody of such minor or other person.
8 All. Vishal Jaiswal & Anr. Vs State Of U.P. & Ors.
615
Exception: - This section does not extend to the act of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good faith believes himself to be
entitled to the lawful custody of such child, unless such act is committed for an immoral or
unlawful purpose."

9. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts
any woman with intent that she may be compelled, or knowing it to be likely that she will be
compelled to marry any person against her will, or in order that she may be forced or seduced to
illicit intercourse, shall be punished with a sentence, as provided in the provision.

10. At the time of considering whether on admitting the allegations made in the
F.I.R., offence has been committed or not, the ingredients of the offence are required to be
considered, in context of the evidence collected during the course of investigation.

X X X X X

16. If the statement of the prosecutrix, above noted, is taken into account, it
becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in
regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The
provisions of Section 363 of the Indian Penal Code are required to be considered in context of
provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361
of the Indian Penal Code, it has to be established by the prosecuting agency that the
accused/sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the
prosecutrix, without the consent of the guardian/respondent no. 4. In the case in hand, it is the case
of the prosecutrix herself that she of her free will went with Sarfaraj, lived with him, wants to live
with him and is expecting his child. Element of coercion and enticement by Sarfaraj is absent,
although consent of the guardian had not been taken.

17. The writ court, being a court of equity, must take into consideration all
relevant factors brought before it to deliver substantial justice. Equity justifies bending the rules,
where fair play is not violated, with a view to promote substantial justice. A writ court cannot
contemplate any limitation on its power to deliver substantial justice. It has to be ensured that a
consumer of justice gets complete justice, instead of going into the nicety of law. Under the
circumstances, the court cannot be a mere onlooker if injustice is likely to be caused.

18. Petitioner No.1 the victim/prosecutrix would be the best witness, rather the
only witness of commission of offence under Sections 363/366 I.P.C. Surely, the victim will not
support the prosecution case, as has been made evident by her in her statement, recorded in the
course of investigation under Section 164 Cr.P.C., and therefore the trial would result in acquittal.
During course of trial, considerable number of man hours would be wasted in prosecution/
defending and judging the case. No useful purpose would be served and the entire exercise of trial
would be in futility because the victim has declared that she was not victimised or kidnapped.
616 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The facts that have emerged from the record make it evident that the impugned
criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent no.-4) has
not accepted the marriage of her daughter with petitioner No.2.

20.