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'It Is Inconceivable How...

... the expression of love by a young married couple ... would attract the offence of "obscenity" and trigger the coercive process of the law,' wondered the Delhi High Court in

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'It Is Inconceivable How...
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Crl.M.A.No.1073 of 2009
Exemption allowed subject to all just exceptions.
The application is disposed of.
CRL.M.C. 283 of 2009 and CRL.M.A. No. 1072 of 2009 (stay)

1. The facts brought to the notice of this Court by way of the present petition which seeks the quashing of proceedings arising out of FIR No. 581 of 2009 under Section 294/34 IPC are rather troubling. The Petitioners are a young couple, aged 28 and 23 years, who solemnized their marriage on 4th September 2008 at the Arya Samaj Mandir, Jamuna Bazar, Delhi apparently without the knowledge of their respective parents. They sought the services of a lawyer to get their marriage registered under the Hindu Marriage Act, 1955.

The lawyer asked them to come to the Dwarka Court Complex on 18th September 2008 apparently to get some paper work done in regard to the registration of their marriage. While they were waiting under the Metro Station near the court complex at around 3 pm in the afternoon, an Assistant Sub-Inspector ("ASI") of Police Vidyadhar Singh (No. D/3563 PIS No. 16960047) attached to the Police Station Dwarka along with a constable Roshan Lal (No. 1314/SW) accosted them and allegedly told them that he knew what they were up to. According to the FIR which was registered at the instance of the Vidhyadhar Singh, he found the two Petitioners "sitting in an objectionable position near Metro Pillar No.1140 and were kissing each other. As a result of which the passersby were feeling bad."  (This is the English translation of the FIR which was registered in Hindi which corresponds to these words). 

2. The FIR records that on enquiry the ASI found that Petitioner No.2 is the wife of Petitioner No.1 residing at the same address. Learned counsel for the Petitioners clarifies that in the complaint made to the Bar Council of India and to the Commissioner of Police although the addresses of the  parties are shown as being in Greater Kailash, which is the permanent address of Petitioner No.1, this has been done for the sake of convenience. Since this was a love marriage without the knowledge of their respective parents, the address of Petitioner No.2 continues to be shown as being in Gurgaon.

3. What is striking is that despite the SI finding on enquiry that the two Petitioners were husband and wife living in the same place, he thought it fit to go ahead and register an FIR for an offence under Sections 294 read with 34 IPC. Although the FIR refers to "passers by" being annoyed not a single name of any "passer by" is found mentioned. Learned counsel for the Petitioners adds that the so-called investigation of the FIR has resulted in a charge sheet being filed on 30th January 2009 which does not refer to a single statement of any passer by recorded under Section 161 CrPC. To say the least, the FIR even when taken on its face value, does not make out a case for the offence under Section 294 read with 34 IPC.  It is inconceivable how, even if one were to take what is stated in the FIR to be true, the expression of love by a young married couple, in the manner indicated in the FIR, would attract the offence of "obscenity" and trigger the coercive process of the law.

4. Notice. 

5. Mr. Behl, learned APP for the State accepts notice. 

6. The trial court record be produced before the next date of hearing. 

7. Mr. Behl further states that he will also take specific instructions on the action taken on the complaint made on 27th October 2008 by the Petitioners to the Commissioner of Police which appears to have been received in the Office of the Commissioner of Police on that day itself by Ms. Shalini Singh, DCP, S/W. 

8. There will be a stay of further proceedings arising out of FIR No. 581 of 2008 till further orders. 

9. List on 25th February 2009.

10. Order dasti. S. MURALIDHAR, J FEBRUARY 02, 2009


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