Hon'ble Rajeev Singh,J.
(ORAL)
1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report No.149 of 2018, under Sections 363 and 366 Indian Penal Code, Police Station Rupaidiha, District Bahraich.
2. We have heard learned counsel for the petitioners, learned counsel for the complainant respondent no.4 and Shri S.P. Singh, learned counsel for the State.
We have carefully gone through the contents of the impugned first information report.
3. Order dated 16.08.2018 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 First Information No. 149 of 2018 under sections 363, 366 Indian Penal Code, Police Station Rupaidiha, District Bahraich.
2. Learned counsel appearing for the petitioners contends that petitioner No.1 willingly got married to petitioner No.2. Petitioner No.1 has not been kidnapped. Offence in her context has not been committed. Evidence of marriage has been placed on record as Annexure No.3. The marriage, however, has not been accepted by respondent No.4, therefore, in abuse of process of the law and process of the Court, impugned criminal proceedings have been initiated.
3. It has been pleaded that ingredients of Sections 363 and 366 Indian Penal Code read with sections 361, 362 Indian Penal Code are not satisfied.
4. We have also taken into account the fact that petition has been filed, also on behalf of the alleged victim of offence which would prima facie demonstrate that offence of kidnapping/abduction has not been committed.
5. Learned counsel appearing for the petitioners has argued that the case of the petitioners is squarely covered by judgment dated 23.7.2015, rendered by a Division Bench of this Court in Writ Petition No.3519(M/B) of 2015 Shaheen Parveen and another versus State of U.P. and others.
6. Issue notice to serve respondent No.4, returnable on 09.10.2018.
7. Till the next date of listing, petitioners shall not be taken in custody. Petitioners are directed to join investigation.
8. Investigating Officer of the case is directed to ensure that statement of petitioner No.1 is recorded under Section 164 Cr.P.C. and she is medically examined.
9. Let counter affidavit be filed.
10. List on 09.10.2018."
4. Short counter affidavit has been filed on behalf of the investigating agency in Court which is taken on record.
We have taken notice of the fact that the short counter affidavit is accompanied by the evidences collected in the course of investigation on the basis of which it is being concluded that the offence has been committed.
5. Contention of learned counsel for the petitioners is that petitioner no.1 willingly left her house; went to join the company of petitioner no.2; got married to petitioner no.2; lived with him as his wife. In such circumstances, the factor of age becomes irrelevant. Surely, offence of kidnapping and abduction has not been committed.
It has been pointed out that in any case medical age of the prosecutix has been found to be about 17 years. The prosecutrix has attained age of discretion. Margin of two years on the higher side to the bone age is required to be given in terms of the law.
6. Learned counsel for the respondent - State and learned counsel for the complainant Shri Sanjay Singh Chauhan have contended that bone age of the victim has been found to be 17 years at the time of the incident. As per testimonials, age of the prosecutrix would be about 16 years. In such circumstances, it is evident that the offence has been committed. On the date of the incident the kidnapee was a minor, hence Section 363 Indian Penal Code is attracted.
7. In peculiar facts and circumstances of the case, we have considered the evidences in context of the ingredients of the penal provisions invoked against the petitioners.
8. Section 363 Indian Penal Code is to be read in conjunction with Section 359 Indian Penal Code and Section 361 Indian Penal Code. The provisions read as under :-
"359. Kidnapping.?Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
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.
Explanation.?The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
363. Punishment for kidnapping.?Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. So as to consider whether offence under Section 363 Indian Penal Code has been committed, in terms of the penal provisions, commission of offence would be complete in case it is shown by the prosecution on the basis of evidences that the victim is taken or enticed away out of the keeping of the lawful guardian of the minor.
10. Statement of the victim of offence recorded under Section 164 Cr.P.C. is available on record as Annexure - 2 with the short counter affidavit. It is the case of the victim that she of her own went out of her house to join the company of Rajesh, who had been summoned by her on telephone. Thereafter, they both went to Nanpara. They spent the night there. Thereafter, they took a room in Nasirganj. Thereafter, they went to Lucknow. After about two months, they contracted marriage and started living in Nasirganj.
It has been specifically stated by the victim that she had fled from her paternal house because she was in constant touch with Rajesh; and her father did not accept the alliance.
11. Considering the statement of the victim of offence it becomes evident that she had not been taken out of the keeping of her lawful guardian. Rather, she of her own volition went out of the keeping of her lawful guardian without coercion or inducement. In such circumstances, offence under Section 363 Indian Penal Code cannot be said to have been committed.
Further, even as per the case of the prosecution, there is no evidence of the accused 'enticing' the victim to leave the house of her guardian. It is not the case of the prosecution that the accused coerced the victim to leave her parental home to go with the accused.
12. In the above circumstances, the facts and circumstances of this case would be covered by judgment of the Hon'ble Supreme Court of India in AIR 1965 SC 942, S. Varadarajan vs. State of Madras. The following (relevant portions from paras 6,7,9,16,19,20) has been held by Hon?ble Supreme Court of Indian in S. Varadarajan?s case (supra):-
?6. It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st. The other facts which have already been stated are also not disputed. A two-fold contention was, however, raised and that in the first place Savitri had abandoned the guardianship of her father and in the second place that the appellant in doing what he did, did not in fact take away Savitri out of the keeping of her lawful guardian.
7. ??It will thus be seen that taking or enticiting away a minor put of the keeping of a lawful guardian is am essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to ?taking? out of the keeping of the lawful guardian of Savitri.
??.In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord.
?? There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit.
???She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her.
??.. In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself: it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him.
9. It must, however, be borne in mind that there is a distinction between ?taking? and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
16. The other case is Rex v. James Jarvis [XX Cox's Criminal Cases, 249] . There Jelf, J., has stated the law thus to the Jury:
?Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do ? namely, tell her to return home ? that fact is not by ? itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him ? or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.?
In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of ?not guilty?. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind.
19. As against this Mr Ranganadham Chetty appearing for the State has relied upon the decisions in Bisweswar Misra v. King [ILR 1949 Cuttack 194] and In re Khalandar Saheb [ILR 1955 Andhra, 290] . The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to ?taking? within the meaning of Section 361.
20. We are satisfied, upon the material on record, that no offence under S. 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.
Appeal allowed.?
(emphasised by us) The Hon'ble Supreme Court of India in S. Varadarajan (supra) was dealing with the case of a victim who undoubtedly was a minor.
13. We have no doubt in holding that Section 363 Indian Penal Code could not have been invoked, considering the statement of the victim herself. There is not an iota of evidence available on record to even suggest that the victim/petitioner no.1 had been taken or enticed out of the keeping of her lawful guardian. Rather, it is the case of the kidnapee/petitioner no.1 in her statement recorded under Section 164 Cr.P.C., that she of her own volition went out of the keeping of her guardian.
14. So far as the factor of age is concerned, Section 363 Indian Penal Code read with Section 361 Indian Penal Code inhere that an offence under the said penal provisions would be complete if a minor is taken or enticed out of the keeping of the lawful guardian of such minor.
In case even a minor voluntarily walks out of the keeping of her lawful guardian, without coercion or enticement/inducement, surely the ingredients of Section 361 Indian Penal Code cannot be said to be satisfied. In such circumstances, mere fact that the victim is a minor would not be the determining factor to conclude that the offence has been committed. Both the ingredients have to be seen collectively.
Be that as it may, we have also taken into account the factor of age of the victim on the date of the incident as per the discussion herebelow.
15. So far as age of the victim of offence is concerned, it is about 17 years, to which two years can be added, in facts and circumstances of the case. In this regard we are supported by the judgments rendered by Hon'ble Supreme Court of India in (2009) 6 Supreme Court Cases 681, Ram Suresh Singh Vs. Prabhat Singh Alias Chhotu Singh and Another, (1982) 2 Supreme Court Cases 538, Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir and Others, (2011) 10 Supreme Court Cases 192, Mohd. Imran Khan Vs. State Government (NCT of Delhi), (2008) 15 Supreme Court Cases 223, Jyoti Prakash Rai Alias Jyoti Prakash Vs. State of Bihar.
There is a discrepancy in the date of birth of the victim insomuch as, as per the Aadhaar Card, her date of birth has been shown as 10.04.1998. As per her testimonial, the date of birth has been shown as 01.07.2002. Bone age of the victim on the date of incident has been found to be 17 years.
Surely, the victim had attained age of discretion and knew what is good for her, and what is not.
Technical view of the matter is not required to be taken. Substance is required to be considered as to whether the victim had been kidnapped or not.
Here in this case, the victim herself has approached this Court to plead that she had neither been kidnapped nor abducted. It has been pleaded by the victim as petitioner no.1 that she got married to petitioner no.2 as is evident from evidence of marriage Annexure - 3 which is a certificate issued by Arya Samaj Mandir. It is not the case of the prosecution that the certificate is forged; or that petitioner no.1 is not married to petitioner no.2. In such circumstances, to rule that she had been kidnapped or abducted would not serve purpose of substantial justice. The evidence available on record itself demonstrates that offence under Section 363 Indian Penal Code has not been committed.
In view of the circumstances, we have no hesitation in holding that ingredients of Section 363 Indian Penal Code are not satisfied.
16. So far as offence under Section 366 Indian Penal Code is concerned, Section 366 Indian Penal Code is required to be read in conjunction with Section 362 Indian Penal Code.
The provisions read as under :-
?362. Abduction.?Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.?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, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
17. The relevant evidence to consider whether offence under Section 366 Indian Penal Code has been committed or not, is the statement of the victim recorded under Section 164 Cr.P.C., to which reference in extenso has been made hereinabove. The statement demonstrates that she had not been abducted or kidnapped for the purposes of marriage.
For this purpose we also take into account the fact that the victim/kidnapee/abductee has herself approached this Court as petitioner no.1 to plead that the impugned first information report be quashed. It is the plea of the victim that she had neither been kidnapped nor abducted by the accused, who is co-petitioner.
In view of the circumstances emanating from the evidences noted above, we have no hesitation in holding that ingredients of Section 366 Indian Penal Code are also not satisfied.
18. From the above it is evident, rather stands demonstrated that impugned criminal proceedings have been initiated because respondent no.4 did not accept the marriage of choice of his daughter petitioner no.1. Evidently, impugned criminal proceedings have been initiated in abuse of process of the law and process of the Court.
19. In view of the above, the petition is allowed.
20. First Information Report No.149 of 2018, under Sections 363 and 366 Indian Penal Code, Police Station Rupaidiha, District Bahraich, and all consequent proceedings are hereby quashed.
21. Let a copy of this order be forwarded to Chief Judicial Magistrate, Bahraich and Station House Officer, Police Station Rupaidiha, District Bahraich.
Order Date :- 30.1.2019 Nishant/-