The present petition under Section 482 Cr.P.C. has been filed for quashing of the proceedings in Case No.1773 of 2006, arising out of Case Crime No.134 of 2006, under Sections 363, 366 IPC, Police Station Mahrajganj Tarai, District Balrampur as well as the charge sheet no.32 of 2006, dated 13.8.2006 submitted by the Investigation Officer.
The petitioners are present before this Court. Petitioner no.2, who is the prosecutrix, has specifically stated that she is living happily with petitioner no.1, who is her husband and they had performed their marriage and out of the wedlock, one child, Shivam was born, who is now aged about 11 years.
Learned counsel for the petitioners submits that no offence as alleged is made out.
In support of his submission, he has placed reliance upon a judgment of the Supreme Court in the case of S. Varadarajan V.s State of Madras, AIR 1965 SC 942. Paragrphs 7 and 9 of the aforesaid judgment, which are relevant, are extracted herein below:-
"7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that ?taking? of Savitri out of the keeping of her father has not been established. The offence of ?kidnapping from lawful guardianship? is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
?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.?
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. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law ?taking?. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. 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. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. 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. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. 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. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Re Abdul Satar [54 MLJ 456] in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of Section 363 and expressing agreement with this statement of the law observed: ?In this case the minor, PW 4, would not have left the house but for the promise of the appellant that he would marry her?. Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Re Abdul Sathar case [54 MLJ 456] Srinivasa Aiyangar, J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed:
?If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or not brought about by something that the accused did.?
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."
Considering the fact that there is no allegation of rape and the prosecutrix did not support the prosecution case, the continuation of the proceedings before the trial court would be an exercise of futility and, therefore, interest of justice would be met if the proceedings are quashed.
Petition is accordingly allowed and the proceedings in Case No.1773 of 2006, arising out of Case Crime No.134 of 2006, under Sections 363, 366 IPC, Police Station Maharajganj Tarai, District Balrampur as well as the charge sheet no.32 of 2006, dated 13.8.2006 submitted by the Investigation Officer, are hereby quashed.
Order Date :- 18.12.2019 Rao/-