IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF MARCH, 2019 BEFORE THE HON’BLE Mr. JUSTICE JOHN MICHAEL CUNHA Crl.P. No. 2510/2013 BETWEEN :
1. Sri. K. Narayanamurthy S/o. late Kannaiah Setty Aged 65 years R/a. Door No. 210/10 Sollapuriyamman Koyal Street Thatapalyam Village Tamil Nadu – 600 001.
2. Sri. Nagaraj S/o. late Kannaiah Setty Aged 44 years R/a. Door No. 314 2nd Mettur Street Thatapalyam Village Tamil Nadu – 600 001 At present R/a.
Door No. 210/10 Sollapuriyamman Koyal Street Thatapalyam Village Tamil Nadu – 600 001. … PETITIONERS (By Sri. A.S. Kulkarni, Adv.) AND :
1. The State of Karnataka by Mulbagal Police Station District Kolar – 563 101.
2. Smt. Shashikala W/o. R. Gopi Age 49 years R/a. Manjunath Colony Opp. Vardaraj Theatre Mulbagal town Kolar Dist. – 563 101. … RESPONDENTS (By Sri. Nasrulla Khan, HCGP, for R-1 Sri. C.S. Prem Kumar, Adv., for R-2) ---
This Crl.P. is filed under Section 482 Cr.P.C. with a prayer to quash the FIR against the petitioners/accused Nos. 1 and 2 in the Mulbagal P.S., Kolar Dist., Crime No. 101/2013 for the alleged offence punishable under Section 120B, 363, 365 read with 149 of IPC on the file of Addl. Civil Judge (Jr.Dn.) and CJM Court, Mulbagal, Kolar Dist. and etc.
This Crl.P. coming on for Admission this day, the Court passed the following;
O R D E R Heard learned counsel for petitioners, learned counsel for respondent No. 2 and the learned Government Pleader appearing for respondent No. 1.
2. The accusations against the petitioners are as follows:
Petitioner No. 2 – Sri. Nagaraj had married one Shrilekha in the year 2001. Through her he had a daughter by name Madhumitha. The wife of petitioner No.
2 had deserted petitioner No. 2 and started residing at Mulbagal. She died in an accident on 31.03.2012. The child continued to be in the custody of her grandmother namely, respondent No. 2. On the guise of settling the compensation due and payable to the legal representatives of the deceased Shrilekha, the petitioners herein are alleged to have come to the house of respondent No. 2 on 14.03.2013 and abducted the minor child of the deceased Shrilekha. Respondent No. 2 lodged a complaint before respondent No. 1 – Police. FIR was registered against three accused persons including the petitioners. On completing the investigation, charge sheet is filed against the accused persons for the offences punishable under Section 363, 120-B read with Section 34 IPC.
3. Learned counsel for the petitioners by placing reliance on the decision of this Court in the case of Captain Vipin Menon Vs. State of Karnataka, reported in ILR 1992 Kar. 2662 which is confirmed by the Hon’ble Supreme Court in the case of Chandrakala Menon (Mrs.) and another Vs. Vipin Menon (Capt.) and another, reported in (1993) 2 SCC 6 would contend that petitioner No. 2 being the natural guardian of the minor child Madhumitha could not be charged with the said offence and hence, the initiation of the proceedings against the petitioners are legally untenable and liable to be quashed.
4. Learned counsel appearing for respondent No. 2 and the learned High Court Government Pleader have argued in support of the impugned action contending that the intention of the petitioners right from the inception was to abduct the child. On the pretext of discussing the compensation issue, both the petitioners herein abducted the child. In the course of investigation reliable material is collected by the investigating agency to prove the intention of the petitioners and therefore there is no ground to quash the proceedings at this stage.
5. Considered the submissions of the learned counsel for the parties and perused the records.
Section 363 of IPC reads as under:
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 for fine.
What is kidnapping is defined in Section 359 IPC and the section is extracted here below:
359. Kidnapping.- Kidnapping is of two kinds: kidnapping from [India] and kidnapping from lawful guardianship.
6. In the instant case, undisputedly the child was in the care and custody of her grandmother, namely, respondent No. 2. She was not the lawful guardian of the minor child. Under such circumstances, the question of petitioners herein removing the said child from the lawful guardianship of respondent No. 2 does not arise at all.
Therefore, on the face of it, the provisions of Section 363 IPC do not get attracted to the facts of this case.
7. The Hon’ble Supreme Court has reiterated the above legal position in the decision referred to supra. In the aforesaid case in identical set of facts, the minor child was alleged to have been abducted from the custody of the grandmother. The Hon’ble Supreme Court by considering the provisions of Section 363 IPC has held that the father being the natural guardian could not be charged with the offence of kidnapping. Since the grandmother, namely, respondent No. 2 was not the lawful guardian of the minor child, said principle squarely applies to the facts of this case. Consequently, the prosecution of the petitioners for the above offences cannot be sustained.
8. Accordingly, petition is allowed. Proceedings pending in C.C. No. 508/2013 arising out of crime No.
101/2013 on the file of Additional Civil Judge (Junior Division) and Chief Judicial Magistrate, Mulbagal, Kolar District, for the offences punishable under Sections 363, 120-B read with Section 34 IPC are hereby quashed.
Sd/- JUDGE.
LRS.