Kiran Pal & Anr. vs State Of U.P. Thru. Prin. Secy. ...
2019 Latest Caselaw 5468 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9								A.F.R.
 

 
Case :- MISC. BENCH No. - 18516 of 2019
 

 
Petitioner :- Kiran Pal & Anr.
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home & Ors.
 
Counsel for Petitioner :- Krishan Kanhaya Pal,Pooja Pal
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Vikas Kunvar Srivastav,J.

1. By means of writ petition, a challenge has been made to the First Information Report No. 0539 of 2019, registered on 03.06.2019 with Police Station- Kotwali Nagar, District Pratapgarh for the offence under Sections 363, 366 IPC & Section 7/8 POCSO Act.

2. Learned counsel for the petitioner submits that an offence under Section 363 IPC is not made out as ingredients of Section 161 Cr.P.C. are not satisfied. The perusal of the first information report does not show any allegation that petitioner enticed minor below 18 years. In absence of such allegation, the case would not fall under Section 363 IPC. Reference of Section 366 IPC has also been given. It is to demonstrate that even the offence under the said provision is not made out. In view of above, the first information report deserves to be quashed.

3. It is submitted that in the school certificate, the age of the girl has been shown to be 10.07.2003. The said date of birth is not correctly recorded in the high school examination certificate. The female is at the age of more than 18 years and if it is counted by the Aadhar Card then more than 16 years. Petitioner no. 1 is major. The offence under Section 363 IPC is thus not made out. It is also stated that both the petitioners have married with each other. In those circumstances also, first information report deserves to be quashed. A reference of the judgment of the Supreme Court in the case of S. Varadarajan vs. State of Madras [AIR 11965 SC 942] has been given. Further reference of the judgment of this Court in the case of Shaheen Parveen and Anr. vs. The State of U.P. and Ors. [W.P. No. 3519 (MB) of 2015] decided vide order dated 23.07.2015 has been given. Prayer is not only to quash the first information report but to give protection to the petitioner.

4. We have considered the submission made by the petitioner and perused the record.

5. The first information report has been challenged in reference to Section 361 IPC. It is to show that the offence of the nature given therein is not made out from the perusal of first information report. Section 361 IPC is quoted herein below, for ready reference :-

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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."

6. Learned counsel for the petitioner has conveniently read only one word i.e. "entices" and omitted to read word "takes" prior to it. The kidnapping would be made out, whoever takes a female below 18 years of age out of the lawful guardianship of such minor, without the consent of guardian. In the instant case, there is a specific allegation against petitioner no. 1 for taking away petitioner no. 2 from the lawful guardianship, without their consent. The allegations satisfies the requirement of Section 361 IPC and accordingly offence under Section 363 IPC would be made out if the girl is at the age of less then 18 years, as given under the statute.

7. From perusal of the high school certificate produced during course of hearing, the date of birth of petitioner no. 1 is 10.07.2003 and thereby at the time of commission of offence, she was at the age of less than 18 years, rather around 16 years or so. The determination of the age of the minor/juvenile can be made as per Rule 12 of Juvenile Justice Care and Protection of Children Rules and more specific Rule 12 (3) of the Rules. It provides that whenever high school certificate exist, the age would be determined by the date of birth given therein. No other mechanism is permissible in that case. In the instant case, petitioner no. 1 has appeared in high school examination. The certificate, in original has been produced before us. In view of the aforesaid, we cannot accept any other document as urged by learned counsel for the petitioner. What would prevail is the statutory provision and not the theory propounded by the individual. It is not even in the domain of the Court to pass order contrary to the statutory provisions, unless struck down.

8. In view of above, we find that ingredients of Section 361 IPC in reference to the age and allegation of taking away the minor-female are satisfied. Thus, we are not impressed with the first argument raised by counsel for the petitioner.

9. It is stated that petitioners have entered into marriage and it is with the consent of petitioner no. 1. The question for our consideration would be as to whether consent of minor carries any meaning or her welfare has to be seen by the Court and for that we cannot ignore Section 361 IPC for it. If somebody takes away the female at the age of less than 18 years from the guardianship without the consent of guardian then it amounts to kidnapping. There is no arrangement in Section 361 IPC about the consent of the minor rather consent should be of the guardian. Hence, even the second argument in reference to the consent of the girl cannot be accepted, being minor.

10. Learned counsel for the petitioner has supported his argument by referring the judgment of the Supreme Court in the case of S. Varadarajan (supra). He has referred para 7 of the judgment, which is quoted hereunder, for ready reference :-

"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 s. 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 enticing away a minor out of the keeping of a lawful guardian is an 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 L2Sup./64--3 guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan ,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 own 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 of 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 un- sophisticated 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 Sathar(1) 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 S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 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 Abdul Sathar's case(1) 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 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."

11. Perusal of para 7 of the judgment shows that case was decided by the Apex Court on appeal. It was on completion of trial and conviction of the accused therein. The Court has referred statement of the prosecutrix to find out as to whether offence under Section 363 IPC is made out or not. In the instant case, writ petition has been filed challenging the first information report at the initial stage itself. The statement of prosecutrix is yet to be recorded. The judgment of the Apex Court in the case of S. Varadarajan (supra) would not apply for quashing of the first information report but if appeal is preferred after the trial. Accordingly, we are unable to accept the argument of learned counsel of the petitioner in reference to the judgment of the Apex Court in the case referred above.

12. The petitioner has referred a judgment of this Court in the case of Shaheen Parveen (supra). The perusal of the said judgment shows reference of statement of the girl under Section 164 Cr.P.C. and even the age to be of 17 years. On the fact, the said judgment does not apply because in the instant case, age of the girl is less than 17 years and otherwise her statement under Section 164 Cr.P.C. has not been recorded. At this stage, it is essential to clarify that the first information report cannot be quashed by appreciation of facts but on the ground set out by the Apex Court in the case of State of Haryana vs. Ch. Bhajan Lal and Anr. reported in AIR 1992 SC 604. Relevant paragraphs of the said judgment are quoted hereunder:-

"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.

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."

13. The grounds set out by the Apex Court referred to above have been reiterated time and again in the subsequent judgments also. The case in hand does not fall in any of the categories set out by the Apex Court for quashing of the first information report.

14. In the light of the judgment aforesaid, we cannot casually cause interference in the first information report, which can be in rarest of rare case. It is also to be noted that what would be the age of the maturity of a girl to take a decision cannot be determined by us going contrary to the statutory provisions. When the statute provides age of 18 years then it cannot be ignored without holding it to be unconstitutional. Section 361 IPC mandates consent of the guardian, if the female is of less than 18 years. We cannot substitute the statutory provision in respect of age or other respect. It does not lie in the domain of the Courts. The High Court is not having authority to re-write the statutory provisions or to go against the statute in view of the judgment of the Apex Court in the case of Eera through Dr. Manjula Kripendorf vs. State (NCT of Delhi) and Another [(2017) 15 SCC 133]. Para 105-106 and 139 of the said judgment are quoted hereunder:-

"...... it is no part of this Court's function to add to or amend the law as it stands. This Court's function is limited to interpreting the law as it stands, and as such the Court cannot go against plain literal meaning of the statute.      (Para 104)
 
This argument raises the constitutional spectre of separation of powers. Under the constitutional scheme, Judges only declare the law; it is for the legislatures to make the law.		 (Para 105)
 
139. A reading of the Act as a whole in the light of the Statement of Objects and Reasons thus makes it clear that the intention of the legislator was to focus on children, as commonly understood i.e. persons who are physically under the age of 18 years. The golden rule in determining whether the judiciary has crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has only ironed out the creases that he found in a statute in the light of its object, or whether he has altered the material of which the Act is woven. In short, the difference is the well-known philosophical difference between "is" and "ought". Does the Judge put himself in the place of the legislator and ask himself whether the legislator intended a certain result, or does he state that this must have been the intent of the legislator and infuse what he thinks should have been done had he been the legislator. If the latter, it is clear that the Judge then would add something more than what there is in the statute by way of a supposed intention of the legislator and would go beyond creative interpretation of legislation to legislating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law ought to be instead of what the law is." 		            (Para 139)
 
15.	The Supreme Court in the case of Anurag Kumar Singh and Ors. vs. State of Uttrakhand and Ors. with Sharwan Kumar Tripathi and Others vs. State of  Uttarakhand and Ors. [(2016) 9 SCC 426] has held in para 16 of the judgment, which is quoted hereinbelow for ready reference:-
 
16. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows: 
 

"Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several."

16. In the light of the facts given above and taking into consideration the limited jurisdiction of this Court, we cannot cause interference in the first information report in this case. No case is made out for the aforesaid and accordingly writ petition is dismissed.

Order Date :- 8.7.2019

Nitesh