Rohit Kaushal & Anr. vs State & Ors.
2010 Latest Caselaw 738 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(CRL) 891/2009
%                        Date of Order: 9th February, 2010.
#     ROHIT KAUSHAL & ANR.                 ..... Petitioners
!                  Through: Mr. Ashok Arora, Adv.
              versus
$     STATE & ORS.                                  ..... Respondent
^                        Through: Mr. Pawan Sharma, Standing
                         Counsel for State.
                         Mr. C.S.S. Tomar, Adv. for R-5&6
*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.     Whether the Reporters of local papers
             may be allowed to see the judgment?         NO
      2.     To be referred to the Reporter or not?      NO
      3.     Whether the judgment should be              NO
             reported in the Digest?

: V.K. JAIN, J. (ORAL)

1. Petitioner No.2, who is present in the Court, has talked to

her parents, petitioner No.4 Shri Jakir Hussain and petitioner No.5

Smt. Tuhina. Thereafter, statement of petitioner No.2 has been

recorded. According to petitioner No.2, she left the house of her

parents of her own, without any pressure, inducement or coercion

from petitioner No.1. According to her, she went to a number of

places with petitioner No.1 without any threat, coercion or

inducement from him. She claims to have married petitioner

No.1 on 8th July, 2009 and according to her, saptpadi was also

performed at the time of her marriage.

2. The FIR was registered under Section 363 of IPC on a

complaint made by the father of petitioner No.2. In order to

constitute offence punishable under Section 363 of IPC, there has

to be taking or enticing of a minor from the lawful guardianship of

her parents/guardian. If the minor, of her own, abandons the

guardianship of her parents and joins a boy, without any role

having been played by the boy in her abandoning the

guardianship of her parents and without her having been

subjected to any kind of pressure, inducement, etc. and without

any offer or promise from the accused, no offence punishable

under Section 363 of IPC will be made out when the girl is aged

more than 16 years and is mature enough to understand what

she is doing. Of course, if the accused lays a foundation by

inducement, allurement etc. and that influences the minor or

weighs with her in leaving her guardian's custody and keeping

and going with the accused then it is difficult to accept that the

minor had voluntarily come to the accused.

3. In "Shyam & Another Vs. State of Maharashtra", 1995

Criminal Law General 3974, the prosecutrix was a grown-up girl,

though she had not touched 18 years of age. She claimed during

trial that she was kidnapped under threat. The evidence

produced during trial showed that she was seen going on the

bicycle of the accused. The Hon'ble Supreme Court noted that it

was not unknown to her with whom she was going and therefore,

it was expected of her then to jump down from the bicycle or put

up the struggle and in any case raise an alarm to protect herself.

As no such steps were taken by her, the Hon'ble Supreme Court

felt that she was a willing party to go with the appellants of her

own and, therefore, there was no taking out of the guardianship.

The appellants were acquitted of the charge under Section 366 of

IPC.

4. In "State of Karnataka vs. Sureshbabu", 1994

Crl.L.J.1216(1), it was found that the girl went with the accused

voluntarily. It was held by the Hon'ble Supreme Court that the

requirement of Section 366 of IPC is that taking or enticing away

a minor out of the keeping of the lawful guardianship was an

essential ingredient of the offence of kidnapping. It was held that

in such a case, it is difficult to held that the accused had taken

her away from the keeping of her lawful guardian and something

more has to be shown in a case of this nature, like inducement.

5. In "Mahabir vs. State" , 55(1994)DLT 428, the appellant and

the prosecutrix were known to each other. The appellant took the

prosecutrix to a place outside Delhi where they stayed for about

fifteen days and had sexual intercourse with each other. The

appellant was convicted under Sections 366 and 376 of I.P.C. A

learned Single Judge of this Court noticed that she had gone to

Railway Station, had stood there with the appellant who also went

to purchase tickets and then she had travelled with him in a

compartment shared by other persons. She had then gone to a

house in a tonga and yet she did not lodge any protest and made

no attempt to flee despite having ample time and opportunity.

The learned Single Judge noted that on the day of reckoning, she

surely had crossed mark of sixteen years and since she was all

along a willing party, the appellant was acquitted of both the

charges against him. Thus, despite the prosecutrix being less

than eighteen years of age, the appellant was acquitted not only

of charge under Section 376 but also of the charge under Section

366 of I.P.C.

6. In "Piara Singh vs. State of Punjab", 1998(3) Crimes 570, the

High Court found that the prosecutrix was more than sixteen

years of age at the time of this incident, though, the case of the

prosecution was that she was forteen years of old at that time.

Since the High Court came into conclusion that no force was used

in having sexual intercourse with him, the appellant was

acquitted not only of charge under Section 376 but also of charge

under Section 366 and 366-A of Indian Penal Code. In this case

also, the prosecutrix was not found to be more than eighteen

years of age.

7. In "Bala Saheb vs. State of Maharashtra", 1994 Criminal Law

General 3044, it was found that the prosecutrix accompanied the

appellant/accused from her village and stayed with him for two to

three days. It was held that these circumstances clearly show

that offence under Section 363 or 366 of I.P.C. was not made out.

8. The case of the petitioner before this Court stands on a

much stronger footing as the girl, who is present in the Court

herself is saying that no promise or inducement was extended to

her by the boy and she of her own had abandoned the

guardianship of her parents and had joined him, in order to marry

him.

9. No offence punishable under Section 363 of IPC is made out

against petitioner No. 1 merely on account of his having

accompanied petitioner No.2 or having married her with her

consent.

10. It has been submitted by the learned counsel for the parents

of the petitioner No. 2 that the alleged marriage of petitioner No.2

with petitioner No. 1 was in contravention of Section 5(iii) of

Hindu Marriage Act since she had not completed 18 years of age

at the time of her marriage and the petitioner No.1 had not

completed 21 years of age at that time.

11. The offence punishable under Section 18 of Hindu Marriage

Act is non-cognizable offence since the maximum punishment

prescribed for the offence is two years. The police, therefore,

could not have registered an FIR in respect of the offence alleged

to have been committed under Section 18 of Hindu Marriage Act

without obtaining permission from the Magistrate under Section

155 (ii) of the Code of Criminal Procedure. In any case, the State

is not seeking to invoke Section 18 of Hindu Marriage Act against

either of the petitioners.

12. In these circumstances, the FIR No. 116/2009 registered at

Police Station Geeta Colony under Section 363 of IPC and the

proceedings arising therefrom are hereby quashed. It shall,

however, open to the Investigating Agency, if it is of the view that

offence under Section 18 of Hindu Marriage Act has been

committed by the petitioner and if it then decides to prosecute

them, to seek permission of the Magistrate to investigate the

offence alleged to have been committed under Section 18 of

Hindu Marriage Act and to proceed further, in case the requisite

permission is granted. Alternatively, it is also open to a person

aggrieved by the alleged contravention of Section 5 of Hindu

Marriage Act to file appropriate complaint before a Magistrate in

respect of the offence punishable under Section 18 of Hindu

Marriage Act. It is made clear that this Court is not examining as

to whether offence under Section 18 of Hindu Marriage Act is

made out against the petitioners or not.

The petition stands disposed of with these directions.

(V.K.JAIN) JUDGE FEBRFUARY 9, 2010/bg