Vishnu Kumar & Anr. vs State & Anr.
2010 Latest Caselaw 1381 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(CRL) 1248/2009 and Crl.M.A.No. 10426/2009

%                 Date of Order: 12th March, 2010.

#     VISHNU KUMAR & ANR.               ..... Petitioner
!                Through: Mr.Vimal Puggal, Adv.

                  versus


^     STATE & ANR.                             ..... Respondent

$                      Through: Mr. Akshay Bipin, ASC with
                       Mr. R.Sharma, PS Karawal Nagar, Delhi

*     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
            reported in the Digest?                          No

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

1. This is petition for quashing FIR No.211/2009 lodged by

Respondent No.2 Smt. Nirmal Devi at Police Station Karawal

Nagar under Section 363 of IPC. It was alleged in the FIR that

the daughter of the complainant, born on 23rd May, 1992, was

missing since 21st August, 2009. The FIR was lodged on 28th

August, 2009. In the FIR, Respondent No.2 suspected that her

daughter had been induced and taken away by Petitioner No.1

Vishnu Kumar. The petition has been filed jointly by Vishnu

and Smt. Sonia, the daughter of the complainant, whose

kidnapping was alleged in the FIR.

2. Petitioner No.2 was examined before the Magistrate under

Section 164 of Cr.P.C. on 08th September, 2009. In her

statement to the Magistrate, she stated that in the night of

20th August, 2009, she left the house of her parents, hired an

auto-rickshaw and went to Anand Vihar, ISBT from where she

boarded a bus for Aligarh. On reaching Aligarh, she rang up

petitioner No.1 from her mobile and asked him to come to

Aligarh to take her. Vishnu, however, advised her to go back

home. According to the prosecutrix, she refused to go back

home and started weeping, whereupon petitioner No.1 reached

Aligarh in the vehicle of a friend. He offered to drop her back to

her house, but she refused. Thereupon, the petitioner took

her to Meerut and next day, she was brought to Noida. On

reaching Noida, the petitioner No.1 again offered to drop her at

her residence, but she again refused and insisted on marrying

him. Thereafter, both of them got married at Arya Samaj

Mandir on 27th August, 2009. She also claimed that the

marriage was also solemnized at Tis Hazari Courts.

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

complaint made by the mother of Sonia. 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 17 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.

4. 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.

5. 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.

6. 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.

7. 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 fourteen 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.

8. 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.

9. In the present case, there has been no coercion,

inducement or promise on the part of petitioner No.1.

Petitioner No.2 abandoned the guardianship of her parents of

her own and in fact, pressurized petitioner No.1 to come to

Aligarh and take her with him. She did not heed the advice of

petitioner No.1 to go back home and insisted on his marrying

her. She repeatedly refused the offer and suggestion of

petitioner No.1 to return to the house of her parents. She being

more than 17 years old at that time, she knew the import of

what she was doing. She was capable of understanding the

implications of the step taken by her. Thus, no role at all was

played by petitioner No.1 in petitioner No.2 leaving the house

of her parents. No kidnapping, as defined in Section 361 of

IPC, is, therefore, made out against petitioner No.1.

10. For the reasons given in the preceding paragraphs,

FIR No.211/2006 registered at Police Station Karawal Nagar

under Section 363 of IPC is hereby quashed.

11. Copy of the statement under Section 164 of Cr.P.C. may

be placed on record.

(V.K.JAIN) JUDGE MARCH 12, 2010/bg