Anurag Kumar Gangwar @ Deepu vs State & Ors.
2010 Latest Caselaw 1707 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(Crl.) 59/2010

%                         Date of Decision: 26th March, 2010

#     ANURAG KUMAR GANGWAR @ DEEPU ....Petitioner
!                Through: Mr. Ratneshwar Pandey and
                      Mr. A.S. Gangwar, Advs.

                          versus

$     STATE & ORS.                                 ..... Respondent

^                         Through: Mr. Saleem Ahmed, ASC with
                          SI Rajender Prasad

*     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 a petition under Article 226 of the Constitution for

quashing FIR No. 292/2009 registered at Police Station Vijay

Vihar under Section 363 of IPC and for directing Respondents

No. 1 and 2 to release Respondent No.3, who is the wife of the

petitioner.

2. The FIR in this case was lodged by Shri Rakesh Kumar,

father of Respondent No.3, who alleged that his daughter had

left the house on 17th June, 2009 for some work and had not

returned. He suspected that Anurag Kumar had kidnapped his

daughter.

3. Respondent No.3 as well as her parents are present in the

Court. On the request of the complainant, who is the father of

Respondent No.3, he was given opportunity to talk to

respondent No.3. Thereafter, I have recorded the statement of

Respondent No.3 as well as of the complainant. According to

Respondent No.3, she left the house of her parents on 10 th

June, 2009 of her own without any pressure, inducement,

influence, promise or representation from the petitioner

Anurag Kumar. According to her, the petitioner never asked

her to leave the house of her parents and join him. She states

that at the time she left the house of her parents, the

petitioner was working in Muradabad and she of her own,

reached Muradabad and after getting down from the bus at

Muradabad bus stand, she informed the petitioner on

telephone and asked him to come to the bus stand. She

further states that she married the petitioner of her own on

12th June, 2009 in Shiv Mandir, Maula Garh, Muradabad and

also got the marriage registered with Registrar of Hindu

Marriages, Chandosi, Muradabad on 26th June, 2009. She

states that she does not want to go with her parents and wants

to go only with the petitioner, who is her husband and who is

present in the Court alongwith his father. The complainant,

who is the father of Respondent No.3 states that he has talked

to his daughter, who has declined to go with him and,

therefore, he does not want to maintain any connection with

her or her husband Anurag Kumar. He, however, has no

objection if FIR No. 292/2009 lodged by him at Police Station

Vijay Vihar under Section 363 and the proceedings arising

therefrom are quashed.

4. In Neetu Singh vs. State and Ors. 1999 (1) JCC Delhi

170, a Division Bench of this Court held that the marriage of

a minor girl in contravention of Section 5(iii) of Hindu Marriage

Act which prescribes minimum age of 18 years for a girl and

21 years for a boy, is neither void nor voidable. This view was

reiterated in Manish Singh Vs. State Govt. of NCT and Ors.

2006(1) CCC (HC) 208 and Sunil Kumar Vs. State of NCT of

Delhi and Anr. 2007 (2) LRC 56(Del)(DB). Similar view was

taken in Ravi Kumar vs. State 2005 (124) DLT 1 and Phoola

Devi Vs. The State and Ors. 2005 VIII AD Delhi 256. Though

another Division Bench of this Court has referred the matter to

a Larger Bench on the ground that the provisions of the

Prohibition of Child Marriage Act, 2006 which makes

contracting of marriage by a boy above the age of 15 years with

a girl who is less than 18 years of age a cognizable offence, the

decision of the Division Bench in the earlier cases has not

been overruled as yet.

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

complaint made by the father of Madhuri. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

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

inducement or promise on the part of petitioner. Respondent

No. 3 abandoned the guardianship of her parents of her own

went up to Muradabad. She then married him of her own and

also got the marriage registered and persuaded the petitioner

to come to the bus stand and take her with him. She was

capable of understanding the implications of the step taken by

her. Thus, no role at all was played by the petitioner in

Respondent No.3 leaving the house of her parents. No

kidnapping, as defined in Section 361 of IPC, is, therefore,

made out against the petitioner.

12. Considering the fact that no offence punishable under

Section 363 of IPC is made out against the petitioner,

respondent No.3 is already married to the petitioner, wants to

live only with him and has flatly refused to go with her

parents, and even the complainant has no objection to

quashing of the criminal proceedings initiated by him, I feel

that no useful purpose will be served from continuing the

criminal proceedings initiated in this case. Hence, FIR No.

292/2009 registered at Police Station Vijay Vihar under

Section 363 and the criminal proceedings arising therefrom are

hereby quashed. Respondent No.3 be released forthwith from

Nari Niketan where she is presently lodged. She will be at

liberty to go with the petitioner, if she so desires.

(V.K.JAIN) JUDGE MARCH 26, 2010 bg