Delhi High Court
Raj Kumar Chaurasia vs State ( Govt/ Of Nct Of Delhi) & Ors. on 21 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st December, 2021
IN THE MATTER OF:
+ CRL.M.C. 1437/2021
RAJ KUMAR CHAURASIA ..... Petitioner
Through: Mr. Rajesh Anand, Mr. Anshuman
Vashistha, Mr. Gaurav Adlakha, Mr.
Pawan Yadav, Mr. Manjeet Gulliya,
Mr. Abhijit Kumar, Ms. Harleen
Kaur, Mr. Parth Chaturvedi & Mr.
Vibhu Bhardwaj, Advocates.
versus
STATE ( GOVT/ OF NCT OF DELHI) & ORS. ..... Respondents
Through: Ms. Meenakshi Chauhan, APP for the
State.
Ms. Rakhi Dubey, Advocate for the
complainant.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. This petition under Section 482 Cr.P.C is for quashing FIR
No.38/2021 dated 07.002.2021 registered at Police Station Paschim Vihar
East for offences under Section 363 IPC.
2. The instant FIR was registered on the complaint of one Chanda Devi
W/o Jugal Mandal. It is stated that the complainant is a housewife and lives
at C-405, Peeragarhi Camp, Paschim Vihar, East Delhi, along with her
husband and six children, out of which four are girls and two are boys. It is
stated that her youngest daughter "K" is studying in 11th standard. It is
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By:RAHUL SINGH
Signing Date:22.12.2021
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further stated that on 06.02.2021 "K" went to school and did not return back.
It is stated that "K" was born on 15.03.2003, she has wheatish complexion
and her height is about 4'10". It is stated that on 06.02.2021 she had worn
her school uniform. It is stated that the complainant apprehended that Raj
Kumar Chaurasia (the petitioner herein) S/o Suraj Chaurasia R/o Swarup
Nagar, would have kidnapped "K". On the said complaint FIR No.38/2021
dated 07.002.2021 was registered at Police Station Paschim Vihar East for
offences under Section 363 IPC.
3. The petitioner has approached this Court for quashing of the
abovementioned FIR.
4. Notice was issued on 23.06.2021. On 04.08.2021, Delhi High Court
Legal Services Committee was requested to provide a counsel for the
complainant. Ms. Rakshi Dubey, learned Counsel has appeared for the
complainant.
5. Status Report has been filed. It is stated in the Status Report that "K"
appeared before the Investigating Officer on 23.07.2021 through her
counsel. It is stated that the Investigating Officer recorded her statement
under Section 164 Cr.P.C. In her statement, "K" stated that she was in love
with the petitioner herein but her parents were against the relationship and
they used to beat her. She further stated that on 06.02.2021 she went to the
petitioner herein at Azadpur Sabzi Mandi and they got married on
02.03.2021. She stated that she is happy with the petitioner herein and wants
to reside with him and does not want to go with her parents. The school
records were verified and the date of birth of "K" was found to be
15.03.2003, therefore, the date on which she went missing, her age was 17
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years 10 months & 22 days and the date on which she got married to the
petitioner herein her age was 17 years 11 months & 12 days.
6. Mr. Rajesh Anand, learned counsel appearing for the petitioner,
contends that the facts disclose that the petitioner had not induced "K" and
had not taken her out of lawful guardianship of her parents. He states that it
was "K" who went to the petitioner and asked him to take her away from her
parents. He, therefore, states that the offence of kidnapping from the lawful
guardianship of the parents of "K" is not made out against the petitioner.
The learned counsel for the petitioner places reliance on the judgment of the
Supreme Court in S. Varadarajan v. State of Madras, (1965) 1 SCR 243.
7. Per contra, Ms. Meenakshi Chauhan, learned APP for the State,
opposes the instant petition by contending that the petitioner has committed
the offence of kidnapping. She states that the question as to whether the
petitioner herein induced "K" or not is a matter of trial and cannot be
decided at this juncture.
8. Ms. Rakhi Dubey, learned counsel appearing for the complainant,
adopts the contentions made by the learned APP for the State and submits
that in the facts of the present case, offence under Section 363 IPC is made
out against the petitioner and only trial would decide as to whether the
petitioner has committed the offence or not.
9. Heard Mr. Rajesh Anand, learned counsel for the petitioner, Ms.
Meenakshi Chauhan, learned APP for the State, Ms. Rakhi Dubey, learned
counsel for the complainant, and perused the material on record.
10. Even as per the case of prosecution, "K" went missing on 06.02.2021
and she appeared before the Investigating Officer on 23.07.2021 stating that
she went to the petitioner and requested him to take her away from her
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parents and the petitioner and "K" got married on 02.03.2021. "K" has
refused to undergo medical examination and there is no allegation of an
offence under Section 376 IPC. The material on record also shows that on
18.03.2021 "K" gave a letter to the SHO, Paschim Vihar, stating that she fell
in love with the petitioner herein and on 06.02.2021 she voluntarily, without
any pressure, went to meet him at Azadpur Mandi where she told the
petitioner that she is being beaten up and ill treated by her parents because of
the fact that she was in love with the petitioner and she requested the
petitioner to take her away with him. It is stated that "K" pressurized the
petitioner to take her with him and stated that she would be happy with him
wherever he takes her. It is further stated that "K" warned the petitioner that
if he refused to take her along with him, she would commit suicide. It is
further stated that the petitioner herein and "K" got married on 02.03.2021
and at the time of marriage "K" was 17 years 11 months & 12 days old. It is
stated that on 15.03.2021 "K" attained the age of majority and she is happy
with the petitioner and wants to spend rest of her life with the petitioner.
11. Section 361IPC reads as under:
"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."
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By:RAHUL SINGH
Signing Date:22.12.2021
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12. The learned counsel for the petitioner has placed reliance on the
judgment of the Supreme Court in S. Varadarajan v. State of Madras, (1965)
1 SCR 243. In the facts of that case, the prosecutrix - Savitri became
friendly with the appellant therein( Varadarajan) who was her neighbour.
The facts of that case reveal that on being questioned as to why Savitri meets
the appellant therein, she stated that she wants to marry him. Savitri was
admonished. It is stated that Savitri left her house and asked the appellant
therein to meet her at a particular point. It is stated that they went to the
Registrar's office and gave an application to get married and started making
arrangements for the marriage. It is stated that parents of Savitri made efforts
to search her and when she did not return a police complaint was lodged and
FIR under Section 361 IPC was registered against the appellant therein. In
the facts of that case, the short question which arose before the Supreme
Court was as to whether Varadarajan, the appellant therein, has committed
the offence of kidnapping or not. It is pertinent to mention here that in that
case also the girl was nearly 18 years old. The Supreme Court, while
disposing of that case, observed as under:
"9. It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves
from laying down that in no conceivable circumstances
can the two be regarded as meaning the same thing for
the purposes of Section 361 of the Indian Penal Code.
We would limit ourselves to a case like the present
where the minor alleged to have been taken by the
accused person left her father's protection knowing
and having capacity to know the full import of what
she was doing voluntarily joins the accused person. In
such a case we do not think that the accused can be
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said to have taken her away from the keeping of her
lawful guardian. Something more has to be shown in a
case of this kind and that is some kind of inducement
held out by the accused person or an active
participation by him in the formation of the intention of
the minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father's protection no active part was
played by the accused, he had at some earlier stage
solicited or persuaded the minor to do so. In our
opinion, if evidence to establish one of those things is
lacking it would not be legitimate to infer that the
accused is guilty of taking the minor out of the keeping
of the lawful guardian merely because after she has
actually left her guardian's house or a house where her
guardian had kept her, joined the accused and the
accused helped her in her design not to return to her
guardian's house by taking her along with him from
place to place. No doubt, the part played by the
accused could be regarded as facilitating the fulfilment
of the intention of the girl. That part, in our opinion,
falls short of an inducement to the minor to slip out of
the keeping of her lawful guardian and is, therefore,
not tantamount to "taking".
*****
14. The last case relied upon by the High Court is
Ramaswami Udayar v. Raju Udayar [1952 MWN 604]
which is also a case under Section 498 IPC. In that
case the High Court has followed the two earlier
decisions of that court to which we have made
reference but in the course of the judgment the learned
Judge has observed that it is not open to a minor in
law to abandon her guardian, and that, therefore,
when the minor leaves the guardian of her own accord
and when she comes into the custody of the accused
person, it is not necessary that the latter should be
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shown to have committed an overt act before he could
be convicted under Section 498. The learned Judge has
further observed:
"A woman's free will, or her being a free agent,
or walking out of her house of her own accord are
absolutely irrelevant and immaterial for the
offence under Section 498."
Whatever may be the position with respect to an
offence under that section and even assuming that a
minor cannot in law abandon the guardianship of her
lawful guardian, for the reason which we have already
stated, the accused person in whose company she is
later found cannot be held guilty of having taken her
out of the keeping of her guardian unless something
more is established.
*****
19. ........After pointing out that there is an essential
distinction between the words "taking" and "enticing"
it was no doubt observed that the mental attitude of the
minor is not of relevance in the case of taking and that
the word "take" means to cause to go, to escort or to
get into possession. But these observations have to be
understood in the context of the facts found in that
case. For, it had been found that the minor girl whom
the accused was charged with having kidnapped had
been persuaded by the accused when she had gone out
of her house for answering the call of nature, to go
along with him and was taken by him to another
village and kept in his uncle's house until she was
restored back to her father by the uncle later. Thus,
here there was an element of persuasion by the
accused person which brought about the willingness of
the girl and this makes all the difference. In our
opinion, therefore, neither of these decisions is of
assistance to the State."
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By:RAHUL SINGH
Signing Date:22.12.2021
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13. In the facts of the present case, "K" was 17 years 11 months & 12
days old at the time of marriage which is less than one month below the age
of majority. "K" lives in a Metropolitan city and has studied till 11th
standard. She has categorically stated in her statement under Section 164
Cr.P.C that she was in love with the petitioner herein and her parents used to
object to their relationship. The facts also reveal that it was "K" who went to
the petitioner and virtually forced him to take her away from her parents.
The petitioner has married "K" and is living happily with him. It, therefore,
cannot be said that there was any kind of inducement by the petitioner and as
stated by "K" in her statement under Section 164 Cr.P.C, there was no active
participation by the petitioner in the alleged offence of kidnapping.
14. "K" was on the verge of attaining majority and it cannot be said that
she was incapable of knowing as to what is good and what is bad for her.
She desired to get married to the petitioner and went to the petitioner and
expressed her desire and persuaded the petitioner to take her with him and
get married. Therefore, in the facts of this case, there was no inducement by
the petitioner.
15. The short question which arises, therefore, is whether this Court must
exercise its jurisdiction under Section 482 Cr.P.C for quashing the FIR or
not.
16. It is well settled that Section 482 Cr.P.C gives inherent powers to the
High Court and the purpose of Section 482 Cr.P.C is to prevent the abuse of
the process of law and more particularly, to secure the ends of justice. The
opening words of Section 482 Cr.P.C "nothing in this Code" shows that
Section 482 Cr.P.C is an over-riding provision. These words indicate that
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none of the provisions of the Code limits or restricts the inherent powers of
Section 482 Cr.P.C.
17. The purpose of Section 482 Cr.P.C is primarily to secure the ends of
justice. In Gian Singh v. State of Punjab, (2012) 10 SCC 303, the Supreme
Court has observed as under:
"55. In the very nature of its constitution, it is the
judicial obligation of the High Court to undo a wrong
in course of administration of justice or to prevent
continuation of unnecessary judicial process. This is
founded on the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse non
potest. The full import of which is whenever anything is
authorised, and especially if, as a matter of duty,
required to be done by law, it is found impossible to do
that thing unless something else not authorised in
express terms be also done, may also be done, then that
something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, complete and
substantial justice for which it exists. The power
possessed by the High Court under Section 482 of the
Code is of wide amplitude but requires exercise with
great caution and circumspection.
56. It needs no emphasis that exercise of inherent
power by the High Court would entirely depend on the
facts and circumstances of each case. It is neither
permissible nor proper for the court to provide a
straitjacket formula regulating the exercise of inherent
powers under Section 482. No precise and inflexible
guidelines can also be provided."
18. Similarly, in Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330,
the Supreme Court has observed as under:
"30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
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determine the veracity of a prayer for quashment
raised by an accused by invoking the power vested in
the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by
the accused is sound, reasonable, and indubitable
i.e. the material is of sterling and impeccable
quality?
30.2.Step two: whether the material relied upon by
the accused would rule out the assertions contained
in the charges levelled against the accused i.e. the
material is sufficient to reject and overrule the
factual assertions contained in the complaint i.e. the
material is such as would persuade a reasonable
person to dismiss and condemn the factual basis of
the accusations as false?
30.3.Step three: whether the material relied upon by
the accused has not been refuted by the
prosecution/complainant; and/or the material is
such that it cannot be justifiably refuted by the
prosecution/complainant?
30.4.Step four: whether proceeding with the trial
would result in an abuse of process of the court, and
would not serve the ends of justice?
30.5. If the answer to all the steps is in the
affirmative, the judicial conscience of the High
Court should persuade it to quash such criminal
proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious
court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same
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would not conclude in the conviction of the
accused."
19. Applying the abovementioned principles to the facts of this case, this
Court is of the opinion that "K", who was 17 years 11 months & 12 days old
at the time of marriage, which is less one month below the age of majority,
has taken a conscious decision to get married to the petitioner herein and has
gone to the petitioner and persuaded him rather forced him to take her with
him. The petitioner has married "K" and on attaining the age of majority "K"
has gone to the Police Station and has informed about her whereabouts and
has narrated the incident to the Police. "K" and the petitioner are happily
married and to secure the ends of justice it is expedient that the instant FIR
be quashed. Resultantly, FIR No.38/2021 dated 07.002.2021 registered at
Police Station Paschim Vihar East for offences under Section 363 IPC and
the proceedings emanating therefrom are hereby quashed.
20. Accordingly, the petition is disposed of along with the pending
application(s), if any.
SUBRAMONIUM PRASAD, J
DECEMBER 21, 2021
Rahul
Signature Not Verified
By:RAHUL SINGH
Signing Date:22.12.2021
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