Maunish Dinkar Shaw vs State Of Gujarat
2023 Latest Caselaw 2023 Guj

    R/CR.MA/1341/2016                               JUDGMENT DATED: 03/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 1341 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA                                   Sd/-

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1     Whether Reporters of Local Papers may be allowed                  Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                           Yes

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        MAUNISH DINKAR SHAW & 1 other(s)
                                    Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MAHENDRA U VORA(3034) for the Applicant(s) No. 1,2
MR.DISHANT K THAKKAR(7309) for the Respondent(s) No. 2
MS V.C. SHAH, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                Date : 03/03/2023

                                ORAL JUDGMENT

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. By way of this application under Section 482 of Cr.P.C., the applicants are seeking quashment of chargesheet

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filed in connection with the FIR being C.R. No. I-156 of 2015 registered with Anand Town Police Station, Dist: Anand for the offences punishable under Sections 452, 363 and 114 of the Indian Penal Code.

3. Facts and circumstances giving rise to filing of present application are that, the applicant no.1 is the husband of respondent no.2, whereas applicant no.2 is the driver, allegedly employed by the applicant no.1. The marriage took place on 22.06.2005. Out of wedlock, two sons namely Adi aged about 8 years and Arsh aged about 3 years were born. Matrimonial dispute arose between the parties as the wife insisted the applicant to settle at abroad which the applicant no.1 refused since the entire family of the applicant and his business is well set at State of Madhya Pradesh. In the month of January, 2015, the wife had left the matrimonial home on the petty issue and upon intervention of the elderly persons of the family, dispute was resolved and she again came at the matrimonial home. In the month of April, 2015, she again without informing the applicant-husband voluntarily left the matrimonial home along with her minor son Arsh aged about 3 years and came at Anand, at her parental home. At the time of leaving the matrimonial home, she was pregnant. It is in these background facts, the impugned FIR is being lodged on 22.06.2015 , alleging inter-alia, that, the husband-accused and his driver illegally entered into house and took away the minor son namely Arsh aged about 3 years from the lawful custody

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of her without her consent and thereby committed the offence of kidnapping and house trespass. The applicant and his driver apprehended in the alleged offence and after completion of investigation, chargesheet came to be filed for the offences as referred above.

4. Mr. M.U. Vora, learned counsel appearing for and on behalf of the applicants submitted that, the allegations made in the FIR 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 applicants as, the facts mentioned in the FIR do not disclose a cognizable offence, justifying an investigation by the police under Section 156(1) of the Code. Referring to statutory provisions of the Indian Penal Code, learned counsel Mr. Vora would submits that, the applicant is the father of the child, alleged to have been kidnapped by him and therefore in law, he is entitled to the lawful custody of the child and therefore, the allegations do not come within the scope of Section 361 of the Indian Penal Code and his act in taking away the child from the mother does not amount to an offence of kidnapping from lawful guardianship.

5. Mr. Vora, learned counsel would further submits that the FIR has been filed with oblique and ulterior motive to harass the applicants. In fact, the respondent no.2-wife left the matrimonial home without informing the applicant, for which, missing complaint was also filed by the applicant and when he came to know that, the

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respondent no.2 is at her parental home at Anand, he came there to convince and bring back to her at matrimonial home as she was pregnant by five months and no one is there for looking after the wife and in such circumstances, the applicant no.1 requested the wife to give custody of minor son Arsh. Thus, therefore, he would urge that, later on, by fabricating the story of house trespass and kidnapping of minor son, the questioned FIR was being filed which amounts to sheer abuse of process of law and Court.

6. In the aforesaid contentions, learned counsel Mr. M.U. Vora submitted that, as per settled law, no offence can be said to have been made out against the applicants and therefore, it is a fit case to exercise inherent powers vested with this Court under Section 482 of Cr.P.C.

7. Opposing the petition, learned State counsel contended that, at this stage whether allegations are truthful or not cannot be appreciated, as guilt or otherwise of the accused-applicants can be proved only after conducting a full fledged trial and therefore, considering the allegations leveled in the FIR, cognizable offence has been disclosed, the Court should not exercise its jurisdiction as no extra ordinary circumstances exist to exercise the jurisdiction.

8. Having regard to the facts and circumstances of the present case, the question for consideration is whether the case is made out to exercise inherent powers to

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quash the questioned FIR and consequential proceedings therefrom?

9. The applicants have been charged with Section 361 and 452 of the Indian Penal Code. Before adverting to the issue raised, it is necessary to refer Section 361 of the Indian Penal Code which reads thus:

"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.

Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

10. The contention of the applicants that, the applicant no.1 being a father is entitled to the lawful custody of the child and therefore, Section 361 of the Indian Penal Code is not attracted and considering the exception to the section, it does not extend to the act of person who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. On the facts on hand, the applicant no.1 being a father, is entitled to lawful custody

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of the child. As per the allegations, he took away the child from the lawful custody of the mother. At relevant time, admittedly she was pregnant and pursuant to the missing complaint, the applicant no.1-husband along with his driver came at the parental home of the wife and requested her to handover the custody of the minor so that she can take care of her pregnancy. So, it is the case of the father that, he is entitled to the lawful custody of the child for which, respondent no.2 refused to handover it to him. In order to constitute an offence under Section 361 of the Indian Penal Code, there must be a kidnapping of a person from lawful guardianship. Here the applicant is himself the lawful guardian of the minor. It cannot therefore, be said that, he committed an offence under Section 361 of the Indian Penal Code by getting the custody of his own son from his wife. It needs to be noted that, though the wife-respondent no.2 may be a lawful guarding as against any other persons except the father or any other person who has been appointed as the legal guardian by virtue of an order of the competent Court. In the case of Capt. Vipin Menon vs. The State of Karnataka (1992 CRI. L.J. 3737), the Bench of High Court of Karnataka held that, a father of child is a person who is entitled to the lawful custody of the child and he will not come within the scope of Section 361 of Indian Penal Code even if he takes away the child from the keeping of the mother. She may be lawful guardian as against any others except the father. So long as there is no divestment of the right of the guardianship of a father, he

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cannot be guilty of an offence under Section 361 of the Indian Penal Code.

11. For the foregoing reasons, father being a natural and lawful guardian, removal by him of his son below 5 years of age from his mother is not an offence under Section 361. In the result, therefore, it is obvious that, even if all the allegations made in the FIR are held to be true and accepted in its entirety, no offence under Section 363 of the Indian Penal Code and Section 452 of the Indian Penal Code are made out against the applicants. The case on hand is fully covered by categories (i) and (iii) as enumerated by the Apex Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 Suppl. SCC 335).

12. In the circumstances, this Court is of considered view that, the continuation of the criminal proceedings is nothing but an abuse of process of law and for the ends of justice, the FIR is require to be quashed. Resultantly, the impugned FIR being C.R. No. I-156 of 2015 registered with Anand Town Police Station, Dist: Anand for the offences punishable under Sections 452, 363 and 114 of the Indian Penal Code as well as other consequential proceedings are hereby quashed and set aside qua the applicants herein. Accordingly, Rule is made absolute. Direct service is permitted.

Sd/-

(ILESH J. VORA,J) TAUSIF SAIYED