Himachal Pradesh High Court
Reserved On: 01.05.2025 vs State Of Hp And Others on 9 May, 2025
2025:HHC:13269
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 307 of 2025
Reserved on: 01.05.2025
Date of Decision: 09.05.2025.
Ramu and another ...Petitioners
Versus
State of HP and others ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Ms. Deeksha Thakur,
Advocate.
For the Respondent/State : Mr. Tarun Pathak, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing of FIR No. 41/2023, dated 2.10.2023, registered at
Women Police Station, Baddi, District Solan, H.P. for the
commission of offences punishable under Sections 363 and 366
of the Indian Penal Code and Section 6 of Protection of Children
from Sexual Offences Act (POCSO). It has been asserted that
petitioners No. 1 and 2 were in love with each other. Respondent
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2025:HHC:13269
No.2, the informant, did not approve of their relationship.
petitioner No.2 left her home, and the informant lodged a false
FIR against Petitioner No.1. Petitioner No.2 had accompanied
Petitioner No.1 out of her own free will. They solemnised
marriage on 21.8.2023 as per Hindu rites and ceremonies. They
are living happily as husband and wife. The petitioners tried to
contact the informant, but she did not pick up their call.
Petitioner No.2 denied the allegations of the prosecution in her
statement recorded under Section 164 of the CrPC. Therefore,
the present petition for quashing of the FIR has been filed.
2. Since the petitioners had not arrayed the informant,
the legal guardian of petitioner No.2, therefore, the parties were
heard on the maintainability of the petition.
3. I have heard Ms. Deeksha Thakur, learned Counsel
for the petitioners and Mr. Tarun Pathak, learned Deputy
Advocate General for respondent No.1/State.
4. Ms. Deeksha Thakur, learned counsel for the
petitioner, submitted that the petitioners have married each
other. They are residing happily. No fruitful purpose would be
served by the continuation of proceedings. Therefore, she
2025:HHC:13269
prayed that the present petition be allowed and the FIR be
ordered to be quashed.
5. Mr. Tarun Pathak, learned Deputy Advocate General
for respondent No.1/State, submitted that the offence of
kidnapping is committed against the guardian, and only she can
enter into a compromise. Since the guardian had not entered
into a compromise, therefore, the FIR should not be quashed
based on the compromise.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. Section 361 of IPC defines kidnapping as a lawful
guardian who takes or entices any minor under 18 years of age, if
a female, out of the keeping of the lawful guardian of such
minor, is said to kidnap that person. Therefore, the offence of
kidnapping is committed against the legal guardian from whose
custody the minor is taken out. It was laid down by the Hon'ble
Supreme Court in Prakash vs. State of Haryana (2004) 1 SCC 399
that the offence of kidnapping is for the protection of the minor,
and the only consent of the guardian can take it out of the
purview of section 361. It was observed:
2025:HHC:13269
The object of this section seems to protect the minor
children from being seduced for improper purposes, as to
protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards. The
gravamen of this offence lies in the taking or enticing of a
minor under the age specified in this section, out of the
keeping of the lawful guardian without the consent of
such guardian. The words "takes or entices any
minor ......... out of the keeping of the lawful guardian of
such minor" in Section 361 are significant. The use of the
word "Keeping" in the context connotes the idea of
charge, protection, maintenance and control; further, the
guardian's charge and control appear to be compatible
with the independence of action and movement in the
minor, the guardian's protection and control of the minor
being available, whenever the necessity arises. On a plain
reading of this section, the consent of the minor who is
taken or enticed is wholly immaterial: it is only the
guardian's consent, which takes the case out of its
purview. Nor is it necessary that the taking or enticing
must be shown to have been by means of the force of
fraud. Persuasion by the accused person, which creates
willingness on the part of the minor to be taken out of the
keeping of the lawful guardian, would be sufficient to
attract the Section."
8. This provision was also considered by the Hon'ble
Supreme Court in Anversinha @ Kiransinh Fatesinh Zala vs. State
of Gujarat 2021(3) SCC 129, and it was held:
16. A bare perusal of the relevant legal provisions, as
extracted above, shows that the consent of the minor is
immaterial for the purposes of Section 361 of the IPC.
Indeed, as borne out through various other provisions in
the IPC and other laws like the Indian Contract Act, 1872,
minors are deemed incapable of giving lawful consent.
[Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat, (2015)
2025:HHC:13269
7 SCC 359, 15.] Section 361 IPC, particularly, goes beyond
this simple presumption. It bestows the ability to make
crucial decisions regarding a minor's physical safety
upon his/her guardians. Therefore, a minor girl's
infatuation with her alleged kidnapper cannot by itself be
allowed as a defence, for the same would amount to
surreptitiously undermining the protective essence of the
offence of kidnapping.
9. Therefore, the consent of the minor is not material,
and the offence can only be compromised by the legal guardian.
Since the guardian has not appeared before the Court, therefore,
the matter cannot be said to have been compromised, and the
FIR cannot be quashed based on the compromise between the
parties. This Court refused to quash the FIR registered for the
commission of an offence punishable under Section 363 of IPC
inter alia in Beer Pal vs State of HP 2013 (2) Shim. LC 847 on the
ground that the parties had married each other.
10. Reliance was placed upon the judgment of the
Hon'ble Supreme Court in Mahesh Mukund Patel Vs. State of U.P.
and others, Crl. Appeal No. 001005 of 2025, decided on 28.2.2025,
in which the parties had married, and the FIR under the POCSO
Act was quashed. It is apparent from paragraph 8 of the order
that the informant had consented to the marriage, however,
such a consent is lacking in the present case. Further, it was
2025:HHC:13269
found in para-6 that the victim had attained majority in
September 2016 when the offence occurred. In the present case,
the report shows that the victim was born on 2.2.2006. The
incident occurred on 2.10.2023 when the victim was less than 18
years of age, therefore, the cited judgment will not help the
petitioners.
11. Reliance was also placed upon the judgment of this
Court in Tarjan and another v. State of H.P. and another
2024:HHC:6666 however, it is apparent from para-14 of the
judgment that learned Additional Advocate General had
conceded that no fruitful purpose would be served by
continuation of the proceedings as the chances of conviction
were bleak which is lacking in the present case.
12. Therefore, it is not permissible to quash the FIR in
the present case without the consent of the legal guardian.
13. Consequently, the present petition fails, and the
same is dismissed.
(Rakesh Kainthla)
Judge
9th May, 2025
(Chander)
