Chandrapal vs The State Of Madhya Pradesh
2021 Latest Caselaw 2141 MP

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         THE HIGH COURT OF MADHYA PRADESH
                  MCRC No.17575/2021
                Chandrapal vs. State of M.P.

                Heard through Video Conferencing

Gwalior, Dated : 07.06.2021

      Shri Amit Lahoti, Counsel for the applicant.

      Shri Rohit Shrivastava, Panel Lawyer for the respondent/State.

Case diary is available.

This second application under Section 439 of Cr.P.C. has been

filed for grant of bail. The first application was dismissed as

withdrawn by order dated 13.1.2021 passed in M.Cr.C.No.184/2021.

The applicant has been arrested on 16.12.2020 in connection

with Crime No.721/2020 registered by Police Station Dehat, District

Ashoknagar for offence punishable under Sections 363, 376 of IPC

and Section 3/4 of POCSO Act.

It is submitted by the counsel for the applicant that according

to the prosecution case, the prosecutrix is less than 18 years. In her

statement under Section 161 of Cr.P.C., she has stated that when

nobody was in the house, she left her house and met with the

applicant on her way, from where they went to Indore, where they

voluntarily had physical relationship. By referring to statement under

Section 164 of Cr.P.C., it is submitted by Shri Lahoti that although

the factum of leaving the parental home voluntarily has been narrated

by the prosecutrix, but she has not stated anything about the physical

relationship. The applicant is in jail from 16.12.2020.

THE HIGH COURT OF MADHYA PRADESH MCRC No.17575/2021 Chandrapal vs. State of M.P.

Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that if somebody entices a girl to

leave her parental home, then it would amount to kidnapping.

Heard the learned counsel for the parties.

The Supreme Court in the case of Anversinh @ Kiransinh

Fatesinh Zala Vs. State of Gujarat in Criminal Appeal No.

1919/2010 decided on 12.01.2021 has held as under:-

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

18. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not

THE HIGH COURT OF MADHYA PRADESH MCRC No.17575/2021 Chandrapal vs. State of M.P.

thought her actions through fully.

19. It is apparent that instead of being a valid defence, the appellant's vociferous arguments are merely a justification which although evokes our sympathy, but can't change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC."

Merely because the prosecutrix left her parental home, would

not ipso facto take out the act of the accused out of the offence under

Sections 363, 366 of IPC. It is the case of the prosecution that the

applicant and the prosecutrix were known to each other and

immediately after the prosecutrix left her parental home, they went to

Indore. Thus, prima facie, it is clear that the prosecutrix must have

left her parental home on the inducement by the applicant.

So far as the contradiction in the statements under Sections 161

and 164 of Cr.P.C. is concerned, the said fact is to be taken note of by

the Trial Court.

In view of the allegations made against the applicant, no case

is made out for grant of bail. The application fails and is hereby

dismissed.

                                                           (G.S. Ahluwalia)
(alok)                                                         Judge



 ALOK KUMAR
 2021.06.08 10:49:08 +05'30'