Madhya Pradesh High Court

Mohd. Amir Khan vs The State Of Madhya Pradesh on 10 November, 2021

Author: Gurpal Singh Ahluwalia

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       THE HIGH COURT OF MADHYA PRADESH
             Criminal Revision No.2843/2021
Mohd. Amir Khan and another Vs. The State of MP and another

Gwalior, Dated: 10-11-2021

      Shri Padam Singh with Shri Udayveer Singh Sikarvar,

Advocate for applicant.

      Shri BPS Chauhan, Public Prosecutor for respondent

no.1/State.

This Criminal Revision under Section 397 read with Section

401 of Cr.P.C. has been filed against the order dated 27/9/2021

passed by Special Judge (POCSO, Act), Mungaoli, District Ashok

Nagar in Special Sessions Trial No.39/2021, by which the charges

under Sections 363, 366-A of IPC and Section 11(vi) read with

Section 18 of the POCSO, Act have been framed.

2. It is submitted by the counsel for the applicant that according

to the prosecution case, the complainant lodged a complaint that on

25/6/2021 he had gone to Mungaoli to purchase household articles.

In the evening he came back to village Beelakheda alongwith the

Sarpanch and went to the house of Sarpanch situated in village

Majhpera and stayed in the night in the house of Sarpanch itself. In

the morning he was informed by his aunt that his wife "X" is not in

the house and she has left the house without informing anybody. He

tried to search out his wife, but could not get any information. She is

aged about 20 years and is wearing green Saree and blouse. During

enquiry of Guminsan the complainant was asked to produce the

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

mark-sheet of "X", which was produced on 30/6/2021 and

accordingly, it was found that her date of birth is 20/12/2003 and she

is aged about 17 years and 6 months. Since somebody had kidnapped

her after enticing her, therefore, offence under Section 363 of IPC

was registered.

3. The prosecutrix "X" was recovered and her statement under

Section 161 of Cr.P.C. was recorded. She stated that about three years

back, her father had expired and about one year back her mother had

married her in accordance with Hindu rites and rituals. However, she

was liking the applicant no.1 and even after her marriage, they

continued to talk to each other. On 24/6/2021 she called the applicant

no.1 on his mobile and requested that he should take her with him for

marriage and accordingly, the applicant no.1 informed that he is

sending applicant no.2, who would leave her at Sagar and would

make certain arrangements for a room and few days thereafter he

would come there and then they would get married. On 25/6/2021 her

husband/complainant had gone to Mungaoli for purchasing

household articles and niece and her Jeth were in the house and they

went to sleep and at about 12 in the night, she enquired about the

whereabouts of applicant no.1, who informed that he is on the way

and, therefore, the prosecutrix "X" must come out of her house.

Accordingly, she left her house without informing anybody. The

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

applicant no.2 took her to Sagar, but could not arrange for any room

and thereafter, the applicant no.1 informed that the prosecutrix "X"

should go to Bhopal where she would get a room. Accordingly, the

applicant no.1 took her to Bhopal on his motorcycle and room was

arranged. However, she is not aware of the location of the said room.

When the applicant no.1 did not come, then she came back to

Mungaoli by a bus and when she reached near Bengali Square, the

police of Bahadurpur Police Station also came there and took her to

the Police Station. It is further alleged that she has not been

physically violated.

4. Challenging the charges, which have been framed against the

applicants, it is submitted that in the FIR the husband of the

prosecutrix "X" had disclosed her age as 20 years and, therefore, it is

clear that she was major. It is clear from the statement of the

prosecutrix "X" recorded under Sections 161 and 164 of Cr.P.C. that

in fact it was the prosecutrix, who was insisting that the applicant

no.1 must marry her and accordingly, only on her insistence, the

applicant no.1 had agreed to make arrangements for the marriage

with her and thus, no offence under Sections 363, 366-A of IPC

would be made out. It is further submitted that since the prosecutrix

was major, therefore, no offence under Section 11 (vi) read with

Section 18 of the POCSO, Act would be made out.

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

5. Per contra, the prayer is vehemently opposed by the counsel

for the State.

6. So far as the question of age of the prosecutrix is concerned,

the only reliance by the applicant is the age disclosed by her husband

in the FIR. The Supreme Court in the case of Joginder Singh Vs.

State of Haryana reported in (2014) 11 SCC 335 has held that the

age of a victim is to be assessed as per the provisions of Juvenile

Justice (Care and Protection of Children) Act, 2015. Section 94 of the

Act, 2015 reads as under:-

"94. Presumption and determination of age.- (1)Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and

(ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

7. Therefore, for ascertaining the age of the prosecutrix, the Court

has to look into the documents and cannot rely upon the age

disclosed by her husband in the FIR for the purposes of framing of

charges. The prosecution has filed a copy of the school admission

to which, the date of birth of the prosecutrix is 20/12/2003. The

prosecutrix went missing on 24/6/2021. Thus, it is clear that she was

less than 18 years of age. If the child below the age of 18 years is

taken out of the custody of her guardian, then it would be an offence

of kidnapping. The submission made by the counsel for the applicant

is that the prosecutrix herself had gone with the applicant no.2 with a

solitary intention to marry the applicant no.1, therefore, it is clear that

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

the applicant did not remove the prosecutrix "X" from the custody of

her guardian.

8. Heard learned counsel for the parties.

9. From the plain reading of statement recorded under Sections

161, 164 of Cr.P.C., it is clear that the applicant no.1 and the

prosecutrix were on talking terms and in spite of getting married, the

prosecutrix continued to talk to the applicant no.1. When she

requested the applicant no.1 for marriage, then it was the applicant

no.1, who made arrangements for shifting the prosecutrix from her

matrimonial house to Sagar and ultimately to Bhopal. By no stretch

of imagination, it can be said that there was absolutedly no

enticement on the part of applicant no.1.

10. So far as applicant no.2 is concerned, it is not the case of the

applicants that he had taken away the prosecutrix after obtaining due

permission from her in-laws.

11. 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:-

"14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion,

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of 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. 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.

16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

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

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.2843/2021 Mohd. Amir Khan and another Vs. The State of MP and another

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 thought her actions through fully."

12. It is submitted by the counsel for the applicant that the

Supreme Court in the case of Satishchandra Ratanlal Shah Vs.

State of Gujarat and another reported in (2019) 9 SCC 148 has

held that even at the stage of framing of charge the Court has to apply

its judicial mind to the material placed before it and has to come to a

clear conclusion that a prima facie case has been made out, because

framing of charge is of serious concern to the accused, as it affects

the liberty substantially.

13. Roving enquiry and meticulous appreciation of evidence is not

permissible at the time of framing of charges. Even a grave suspicion

that a person might have committed the offence is sufficient to frame

charge. Under these circumstances, this Court is of the considered