Telangana High Court
Mohd. Jeelani, Warangal Dist. vs P.P., Hyd Ano on 20 October, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.889 OF 2015
Between:
Mohd.Jeelani
... Petitioner
And
1. The State of Telangana, rep. by
its Public Prosecutor,High Court
for the State of Telangana, Hyderabad
...Respondent
2. Smt.Safiya Begum
... Respondent/
defacto complainant
DATE OF JUDGMENT PRONOUNCED: 20.10.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 889 of 2015
% Dated 20.10.2022
# Mohd.Jeelani
... Petitioner
And
$1. The State of Telangana, rep. by
its Public Prosecutor,High Court
for the State of Telangana, Hyderabad
...Respondent
2. Smt.Safiya Begum
... Respondent/
defacto complainant
! Counsel for the Petitioners: Sri V.R.Machavaram
^ Counsel for the Respondents: Public Prosecutor for R1
G.L.Narasimha Rao for R2.
>HEAD NOTE:
? Cases referred
1
(1993) 2 SCC 6
3
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No. 889 OF 2015
O R D E R:
This Criminal Petition under Section 482 of the Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.'), is filed seeking to quash the FIR in
Crime No.396 of 2014 on the file of Saidabad Police Station against the
petitioner. The petitioner herein is accused in the said crime. The
offence alleged him is under Section 363 of IPC.
2. Heard learned counsel for the petitioner and learned Assistant
Public Prosecutor appearing for the State and perused the record.
3. According to the complaint filed on 18.11.2014, the 2nd
respondent/defacto complainant stated that four months prior to the
complaint, her daughter namely Mybhin and her younger son
Mohd.Omer Farooq were taken away by her husband from her
residence. Again on 15.11.2014 her elder son Mohd.Abdul Quavi was
taken away by her husband from school. The children were in her
custody and when asked, the father of the petitioner informed that the
children will be handed over, but, failed to hand over the children and
as such she requested to take necessary action against the petitioner.
4. On the basis of the said complaint, police registered the present
FIR for the offence under Section 363 of the Indian Penal code.
5. Section 361 of Indian Penal Code reads as follows;
361. Kidnapping from lawful guardianship.--Whoever takes or entices
any minor under [sixteen] years of age if a male, or under [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.
6. Admittedly, the petitioner is none other than the husband of the
defacto complainant and biological father of the children. He is the
natural guardian of the children. Admittedly, a case vide
O.P.SR.No.7051 of 2014 filed by the petitioner herein in the month of
December, 2014 for custody and for appointing him as natural
guardian of his children, was pending before the Family Court, City civil
Courts, Hyderabad; and that the children are in his custody.
7. Section 363 of the Indian Penal Code makes kidnapping a
punishable offence and whoever kidnaps a minor or entices any minor
under the age of 16 in case of male or under the age of 18 in case of
female, without consent of the guardian, is said to kidnap such minor
from lawful guardianship.
8. The petitioner is the natural and legal guardian of his children
even after the separation of the petitioner and the complainant by
divorce on 11.11.2014. For the said reason, the petitioner who is the
father and natural guardian of the children cannot be prosecuted for
the offence under Section 363 of the Indian Penal Code. There is no
order by any competent Court granting custody of the children to the
complainant.
9. The Honourable Supreme Court in Chandrakala Menon (MRS) v.
Vipin Menon (CAPT) 1 held that taking away of the minor daughter by
the father will not amount to kidnapping.
10. No offence is made out against the petitioner for taking his own
children to take care of them, by no stretch of imagination the act of the
petitioner can be termed as kidnap. For the said reasons, the
proceedings in Crime No.396 of 2014 against the petitioner for the
offence under Section 363 of the Indian Penal Code, cannot be allowed
to continue and are liable to be quashed.
11. Accordingly, the Criminal Petition is allowed and the FIR in Crime
No.396 of 2014 on the file of the Saidabad Police Station against the
petitioner/accused, is quashed.
Miscellaneous applications pending, if any, shall stand closed.
________________
K.SURENDER, J
Dt.:20.10.2022
Note: L.R.copy
tk
(1993) 2 SCC 6
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NO. 889 OF 2015
Dt. 20.10.2022
tk
