Shetherefore relied upon the decision in S. Varadarajan v. State ofMadras
Legal Reasoning
1-APPLN-4953-2024-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD1 CRIMINAL APPLICATION NO. 4953 OF 2024MAHESH RAJESH SALVEVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER...Advocate for Applicant : Ms. Y. A. NamdeAPP for Respondents: Mr. A. R. Kale… CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ. DATED :16th JANUARY, 2025PER COURT :- 1.Present application has been filed for quashing the chargesheetbearing No. 1984608024000601 of 2024 pending before the learnedJudicial Magistrate First Class, Sengaon, District-Hingoli on30.06.2024 arising out of FIR vide C.R. No.6/2024 dated 03.01.2024for the offence punishable under Section 363, 366-A of the IndianPenal Code, 1860 (“IPC”).2.Heard Ms. Namde, learned Advocate appearing for theapplicant and learned A.P.P. appearing for respondent/State.3.Learned Advocate appearing for the applicant has taken us 1-APPLN-4953-2024-2- through the FIR which is lodged by respondent No.2, who is thefather of the kidnapper minor. It is to be noted that when the FIR waslodged it was only under Section 363 of IPC and it was againstunknown person. However, it appears that later on the girl is foundand her statement has been recorded. On the basis of the statement ofthe girl who says that she had voluntarily left the house on01.01.2024 and went to Chhatrapati Sambhajinagar. Waited therewhole night on CIDCO Bus Stop. She then says that although she hadsearched for a room, no room was found, hence she had taken shelterin CIDCO Bus Stand for three to four days. She says that on10.04.2024 she met the applicant. She told him that as her familymembers had planned her marriage against her wish, she had left thehouse. She says that the applicant had then told her that he wouldallow her to pursue further study and would marry her. She says thatthey got married on 13.04.2024. After they had roomed aroundChhatrapati Sambhajinagar between 14.04.2024 to 16.04.2024, theapplicant had taken mobile phone of an unknown person and gavephone call to his relative on 16.04,2024 and informed that theywould be coming to their village. They went from ChhatrapatiSambhajinagar to Mehkar on 17.04.2024. Then applicant had met hisrelative who have brought them to Sengaon Police Station. Afterconsidering this statement, as well as the affidavit which the girl had 1-APPLN-4953-2024-3- filed before learned Sessions Judge when the applicant had filedapplication for bail, learned Advocate for the applicant submits thatthe girl had voluntarily left the guardianship of respondent No.2. Shetherefore relied upon the decision in S. Varadarajan Vs. State ofMadras (AIR 1965 S.C. 942) and submits that it would be unjust toask the applicant to face the trial. Upon questioning she states that inMoniram Hazarika Vs. State of Assam (AIR 2004 (SC) 2472) theHon’ble Supreme Court while distinguishing the decision in S.Varadarajan (supra) that it will have to be seen as to whether theaccused had played any specific role at any stage by which he eithersolicited or persuaded the minor to abandon the legal guardianship tohold him guilty for kidnapping.4.Taking into consideration the submissions on behalf of theapplicant, we are of the opinion that this is not a fit case where evenwe should issue notice to respondent No.2. 5.Learned A.P.P. submits that now the charge sheet is filed. Thereare statements of witnesses and a fact which is coming on record byway of FIR is that when the girl had returned from the house of hermaternal aunt and was found talking on phone. Inquiry was madeand she told the name of the applicant as the person with whom she 1-APPLN-4953-2024-4- was talking. It was told by the father that since she is minor sheshould pursue her eduction and not to talk to any boy. But thereafteralso the girl went missing on 18.12.2023. This indicates that it was atthe instance of the applicant she had left the house. Now in view ofthe statement of the girl, the police have not added offencespunishable under the Protection of Children from Sexual OffencesAct, 2012 or any other Sections. In view of the statement by her thatthere were no physical relations between her and the applicant duringthe said period, however, Section 366-A of IPC has been then added.Let the trial be held.6.The first and foremost fact that requires consideration is thatthe informant who is the legal guardian, i.e., father of the applicanthas specifically stated that the girl was kidnapped. He gave the age ofthe girl as 17 years 9 months. Definitely in view of old decision of S.Varadarajan (supra) it would have been required to see as to whetherthe minor was able to understand the consequences of the Act.However, it is to be noted that at the time of decision in S.Varadarajan (supra) there was no POCSO Act and now in view of thesaid Act the liabilities are more crystallized. Here, in this case, themain incident that is required to be considered is that the girl’sstatement is taken after her marriage with the applicant and 1-APPLN-4953-2024-5- therefore, she was bound to support the applicant. In her statement,she accepts that when she had gone to her aunt’s place she came toknow applicant who was residing behind the house of her aunt butthen she has not stated that at that time itself the love relationshipdeveloped between them. She has stated that though she left herhouse on 18.12.2023 she had gone to the house of her aunt atMehkar but could not meet applicant till 01.01.2024. Then she saysthat she left aunt’s house also on 01.01.2024 at 7 a.m. under therange of anger as her family members were planning her marriageagainst her wish by stopping her education. It is to be noted that evenon that day she was minor. Then as earlier stated she says that shemet the applicant on 10.04.2024, there has to be an explanationwhere she was between 01.01.2024 to 10.04.2024, which is notexplained in her statement under Section 161 of Cr.P.C. and sheappears to have given explanation for three to four days only prior to10.04.2024. Therefore, there are disputed facts and the explanationof the same would come on record only upon the evidence. 7.As aforesaid, in Moniram Hazarika (supra) the Hon’bleSupreme Court had distinguished S. Varadarajan (supra), wherein, itis observed that the facts from S. Varadarajan (supra) were differentand “it is clear from the above observations of this court that if the 1-APPLN-4953-2024-6- accused played some role at any stage by which he either solicited orpersuaded the minor to abandon the legal guardianship, it would besufficient to hold such person guilty of kidnapping.” Further we wouldlike to rely on the case of Anversinh @ Kiransinh Fatesinh Zala Vs.State of Gujarat (Criminal Appeal No.1919 of 2010 decided by a threeJudges Bench on 12.01.2021), wherein, the ingredients of Section361, 366 of IPC have been considered. It has been observed on thelaw point in para 12, as under : “12. A perusal of Section 361 of IPC shows that it is necessarythat there be an act of enticing or taking, in addition toestablishing the child's minority (being sixteen for boys andeighteen for girls) and care/keep of a lawful guardian. Such'enticement need not be direct or immediate in time and can alsobe through subtle actions like winning over the affection of aminor girl. However, mere recovery of a missing minor from thecustody of a stranger would not ipso-facto establish the offence ofkidnapping. Thus, where the prosecution fails to prove that theincident of removal was committed by or at the instigation of theaccused, it would be nearly impossible to bring the guilt home ashappened in the cases of King Emperor v. Gokaran and Emperorv. Abdur Rahman”.8.Further in paragraph Nos.15 and 16 it has been observed asunder:-“15. A bare perusal of the relevant legal provisions, as extractedabove, show that consent of the minor is immaterial for purposesof Section 361 of IPC. Indeed, as borne out through various otherprovisions in the IPC and other laws like the Indian Contract Act,1872, minors are deemed incapable of giving lawful consent.Section 361 of IPC, particularly, goes beyond this simplepresumption. It bestows the ability to make crucial decisionsregarding a minors physical safety upon his/her guardians.Therefore, a minor girl’s infatuation with her alleged kidnappercannot by itself be allowed as a defence, for the same wouldamount to surreptitiously undermining the protective essence of 1-APPLN-4953-2024-7- the offence of kidnapping.“16. Similary, Section 366 of IPC postulates that once theprosecution leads evidence to show that the kidnapping was withthe intention/knowledge to compel marriage of the girl or toforce/induce her to have illicit intercourse, the enhancedpunishment of 10 years as provided thereunder would standattracted”.9.As regards the ratio in respect of S. Varadarajan (supra), it hasbeen observed thus :“17. The ratio of S. Varadarajan (supra), although attractive at firstglance, does little to aid the appellant's case. On facts, the case isdistinguishable as it was restricted to an instance of "taking" and not"enticement". Further, this Court in S. Varadarajan (supra) explicitlyheld that a charge of kidnapping would not be made out only in a casewhere a minor, with the knowledge and capacity to know the fullimport of her actions, voluntarily abandons the care of her guardianwithout any assistance or inducement on part of the accused. The citedjudgment, 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 ofinducement by the accused.10.We are aware that all that is S. Varadarajan (supra), MoniramHazarika (supra) and Anversinh @ Kiransinh Fatesinh Zala (supra)are the cases in criminal appeal where there was already the entireevidence available before the Hon’ble Supreme Court, however, herewe are at a very preliminary stage and therefore when certainexplanations are not forthcoming from the girl and the fact that herstatement itself has been recorded after the marriage, we are of theopinion that this is not a fit case where we should exercise ourinherent powers under Section 482 of Cr.P.C.
Legal Reasoning
1-APPLN-4953-2024-8- 11.The application is rejected at the threshold.[ROHIT W. JOSHI][SMT. VIBHA KANKANWADI] JUDGEJUDGEA.G.Narwade