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Bihari Sonkar @ Satish And Ors. vs State Of U.P. Thru. Secy. Home And … on 4 February, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Court No. – 9

Case :- MISC. BENCH No. – 10270 of 2018

Petitioner :- Bihari Sonkar @ Satish And Ors.

Respondent :- State Of U.P. Thru. Secy. Home And Ors.

Counsel for Petitioner :- Gyanendra Pathak

Counsel for Respondent :- Govt. Advocate

Hon’ble Ajai Lamba,J.

Hon’ble Rajeev Singh,J.

ORAL

1. The legal issue for consideration in this case is –

Would offence under Section 363 Indian Penal Code read with Section 361 Indian Penal Code be committed, in case a minor of her own volition, without inducement or coercion, goes out of keeping of her lawful guardian?

2. The petition seeks issuance of a writ in the nature of certiorari quashing impugned First Information Report No. 0072 of 2018, under Sections 363, 366 Indian Penal Code, Police Station Khairighat, District Bahraich.

3. The impugned First Information Report has been registered at the instance of Lallan, father of petitioner no. 2-victim with the allegation that he is a resident of Muleempur Kalan, Police Station Khairighat, District Bahraich. Relative of the accused, namely, Kallu Sonkar lives in the village. The complainant has social relations with Kallu Sonkar and he used to visit his house.

On 23/24 March, 2018 night, Bihari Sonkar s/o Ram Surat Sonkar-petitioner no. 1, Vinod, Kamta Devi, Ram Surat (the other petitioners), residents of Niviya Shahpur, Police Station Kotwali Nanpara, District Bahraich, induced daughter of the complainant, namely, Pramila Devi, and took her away. Till the reporting of the matter, whereabouts of the daughter could not be traced, therefore the matter is being reported.

4. We have taken notice of the fact that the victim is petitioner no. 2, herself.

5. Per contra, case set up by the petitioners is that petitioners 1 and 2, both have attained age of majority. Petitioner no. 2, the victim is illiterate, aged about 18 years as mentioned in her Adhaar Card appended with the petition as Annexure 3. Petitioners 1 and 2 belong to the same caste. Respondent no. 4 has lodged the First Information Report only because he has not accepted the alliance of his daughter (petitioner no. 2), with petitioner no. 1 and wanted her to marry another person.

It is further the case of the petitioners that petitioner no. 2 willingly got married to petitioner no. 1 on 24th March, 2018 in Bahraich as per Hindu rites and rituals.

6. We have referred to Annexure 2 which are a few photographs indicating marriage ceremonies.

7. Counter affidavit has been filed on behalf of respondent no. 4 through counsel Shri Anfaas Ahmad, Advocate. In the affidavit, it has been stated that the Adhaar Card is a manufactured document. Date of birth of petitioner no. 2 is 12th October, 2004 as per transfer certificate issued by Principal, Primary School Muneempur, Block Shivpur, District Bahraich wherefrom she passed Class 5. Thus the victim was a minor on the date of incident, hence the offence has been committed.

It has been pointed out in the counter affidavit that statement of the victim was recorded under Section 164 Cr.P.C. Respondent no. 4, the father wanted to take custody of the victim. The Magistrate, however rejected the prayer.

8. Counter affidavit has also been filed on behalf of the Investigating Agency in which it has been stated that the victim appeared for recording of her statement under Section 164 Cr.P.C. on 10th August, 2018 in the court of Chief Judicial Magistrate, Bahraich. The victim did not support the prosecution case. The statement has been placed on record as Annexure SCA 1.

9. We have referred to the statement of the victim recorded under Section 164 Cr.P.C. in extenso. In the statement the victim, petitioner no. 2/the kidnappee/abductee has stated that she is 20-22 years of age. She knew Shyam Bihari, petitioner no. 1 since the last 2-5 years and liked him. Her father used to give her beatings and abuse her. On being fed up of his conduct, about four months before recording the statement, without telling anybody she left her house and went to the house of Shyam Bihari, petitioner no. 1.

It has further been stated by the victim that the fact that she was leaving her paternal house was not disclosed to Shyam Bihari, Kamta, Vinod or Ram Surat, the accused.

After she reached their house, all the four abovementioned persons/alleged accused tried to persuade her to go back to her paternal home. She, however did not agree and therefore stayed in their house for about 20 days. Thereafter of her own free will and accord got married to Shyam Bihari, petitioner no. 1 and wants to live with him.

10. The Investigating Agency has also placed on record Annexure SCA 2 which is ossification test report of petitioner no. 2/victim. Bone age of the petitioner no. 2/victim has been found to be 16 years. In such circumstances, it is being concluded that offence of kidnapping, abduction, rape and offence under Protection of Children from Sexual Offences Act has been committed.

11. Learned counsel for the prosecution has stated that other than the evidences brought on record, there is no other evidence that would be relevant for decision of the case. The said evidences be referred to for adjudication.

12. Considering peculiar facts and circumstances of the case, vide order dated 22nd January, 2019, we directed petitioner no. 2 and respondent no. 4 to remain present in Court.

The parties are present in Court as identified by their counsels.

13. We have questioned petitioner no. 2 at quite some length. It stands demonstrated that petitioner no. 2 has attained age of discretion. Petitioner no. 2 has clearly stated that she has been living in her matrimonial home for the last about 11 months. She is being maintained with due care, love, affection and respect. Petitioner no. 2 states that she would like to continue to stay in her matrimonial home, being married to petitioner no. 1.

14. In peculiar facts and circumstances of the case, we have referred to the pleadings, the stand taken by the parties in Court as also the evidences placed before us which have been referred to above.

15. We have heard learned counsel for the petitioners, learned counsel for respondent no. 4, Shri Anfaas Ahmad, and learned counsel for the State, Shri S.P. Singh.

We have gone through the documents placed on record. We have referred to the entire evidence placed before us for consideration, in peculiar facts of the case.

16. We have taken notice of the difference in age of the prosecutrix/kidnapee/abductee as per the Adhaar Card (18 years), as noticed above; the age determined through ossification test (16 years) and as per School Transfer Certificate (13 years approximately).

17. On the touchstone of the evidences noticed above, we are required to consider whether offence under Section 363 and Section 366 Indian Penal Code has been committed or not.

18. Ingredients of Section 363 Indian Penal Code are required to be considered in context of Section 359 and Section 361 Indian Penal Code. The said three provisions are extracted herebelow.

“359. Kidnapping.–Kidnapping is of two kinds: kidnapping from, and kidnapping from lawful guardianship.

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.

Explanation.–The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.–This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

363. Punishment for kidnapping.–Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

19. When the evidences that have already come on record are considered in context of the ingredients of Section 363 Indian Penal Code, we find that so as to establish commission of the offence, the prosecution is required to demonstrate from conclusive evidence that a minor girl has been taken or enticed out of the keeping of the lawful guardian of such minor, without the consent of the guardian.

There are thus two essential ingredients of Section 361 Indian Penal Code that are required to be proved by the prosecution to claim conviction of accused under Section 363 Indian Penal Code. The two ingredients are that the kidnapee should be a minor on the date of incident; and she should have been enticed or taken out of the keeping of her lawful guardian.

Statement of the prosecturix recorded under Section 164 Cr.P.C. clearly demonstrates that she had not been taken out of the keeping of her lawful guardian, rather she of her own volition and accord, walked out of her parental house and out of keeping of her lawful guardian; went to the house of Bihari Sonkar @ Satish; she was advised to go back to her parental house by the accused, however, she refused to heed the advice and after 20 days thereof, she got married to Bihari Sonkar @ Satish, which she states was of her own free will.

Surely, if the girl has gone to the house of the boy, as has been asserted by the victim in this case, the boy or his family members have no obligation in law to inform the parents/natural guardian of the girl.

20. In view of the statement of the victim, we have no hesitation in holding that ingredients of Section 363 Indian Penal Code are not satisfied. In this regard, we are supported by judgment rendered by Hon’ble Supreme Court of India in AIR 1965 SC 942, S. Varadarajan vs. State of Madras. In S. Varadarajan’s case, the following, relevant portion, has been held:-

“6. It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st. The other facts which have already been stated are also not disputed. A two-fold contention was, however, raised and that in the first place Savitri had abandoned the guardianship of her father and in the second place that the appellant in doing what he did, did not in fact take away Savitri out of the keeping of her lawful guardian.

7. ……It will thus be seen that taking or enticiting away a minor put of the keeping of a lawful guardian is am essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri.

…….In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord.

……There is no suggestion that the appellant took her to the Sub-Registrar’s office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri’s evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri’s own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit.

………She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father’s house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her.

…….. In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself: it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant’s wife and thus be in a position to be always with him.

9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

16. The other case is Rex v. James Jarvis [XX Cox’s Criminal Cases, 249] . There Jelf, J., has stated the law thus to the Jury:

“Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do — namely, tell her to return home — that fact is not by — itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him — or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner’s conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.”

In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of “not guilty”. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind.

19. As against this Mr Ranganadham Chetty appearing for the State has relied upon the decisions in Bisweswar Misra v. King [ILR 1949 Cuttack 194] and In re Khalandar Saheb [ILR 1955 Andhra, 290] . The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to “taking” within the meaning of Section 361.

20. We are satisfied, upon the material on record, that no offence under S. 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.

Appeal allowed.”

(emphasised by us)

We have taken notice of the fact that in S. Varadarajan’s case, the Hon’ble Supreme Court of India was dealing with the case of a minor/victim (below 18 years of age).

21. In the case in hand, the evidence referred to above, in particular the stand taken by the victim in the course of investigation; and thereafter in this Court by way of filing the petition for quashing as petitioner no. 2 and by appearing before us to reiterate that stand, we have no hesitation in holding that even though the victim was a minor on the date of incident yet offence under Section 363 Indian Penal Code read with Section 361 Indian Penal Code and Section 359 Indian Penal Code has not been committed. The second ingredient of Section 361 Indian Penal Code has not been proved. Demonstratively the victim went out of the keeping of her lawful guardian of her own will; and had not been taken or enticed by the accused. In the regard, our view is supported by judgment rendered by Hon’ble Supreme Court of India in S. Varadarajan’s case (supra), portion of which has been extracted above.

22. Although in the facts of this case as stated by the prosecutrix in her statement under Section 164 Cr.P.C. noticed in extenso above, the age would not be relevant or determining factor in regard commission of offence under Section 363 Indian Penal Code, however we have considered that factor also.

On the basis of interaction with petitioner no. 2, the victim, we are of the view that two years are required to be added to the bone age of the petitioner, in peculiar facts and circumstances of the case and in view of perception of the Court, as recorded above. In this regard, we are supported by judgments rendered by the Hon’ble Supreme Court of India in (2009) 6 Supreme Court Cases 681, Ram Suresh Singh Vs. Prabhat Singh Alias Chhotu Singh and Another, (1982) 2 Supreme Court Cases 538, Jaya Mala Vs. Home Secretary, Government of Jammu Kashmir and Others, (2011) 10 Supreme Court Cases 192, Mohd. Imran Khan Vs. State Government (NCT of Delhi), (2008) 15 Supreme Court Cases 223, Jyoti Prakash Rai Alias Jyoti Prakash Vs. State of Bihar.

23. In Ram Suresh Singh’ case (supra), the following has been held in Paragraph 13 (relevant portion):

“13. Even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible. In Jaya Mala v. Government of J and K, this Court held: (SCC p. 541, para 9)

“9…..However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.”

(emphasised by us)

24. In Jaya Mala’s case (supra), the following has been held in Paragraph 9 (relevant portion):

“9. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention; Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in October, 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.”

(emphasised by us)

25. In Mohd. Imran Khan’s case (supra), the following has been held in Paragraph 20 (relevant portion):

20. The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side. In Jaya Mala v. Government of J K, this Court held (SCC p. 541, para 9).

” 9….However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.” (See also: Ram Suresh Singh v. Prabhat Singh and State of U.P. v. Chhotey Lal).

(emphasised by us)

26. In Jyoti Prakash Rai Alias Jyoti Prakash’s case (supra), the following has been held in Paragraphs 14 to 16 :

14. In a case of this nature, thus, where the delinquent was examined by two different medical boards, who on two different dates have reached the identical opinion, viz, the age of the appellant between 18 and 19 years, and, thus, resulting in two different conclusions, a greater difficulty arises for the court to arrive at a correct decision. For the said purpose, the court may resort to some sort of hypothesis, as no premise is available on the basis whereof a definitive conclusion can be arrived at.

15. It is in the aforementioned situation, we are of the opinion that the test which may be applied herein would be to take the average of the age as opined by both the medical boards. Even applying that test, the age of the appellant as on 01.04.2001 would be above 18 years.

16. We, however, hasten to add that we have taken recourse to the said method only for the purpose of this case and we do not intend to lay down any general proposition of law in this behalf. As indicated hereinbefore, in so doing, we have also taken into consideration the fact that the appellant had filed documents in support of his claim that he was a juvenile but the same were found to be forged and fabricated which is itself a factor to show that he was making attempts to obtain a benefit to which he might not have been entitled to.”

(emphasised by us)

27. In view of the evidences that have come on record, as noticed above and the law as referred to and discussed above we have no hesitation in holding that ingredients of offence under Section 363 Indian Penal Code read with Section 359 and Section 361 Indian Penal Code are not satisfied. The victim herself through her statement recorded under Section 164 Cr.P.C. and by virtue of filing this petition in Court to seek quashing of the impugned First Information Report has made it evident that she had not been kidnapped within the meaning of Section 361 read with Section 363 Indian Penal Code.

28. So far as Section 366 Indian Penal Code is concerned, the ingredients of the said provision are required to be considered in conjunction with Section 362 Indian Penal Code. Section 362 Indian Penal Code and Section 366 Indian Penal Code read as under:-

“362. Abduction.–Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.–Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].”

29. The statement of the prosecutrix recorded under Section 164 Cr.P.C. itself demonstrates that petitioner no. 2 had not been compelled or deceived or even induced to go to the house of the accused and get married to him.

In view of the stand of the prosecutrix as recorded above, we have no hesitation in holding that ingredients of offence under Section 366 Indian Penal Code are not satisfied.

30. We have taken another circumstance into account, viz., the kidnappee/ abductee/victim has approached this Court as petitioner no. 2 to say that she is married to petitioner no. 1 and has not been kidnapped or abducted. In such circumstances, it would be a fallacy in law, or facts to rule that petitioner no. 2 had been kidnapped or abducted. It is evident that if the case is sent for trial it shall be an exercise in futility in so much as the victim/petitioner no. 2 shall not support the prosecution case. Without statement of the victim/kidnappee/abductee, conviction cannot be recorded, in facts and circumstances of the case. An already over burdened judicial system, shall be further burdened.

Likewise in view of the asserted fact that petitioner no. 2 is married to petitioner no. 1, offence of rape would not be attracted. The husband and wife are Hindus. Under Hindu Marriage Act, the marriage is merely voidable; and not void. The wife-petitioner no. 2 rather than repudiating the marriage has reasserted the factum of her marriage with petitioner no. 1, repeatedly.

In totality of facts and circumstances, even provisions of Protection of Children from Sexual Offences Act would not be attracted. It would be a fallacy in law to seek prosecution under Protection of Children from Sexual Offences Act, in view of the stand of the prosecutrix as noted above. Such prosecution would cause manifest injustice, even to the rights of the prosecutrix. This being a Court of equity is required to take a holistic view of the matter, and not a technical view. Strict theoretical and technical view is not to be taken in such cases, particularly by a court of equity. Overall facts and circumstances are required to be taken into account in the interests of substantial justice; and so as to avoid miscarriage of justice. The main aim and objective is to deliver substantial justice.

31. The facts and circumstances clearly show that respondent no. 4 having not accepted marriage of choice of his daughter, in abuse of process of the law and process of the Court has initiated impugned criminal proceedings. Surely, the accusations have been made de hors the facts which have come on record through the investigation process.

32. Having considered the facts and circumstances of the case, we are of the considered view that so as to secure the ends of justice, the impugned First Information Report is liable to be quashed. Substantial justice does not demand continuance of criminal proceedings. Prosecution of husband of the victim would destroy the married life of the victim.

In view of the discussion above, the legal question is answered in the negative.

33. For the reasons given above, the petition is allowed.

34. First Information Report No. 0072 of 2018, under Sections 363, 366 Indian Penal Code, Police Station Khairighat, District Bahraich and all consequent proceedings are hereby quashed.

35. Let a copy of this order be forwarded to Chief Judicial Magistrate, Bahraich and Station House Officer, Police Station Khairighat, District Bahraich.

Order Date :- 4.2.2019

VKS

 

 

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