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Madhuri Bandooni vs State (Nct Of Delhi) on 17 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5050/2018 and Crl.M.A.No.33438/2018
Reserved on : 12.03.2020
Date of Decision : 17.03.2020
IN THE MATTER OF:
MADHURI BANDOONI ….. Petitioner
Through; Mr.Mahesh Thakur and
Ms.Sheffali Chaudhary,
Advocates.
versus
STATE (NCT OF DELHI) and Ors. ….. Respondents
Through: Mr.Mukesh Kumar, APP for State
with SI Davender Kumar, P.S.
Chhawla, Delhi.
Mr.Anand Mishra, Adv. for R2
R3.

CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present petition has been filed impugning order dated
30.07.2018 passed by Addl. Sessions Judge in Crl. Revision No.42/2017
whereby the charge framed by the Trial Court against the present
petitioner under Section 363/374 IPC was modified to Section 368 read
with Section 363 IPC.

2. Briefly, the facts of the present case are that FIR bearing
No.111/2012 under Section 363 IPC, Police Station Chhawla came to be
registered on 25.05.2012 on the complaint of one Bablu Tiwari. In the
complaint, he stated that his daughter Somya Tiwari aged 15 years had

Crl.M.C. 5050/2018 Page 1 of 13
not returned back to her home after she had gone to check her class 10th
result at about 9 a.m. on 25.05.2012.

3. Later, on 08.07.2012, the complainant produced his daughter in the
Police Station. The statement of prosecutrix was recorded under Section
161 Cr.P.C. and her medical examination was also conducted.
Subsequently, on 10.07.2012, her statement was also recorded under
Section 164 Cr.P.C., wherein she stated as follows:-

“My name is Somya Tiwari. I study in Sarvodaya Kanya
Vidyalaya, Dharampura, Najafgarh, New Delhi. This
year itself, in the month of March, 2012, I had given my
10th class exams. On 25.05.2012, I had gone to check my
10th class results in cyber café nearby. I felt highly
disappointed after seeing my marks/percentage 6.8% as I
had done lots of hard work, I started feeling frightened to
go back home. Then in order to go to my aunts (maasi)
home I reached Uttam Nagar by bus. I did not know my
aunts (maasi) home from there and while roaming like
this I reached a market and sat outside a doctor’s clinic.
The name of that clinic as Mehta nursing home. After
sometime an old lady aged about 60 years came out of
that clinic and started talking to me. When I told her
everything she asked me not to fear and not to go back
home and she will send me at such place where no one
will scold me. She said you will get to study as well as
money there. The name of that lady was V.Mehta. I went
with that lady at her home and lived there for 4-5 days.
That lady was a doctor. After 4-5 days she sent me to a
lady named Madhuri, to work. I don’t know that place but
that lady Madhuri lived in a flat in Lajwanti Apartment. I
was told that I will have to do household work for which I
will get Rs.4000/- per month. I worked in that home for
20-22 days thereafter Madhuri sent me to her mother’s
house which is in ‘A’ Block, Shyam Vihar, Najafgarj.
There I worked for about 10 days and one day finding
opportunity without informing anybody I came back

Crl.M.C. 5050/2018 Page 2 of 13
home. Nothing wrong has happened with me and I don’t
have anything further to say….”

4. The statement of the prosecutrix recorded under Section 164
Cr.P.C. was on the same lines as her statement under Section 161 Cr.P.C.

5. Learned counsel for the petitioner contended that neither the
ingredients of the offence under Section 363 IPC nor for the offence
under Section 368 IPC are made out against the present petitioner. It was
contended that the offence under Section 363 IPC is not a continuing
offence. In support, he has placed reliance on the decision in S.K.Yusuf
v. State reported as 1988 SCC OnLine Cal 41 and Sau. Banu Ram
Chandra Borgaonkar v. State of Maharashtra reported as 2015 SCC
OnLine Bom 6380. So far as the offence under Section 368 IPC is
concerned, it was contended that it has not been shown that the petitioner
had the requisite knowledge of the prosecutrix being kidnapped. In
support, he has placed reliance on the decision in Brahm Dutt v. State of
Punjab reported as 1999 SCC OnLine PH 566.

6. Although learned APP for the state has opposed the petition but
learned counsel for the complainant and the prosecutrix (impleaded as
Respondent No. 2 3) have supported the petition. Infact, written
replies duly supported by the respective affidavits of the complainant as
well as the prosecutrix (now aged 22 years) have also been placed on
record in support of the petition.

7. In the reply filed by the prosecutrix, it has been stated that while
she was sitting outside the clinic of the co-accused, it was the co-accused
who talked to her and took the prosecutrix to her home where she stayed

Crl.M.C. 5050/2018 Page 3 of 13
for 4-5 days. Thereafter, she went to the house of the petitioner, who was
pregnant at that time. She was treated well at the petitioner’s house. The
petitioner looked after her and was even prepared to support her
financially for her education. She stayed at the petitioner’s house for
about 20-22 days and helped the petitioner in household activities. The
petitioner moved to her mother’s house in A Block, Shyam Vihar,
Najafgarh, as she needed constant care and attention due to her
pregnancy. The prosecutrix also went with her. Co-incidentally, the
house of the petitioner’s mother was in the same locality where the house
of the prosecutrix was located. The prosecutrix went back to her own
house at the insistence of the petitioner. It has been further stated in the
replies that both the complainant and his daughter have no objection for
quashing of the FIR against the present petitioner.

8. I have heard learned counsels for the parties and have also gone
through the case records.

9. The principles to be considered for proper exercise of jurisdiction
under Section 482 CrPC or 397 Cr.P.C. and the criteria for quashing a
charge were culled out by the Supreme Court in Amit Kapoor Vs.
Ramesh Chader and Others reported as 2012 (9) SCC 460. The relevant
paragraphs of the judgment are extracted hereunder:

“27. Having discussed the scope of jurisdiction under
these two provisions i.e. Section 397 and Section 482 of
the Code and the fine line of jurisdictional distinction,
now it will be appropriate for us to enlist the principles
with reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of

Crl.M.C. 5050/2018 Page 4 of 13
the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section
397 or Section 482 of the Code or together, as the case
may be:

27.1. Though there are no limits of the powers of the
Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the
rarest of rare cases.

27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.

xxx xxx xxx
27.15. Coupled with any or all of the above, where the
Court finds that it would amount to abuse of process of
the Code or that the interest of justice favours, otherwise
it may quash the charge. The power is to be exercised ex
debito justitiae i.e. to do real and substantial justice for
administration of which alone, the courts exist.

(emphasis added)

10. The FIR in the present case was initially registered under Section
363 IPC on the basis of a missing report lodged by the complainant.
Section 363 IPC provides for the punishment in an offence of
kidnapping. The prosecutrix at the time of the incident was aged about 15

Crl.M.C. 5050/2018 Page 5 of 13
years. The offence of kidnapping from lawful guardianship has been
defined in Section 361 IPC and it reads as follows:-

“361. Kidnapping from lawful guardianship.–Whoever
takes or entices any minor under 2 [sixteen] years of age
if a male, or under 3 [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.”

11. To commit an offence under Section 361 IPC, it has to be
necessarily shown that, a person has “taken” or “enticed” a minor out of
the keeping of the lawful guardian of such minor. A female is considered
a minor, if she is under eighteen years of age.

12. The Shorter Oxford English Dictionary (Fifth Edition) defines the
word “entice” as follows:

“(i) Incite (to a course of action); provoke (to anger etc.).

(ii) Persuade or attract by the offer of pleasure or
advantage.”

13. The Black’s Law Dictionary (Eighth Edition) defines the verb
“entice” as follows:-

Crl.M.C. 5050/2018 Page 6 of 13

“To lure or endure; esp., to wrongfully solicit (a person)
to do something.”

14. The Shorter Oxford English Dictionary (Fifth Edition) defines the
word “takes” as follows:

“The action or process, or an act, of taking”

15. The distinction between the word ‘taking’ or ‘enticing’ on one
hand and the word ‘detaining’ on the other hand, came to be highlighted
in one of the earliest decisions with respect to an offence of kidnapping
in a Full Bench Reference in Nemai Chattoraj v. The Empress reported
as 1900 SCC OnLine Cal 119, where the then Chief Justice Maclean
noted the distinction as follows:-

“The question, in each case, must be whether the accused
did or did not actually take or entice the boy or girl, as
the case may be, out of the keeping of the lawful guardian
without his consent. The question is one of fact, and must
in each case be decided upon the particular evidence of
each particular case. The section says “taking” or
“enticing” it does not say a word about “detaining” out
of the keeping of the guardian, and when the legislature
means “detaining” it says so, as in sec. 498. Upon the
facts found in the reference, I do not see how the accused
can be said to have taken or enticed the girl out of the
keeping of her guardian; the act of taking was completed
when the girl was actually taken out of the keeping of her
guardian, and in this apparently, the accused had no
part. He had nothing to do with the matter until three
weeks later. The act of taking is not, in the proper sense
of the term, a continuous act: when once the boy or girl
has been actually taken out of the keeping, the act is a
completed one. If continuous, it would be difficult to say
when the continuous taking ceased: it could only be when
the boy or girl was actually restored to the keeping of the
guardian. But this would constitute not the act of
“taking,” but an act of “detaining.”

Crl.M.C. 5050/2018 Page 7 of 13

16. The word “taking” fell for consideration before the Supreme Court
in the case of S. Varadarajan v. State of Madras, reported as AIR 1965
SC 942 where the allegation against the accused was that he had taken
the victim out of the keeping of her lawful guardian. While drawing the
distinction between the word ‘taking’ and ‘merely permitting the victim
to accompany’ in the context of the offence of kidnapping, it was held as
under:-

“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 circumstance
can the two be regarded as meaning the same thing for
the purposes of s. 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.

10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played
by the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our opinion if evidence
to establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house
or a house where her guardian had kept her, joined the
accused and the accused helped her in her design not to

Crl.M.C. 5050/2018 Page 8 of 13
return to her guardian’s house by taking her along with
him from place to place. No doubt, the part played by the
accused could be regarded as facilitating the fulfillment
of the intention of the girl. That part, in our opinion, falls
short of an inducement to the minor to slip out of the
keeping of her lawful guardian and is, therefore, not
tantamount to “taking”.

xxx xxx xxx

26. After pointing out that there is an essential distinction
between the words “taking” and “enticing” it was no
doubt observed that the mental attitude of the minor is not
of relevance in the case of taking and that the word
“take” means to cause to go, to escort or to get into
possession. But these observations have to be understood
in the context of the facts found in that case. For, it had
been found that the minor girl whom the accused was
charged with having kidnapped had been persuaded by
the accused when she had gone out of her house for
answering the call of nature, to go along with him and
was taken by him to another village and kept in his
uncle’s house until she was restored back to her father by
the uncle later. Thus, here there was an element of
persuasion by the accused person which brought about
the willingness of the girl and this makes all the
difference. In our opinion, therefore, neither of these
decisions is of assistance to the State.”

17. The position was again reiterated by the Supreme Court in
Parkash vs. State of Haryana reported as (2004) 1 SCC 339, where the
following observations in its earlier decision in Thakorlal D. Vadgdama
v. The State of Gujarat reported as (1973) 2 SCC 413 were quoted with
approval:

“The expression used in Section 361, I.P.C. is “whoever
takes or entices any minor”. The word “takes” does not
necessarily connote taking by force and it is not confined
only to use of force, actual or constructive. This word
merely means, “to cause to go,” “to escort” or “to get into

Crl.M.C. 5050/2018 Page 9 of 13
possession”. No doubt it does mean physical taking, but
not necessarily by use of force or fraud. The word
“entice” seems to involve the idea of inducement or
allurement by giving rise to hope or desire in the other.
This can take many forms, difficult to visualise and
describe exhaustively; some of them may be quite subtle,
depending for their success on the mental state of the
person at the time when the inducement is intended to
operate. This may work immediately or it may create
continuous and gradual but imperceptible impression
culminating after some time, in achieving its ultimate
purposes of successful inducement. The two words
“takes” and “entices”, as used in Section 361, I.P.C. are
in our opinion, intended to be read together so that each
takes to some extent its colour and content from the other.
The statutory language suggests that if the minor leaves
her parental home completely uninfluenced by any
promise, offer or inducement emanating from the guilty
party, then the latter cannot be considered to have
committed the offence as defined in Section 361, I.P.C.”

18. As per the prosecution case, it was stated by the prosecutrix in her
statement recorded during investigation that she left her house on
25.05.2012 to check her 10th class results at a nearby cyber café. She was
disappointed with her marks and felt frightened to go back to her home.
She took a bus to reach her aunt’s home however, not knowing the
address, she roamed in the market and sat outside a doctor’s clinic which
happened to be the clinic of the co-accused, Dr. Vidhya Mehta. It was
the co-accused, who spotted the prosecutrix outside her clinic and talked
to her. The co-accused told her that she would be sent to a place where
she could get to study as well as earn some money. The prosecutrix
stayed with the co-accused for 4-5 days where after she was sent to the
house of the present petitioner. The prosecutrix stayed at the house of the
petitioner for about 20-22 days and thereafter the petitioner went to her

Crl.M.C. 5050/2018 Page 10 of 13
mother’s house along with the prosecutrix. It has come in the statement
of the prosecutrix that as this house happened to be in the same locality
as her own house, she left and reached her house.

19. From above, it is apparent that the petitioner neither ‘took’ nor
‘enticed’ the prosecutrix out of the keeping of her lawful guardian in as
much as the petitioner did not induce or persuade the prosecutrix to go
along with her. The prosecutrix had initially left her home voluntarily
and then stayed with the co-accused for 4-5 days. The prosecutrix came
in touch with the petitioner at the instance of the co-accused. There is no
mentioning of any soliciting, persuasion or use of force at the instance of
the petitioner. As such, I have no hesitation to hold that in the present
case, the basic ingredients of the offence punishable under Section 363
IPC are not made out.

20. Coming to the next contention of the learned counsel for the
petitioner that from a bare reading of the charge sheet, the ingredients of
the offence punishable under Section 368 IPC are also not made out, I
deem it appropriate to reproduce Section 368 IPC as under:

“368. Wrongfully concealing or keeping in
confinement, kidnapped or abducted person.–
Whoever, knowing that any person has been kidnapped or
has been abducted, wrongfully conceals or confines such
person, shall be punished in the same manner as if he had
kidnapped or abducted such person with the same
intention or knowledge, or for the same purpose as that
with or for which he conceals or detains such person in
confinement”

21. A bare reading of the Section would show that before a person is
wrongfully concealed or confined by the accused, it is essential that the
accused must have the ‘knowledge’ that such a person had been

Crl.M.C. 5050/2018 Page 11 of 13
kidnapped. In order to constitute an offence under Section 368 IPC, it
was obligatory on the part of the prosecution to establish the following
facts:

“(i) the person in question had been kidnapped.

(ii) accused knew that such person had been kidnapped.

(iii)accused having such knowledge, wrongfully
concealed or confined the person concerned.”

[Refer: Brahm Dutt (supra)]

22. Again, in Puran Singh Ors. v. State of Bihar reported as JT
2001 (8) SC 647, while acquitting the accused for the offence punishable
under section 368 IPC, the Supreme Court held as under:

“4. The sine qua non for attracting provisions of Section
368, Indian Penal Code is that a person who either
wrongfully conceals or confines the victim, must have the
knowledge that, the victim had been kidnapped or had
been abducted and on proof of that, the accused can be
punished in the same manner as if he had kidnapped or
abducted the victim with the same intention or
knowledge, or for the same purpose as that with which he
concealed or detained the victim..”

23. To the similar extent are the decisions of the Supreme Court in Smt.
Saroj Kumari v. The State of U.P. reported as (1973) 3 SCC 669 and Om
Prakash vs. State of Haryana reported as (2011) 14 SCC 309.

24. A perusal of the material placed on record reveals that none of the
statements of the prosecutrix recorded during investigation indicate that
she was induced by the petitioner to go with her or to stay in her home.
There are no allegations that the prosecutrix was either illegally confined
or concealed or that the petitioner had knowledge of the fact that the
prosecutrix was a kidnapped person. Further, the replies filed by the

Crl.M.C. 5050/2018 Page 12 of 13
complainant and the prosecutrix, in support of the present petition, also
completely exonerate the petitioner.

25. On the basis of the above discussion, this court is of the view that
none of the charges framed against the present petitioner are sustainable.
The same are quashed.

26. Resultantly, the present petition is allowed.

27. A copy of this judgment be communicated to the trial court.

(MANOJ KUMAR OHRI)
JUDGE
MARCH 17, 2020
‘dc’

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