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Vikki Alias Vishal Koshariya vs The State Of Madhya Pradesh on 14 January, 2019

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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

M.Cr.C.No.30345/2018

Vikki alias Vishal Koshariya……………… Petitioner

Versus
State of Madhya Pradesh and another… Respondent

For the petitioner :Mr.Sanjay Agrawal, Advocate

For the respondent:Ms.Seema Jaiswal, Panel Lawyer
No.1

For the respondent:Mr.Arpan Shrivastava, Advocate
No.2

Present : Hon’ble Mrs.Justice Anjuli Palo
—————————————————————————
ORDER

[14/01/2019]

This petition has been filed for quashing of the
charge-sheet filed under section 363 read with section 366
of the Indian Penal Code by the Police Station, Piplani
against the petitioner.

2. The respondent No.2 lodged a complaint on
29.09.2016 at Police Station, Piplani, Bhopal for that some
unknown person had kidnapped his daughter, namely,
Munmun who is a student of Millennium College at Bhopal.
During the investigation the Police received affidavits of
Munmun and the petitioner, which were sworn on
30.9.2016, wherefrom it is reflected that Munmun had
married with the petitioner and she would stay with him
throughout his life. On 30.9.2016, she was minor and
hence Police filed charge-sheet against the petitioner
under sections 363 366 of the Indian Penal Code before
the Court.

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3. In compliance of order dated 17.12.2018 the
petitioner alongwith Munmun is persent in person before
the Court. Respondent No.2-Radha Mohan Patnaik is also
present in person.

4. Learned counsel for the petitioner submits that in the
present case the ingredients of offences punishable under
sections 363 and 366 of the Indian Penal Code are
missing against the petitioner. He drew attention of this
Court on the First Information Report (Annexure-P-15), in
which, there is no allegation against the present petitioner.
In the statements recorded by the Police under section
161 of the Code of Criminal Procedure, the respondent
No.2 has not stated anything against the petitioner.
Munmun also gave statement which shows that she was
willing to marry with the petitioner. Hence, after leaving
her hostel, she went to the petitioner. At that point of time
the petitioner told Munmun as she is a minor, he is not
ready to marry her. Thereafter, Munmun resided at several
other places and earned her livelihood by working as
maid. The documents brought on record as Annexures-
P-6, P-7 P-8 reflect that after attaining majority, the
petitioner and Munmun got married at Arya Samaj Temple
in Raipur. Learned counsel for the petitioner has placed
reliance on the decisions in the cases of S.Vardarajan vs.
State of Madras , AIR 1965 SC 942, Parul @ Divakar
Yadav and 2 others vs. State of U.P. and others , 2015
SCC Online All 7490 and Dileep Sharma and others vs.
State of U.P. and others , 2015 SCC Online All 7951.

5. Learned counsel for the respondents strongly
opposed the contentions of the petitioner and submitted
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that when affidavits were filed by the petitioner and
Munmun, at that point of time, Munmun was a minor.

6. On the basis of aforesaid documents, in Writ Petition
No.8575/2017, being habeas corpus petition, the
Coordinate Bench of this Court vide order dated 19.2.2018
found that Munmun as well as petitioner in the present
case are major and are free to take their own decision.
Munmun informed the Court that she is willing to go with
her husband, and accordingly, the habeas corpus petition
was dismissed.

7. The birth certificate of Munmun (Annexure-P1) shows
that her date of birth is 12.8.1999. The same is also
mentioned in her Primary School Certificate and Middle
School Certificate (Annexures-P-4). Arya Samaj Temple
also issued a marriage certificate in favour of petitioner
and Munmun. Prima facie it appears that the petitioner
performed marriage after attaining the majority. Not only
before the Coordinate Bench, but also before this Court
she is not willing to reside with her parents. She is wife of
the petitioner and presently is in family way and is an
expectant mother. This Court finds that on the date of
affidavit i.e. 30.9.2018 Munmun was 18 years 1 month
14 days. Her marriage was performed when she attained
majority.

8. In the case of S.Varadarajan (supra) , the Hon’ble
Apex Court in paragraphs 9 10 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
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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.

9. 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
return to her guardian’s house by taking her alongwith 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 apart, 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”.

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10. In the light of above discussion, it can easily be
pointed out that in the present case no active part or role
has been played by the accused. May be, at earlier stage,
he had met with the girl or persuaded her for marriage, but
there is lacuna in the prosecutrix case to establish that the
petitioner is guilty of taking the minor out of keep from her
guardian of her father.

11. In the case of Dileep Sharma (supra) the Division
Bench of Allahabad High Court has referred to another
decision of Allahabad High Court in the case of Shaheen
Parveen vs. State of U.P. [Writ Petition No.3519 (M/B) of
2015] wherein in paragraphs 7 to 9 16 it has been held
as under:-

“7. Section 363 of the Indian Penal Code
inheres that whoever kidnaps any person from
lawful guardianship shall be punished in terms
of sentence provided in the provision.

8. “Kidnapping from lawful guardianship” has
been defined under section 361 of the Indian
Penal Code. The provision when extracted
reads as under:-

“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 or 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
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entrusted with the care or custody or 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.”

9. Section 366 of the Indian Penal Code
inheres that 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, shall be
punished with a sentence, as provided in the
provision.

16. If the statement of the prosecutrix, above
noted, is taken into account, it becomes
evident that ingredients of the offence under
sections 363/366 of the Indian Penal Code in
regard to coercion, kidnapping or abduction
allegedly committed by Sarfaraj, are not
satisfied. The provisions of section 363 of the
Indian Penal Code are required to be
considered in context of provisions of section
361 of the Indian Penal Code. So as to satisfy
the ingredients of section 361 of the Indian
Penal Code, it has to be established by the
prosecuting agency that the accused/Sarfaraj
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took or enticed the prosecutrix out of the
keeping of the lawful guardian of the
prosecutrix, without the consent of the
guardian/respondent no.4. In the case at
hand, it is the case of the prosecutrix herself
that she of her free will went with Sarfaraj,
lived with him, wants to live with him and is
expecting his child. Element of coercion and
enticement by Sarfaraj is absent, although
consent of the guardian had not been taken.”

12. Similarly, in the case of Parul @ Divakar Yadav
(supra) the Division Bench of Allahabad High Court
observed in paragraphs 22 to 24 as under:-

“22. If a minor, of her own, abandons the
guardianship of her parents and joins a boy
without any role having been played by the
boy in her abandoning the guardianship of her
parents and without her having been
subjected to any kind of pressure,
inducement, etc. and without any offer or
promise from the accused, no offence
punishable under section 363 I.P.C. will be
made out when the girl is aged more than 17
years and is mature enough to understand
what she is doing. Of course, if the accused
induces or allures the girl and that influences
the minor in leaving her guardian’s custody
and the keeping and going with the accused,
then it would be difficult for the Court to
accept that minor had voluntarily come to the
accused. In case the victim/prosecutrix
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willingly, of her own accord, accompanies the
boy, the law does not cast a duty on the boy
of taking her back to her father’s house or
even of telling her not to accompany him.

23. A girl who has attained the age of
discretion and was on the verge of attaining
majority and is capable of knowing what was
good and what was bad for her, cannot be
said to be a victim of inducement, particularly
when the case of the victim/girl herself is that
it was on her initiative and on account of her
voluntary act that she had gone with the boy
and got married to him. In such
circumstances, desire of the girl/victim is
required to be seen. Ingredients of section
361 I.P.C. are required to be considered
accordingly, and not in mechanical or
technical interpretation.

24. Ingredients of section 361 I.P.C. cannot
be said to be satisfied in a case where the
minor having attained age of discretion,
allegedly to have been taken by the accused
person, left her guardian’s protection
knowingly (having capacity to know the full
import of what she was doing) and voluntarily
joins the person. In such a case, it cannot be
said that the victim had been taken away from
the keeping of her lawful guardian.”

13. For the above mentioned reasons in the case of
Parul @ Divakar (supra), the Court quashed the FIR,
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lodged as Case Crime No.609/2015 under Sections 363,
366, 504, 506 I.P.C. and section 8 of the Protection of
Children from Sexual Offences Act.

14. The facts of the present case are similar. At the time
of lodging of the report by the respondent No.2, he was
not aware as to whether his daughter had went on her
own. The name of the petitioner is also not mentioned in
the FIR. There is no evidence available on record that the
petitioner had either taken away Munmun or compelled her
to leave the guardianship of her parents. There is also no
evidence that after leaving her parental home, Munmun
had resided with the petitioner. After going through the
above discussion, this court has come to the conclusion
that no case for offences under sections 363 366 of the
Indian Penal Code is made out against the petitioner.
Hence, he is liable to be discharged. Accordingly, the
charge-sheet filed against the petitioner is quashed. The
petitioner is hereby discharged from the aforesaid offences
u/s 363 366 of I.P.C.

15. In the result, the petition is allowed.

(Smt.Anjuli Palo)
Judge
RM

Digitally signed by
RAJESH T MAMTANI
Date: 2019.01.16
17:35:51 +05’30’
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M.Cr.C.No.30345/2018

20.12.2018

Mr.Sanjay Agrawal, learned counsel for the petitioner.
Ms.Seema Jaiswal, learned Panel Lawyer for the respondent No.1/State.
Mr.Arpan Shrivastava, learned counsel for the respondent No.2.
Arguments heard.

The case is reserved for delivery of orders.

(Smt.Anjuli Palo)
Judge

RM

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