Criminal Misc. No. M-20090 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-20090 of 2011 (O&M) Date of Decision : 19.8.2011. Kapil Kumar & others ...... Petitioners Versus State of Haryana & others ...... Respondents CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Arun Takhi, Advocate, for the petitioners. Mr. Satyavir Yadav, DAG, Haryana. NAWAB SINGH J. This petition under Section 482 of the Code of Criminal Procedure has been filed seeking quashing of First Information Report No. 196 dated May 24th, 2011 under Sections 363 and 366 of Indian Penal Code registered in Police Station Indri, District Karnal. 2. On the statement of Jagpal-respondent No.2 aforesaid FIR was registered against the petitioners. It was alleged that On May 10th, 2011 Kapil-petitioner No.1 enticed away Sandeepa, aged 16 years and 10 months, daughter of the complainant, with the intention to marry her. 3. Learned counsel for the petitioners has urged that Sandeepa-respondent No.3 and petitioner No.1 were in love with each other. On May 10th, 2011 they married against the wishes of their parents. In this regard, reliance has been placed on Marriage Certificate (Annexure P-1). Further, apprehending danger to their lives, the couple moved this Court seeking Police protection. This Court by order dated May 18th, 2011 (Annexure P-4) directed the Senior Superintendent of Police, U.T., Chandigarh to look into their representation and proceed further in accordance with law. More so, at present the couple is residing together and leading a happy Criminal Misc. No. M-20090 of 2011 (O&M) 2 married life. Thus, it has been argued that in view of the aforesaid facts and circumstances, no offence whatsoever under Section 363 or 366 of Indian Penal Code is made out against the petitioners. 4. The essence of offence under Sections 363 or 366 IPC lies in the “taking” or “enticing” away of a minor under the ages specified in the Section out of the keeping of the lawful guardian without the consent of such guardian. The words “takes or entices any minor .....out of the keeping of the lawful guardian of such minor” in Section 361 IPC which defines kidnapping are significant. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section. 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 IPC. But if the guilty party has laid a foundation by inducement, allurement or threat etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian’s custody or keeping and going to the guilty party then prima-facie it would be an offence under Section 363 IPC. There is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous. If the minor leaves her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person then in such a case, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in such a case 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 guardian. 5. In the case in hand, there is not a word in the FIR from which an inference could be drawn that Sandeepa left the house of her father at the instance of the petitioner. In fact, in her affidavit (Annexure P-6), she candidly admits that on May 10th, 2011 she herself left the company of her father. The petitioner by Criminal Misc. No. M-20090 of 2011 (O&M) 3 complying with her wishes can, by no stretch of imagination, be said to have taken her out of the keeping of her lawful guardian. 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 is not a child of tender years who was unable to think for herself and her well being. She is on the verge of attaining the age of seventeen years and is capable of knowing what is good and what is bad for her. The fact of her leaving her house willingly is obvious from her act of remaining with the petitioner from May 10th, 2011 till today, that is to say that she has been residing with the petitioner No.1 for the last four months and even she has married with the petitioner. Both of them are living happily as husband and wife. She along with her husband filed a petition under Section 482 Cr.P.C for protection of her life from her parents. All these acts on the part of Sandeepa inevitably show that she left her house of her own free will without any allurement and joined the company of petitioner No.1 on her own. Hence, the necessary ingredient of “taking” or “enticing” away is missing and the registration of FIR against the petitioners is nothing but abuse of process of law. 6. In view of above, the petition is allowed, FIR No. 196 dated May 24th, 2011 under Sections 363 and 366 IPC registered in Police Station Indri, District Karnal and subsequent proceedings arising therefrom are hereby quashed. (NAWAB SINGH) JUDGE 19.8.2011. SN Whether refer to reporter: Yes/No