IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 Crl.MC.No. 4748 of 2010() ------------------------- AGAINST THE JUDGEMENT/ORDER IN WPCR.322/2010 Dated 19/10/2010 .................... PETITIONERS/ACCUSED ---------------------- 1. P.SANDEEP, S/O. RAJAGOPALAN, PULLARAMBIL, KOORACHIPADI.P.O., EDAPALAM, VILAYOOR PALAKKAD DISTRICT. 2. RAJAGOPALAN, PULLARAMBIL, KOORACHIPADI.P.O., EDAPALAM, VILAYOOR, PALAKKAD DISTRICT. 3. VASANTHA, W/O. RAJAGOPALAN, PULLARAMBIL, KOORACHIPADI.P.O., EDAPALAM, VILAYOOR, PALAKKAD DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENTS/STATE & COMPLAINANT ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHERPULASSERY POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. T.P. BALASUNDARAN, S/O. GOVINDAN NAIR (LATE) KULAKKALLUR.P.O.,PALAKKAD DISTRICT-679503. PUBLIC PROSECUTOR : ADV SMT M K PUSHPALATHA SRI.T.RAMPRASAD UNNI FOR R2 SMT.SMITHA GEORGE FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4748 of 2010 --------------------------------------- Dated this 21st day of March, 2011 ORDER Petitioners are accused in Crime No.524 of 2010 of Cherupulassery Police Station for offences punishable under Secs.365, 109 and Sec.188 r/w Sec.34 of the Indian Penal Code (for short, "the IPC”). Petitioners request this Court to quash proceeding against them on the grounds that allegations made against them do not make make out offences alleged and that the dispute is settled between the parties before the Division Bench of this Court which considered W.P(Crl).No.322 of 2010. I have heard learned counsel for petitioners, second respondent/de facto complainant and the learned Public Prosecutor. Learned counsel for second respondent submitted that second respondent has given in writing that he has no objection in allowing this criminal miscellaneous case. Learned counsel submitted that a statement to that effect will be filed and the letter also would be produced in this Court. Learned Public Prosecutor after getting instruction submitted that the parties have settled the dispute. It is seen from Annexure-C, judgment of this Court dated 19.10.2010 in W.P(Crl).No.322 of 2010 that the matter was settled between the Crl.M.C.No.4748 of 2010 -: 2 :- parties. It is revealed that though subsequently the first petitioner married the daughter of the second petitioner and they are living together as husband and wife. In paragraph 7(c) of Annexure-C, judgment the Division Bench recorded the submission of the second respondent and the mother of the girl that they have no grievance or complaint against petitioners “now and they shall not press any allegations against them”. 2. Case is that on 13.10.2010 at about 9a.m first petitioner (petitioner 2 and 3 are the parents of first petitioner) took the daughter of de facto complainant from Salem in violation of the order passed by this Court in W.P(Crl).No.322 of 2010 and thereby committed offences as above stated. Case was registered on 13.10.2010. 3. So far as offence under Sec.188 of the IPC is concerned, it involves disobedience to an order duly promulgated by a public servant. This Court in Joseph George Vs. State of Kerala (2000(3) KLT 275) has held that Sec.188 of the IPC contemplates an order made by public functionaries for public purposes. The order passed by this court in W.P(Crl).No.322 of 2010 cannot be said to be one passed for public purpose. Moreover, there is also statutory interdict in the police Crl.M.C.No.4748 of 2010 -: 3 :- registering a case for offence under Sec.188 of the IPC in view of Sec.195(1)(a)(i) of the Code of Criminal Procedure (for short, "the Code”) which says that no Court shall take cognizance of any offence punishable under Secs.172 to 188 (both inclusive) of the IPC except on the complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate. That being the position the police could not have register a case for offence under Sec.188 of the IPC. 4. So far as offence under Sec.365 is concerned that penalises kidnapping or abducting with intend to secretly or wrongfully to confine a person. Sec.361 of the IPC deals with kidnapping from lawful guardianship and it involves “taking” or “enticing” of the minor under 16 years of age if a male or under 18 years if a female. The word 'take' involves an element of force while the word 'entice' involves some inducement. According to the first petitioner, he was in love with the daughter of second respondent and she voluntarily went with the first petitioner. Annexure-B, statement of second respondent recorded by the police would show that first petitioner and the daughter of second respondent were in love and that there was also an offer by the second respondent and others that they will give the girl in Crl.M.C.No.4748 of 2010 -: 4 :- marriage to the first petitioner after she attained majority. In such situation, it is difficult to think that first petitioner had kidnapped the daughter of second respondent. It is not the law that in such situation the first petitioner was bound to return the girl to her lawful guardian. In such situation it could not be said that offence of kidnapping is made out. 5. Having regard to these circumstances and also taking into account the fact that the matter is settled between the parties I am inclined to think that continuance of the proceeding is not necessary. Resultantly this criminal miscellaneous case is allowed. FIR in Crime No.524 of 2010 of Cherupulassery Police Station and all proceeding taken pursuant thereto against petitioners will stand quashed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge