Kuldeep vs State Of Rajasthan

Arun Monga, J

Vide a short order of even date, the petition herein was allowed in open court today morning after hearing the arguments. Reasons thereof and other details are being recorded herein vide the instant separate order. Assailed is an FIR No.0040/2020 dated 16/02/2020 lodged at Police Station Tibbi, District Hanumangarh for alleged offences under Sections 458, 365, 363 and 323 IPC as well as further proceedings pending in Sessions Case No.36/2020 before the learned Special Court, POCSO Act Cases, Hanumangarh.

Relevant facts from the petition first. Respondent No.2 (father) alleged that on 15/02/2020, at about 03:00 AM, he suddenly woke up hearing his daughter's scream. He saw that accused Kuldeep was attempting to kidnap her. As he got up to stop him, Kuldeep assaulted him and abducted his daughter. On the basis of this report, an FIR under aforesaid penal pro provisions was registered. During the investigation, the Police traced the girl and apprehended the petitioner. The girl being few months short of 18 years, was since minor, penal provisions of POCSO Act were also invoked later on.

2.1. In the charge-sheet, it is stated that victim/respondent No.3, in her statement dated 26.02.2020, recorded under Section 161 Cr.P.C., followed by statement dated 03.03.2020, under section 164, ibid, mentioned about the establishment of physical relationship with petitioner on multiple occasions. Based on the said statement, offences under Sections 366 and 376 IPC, and under Section 5L/6 of the POCSO Act were found to be made out against the petitioner, while the offence under Section 365 Cr.P.C. was not found to have been committed. Thus a charge-sheet dated 27/04/2020 under Sections 458, 363, 366, 323 and 376 IPC and Section 5L/6 of the POCSO Act, 2012 was filed against the accused-petitioner.

2.2. The petitioner was released on bail vide an order dated 30/05/2020 by the learned trial court. In course of the trial, the girl/prosecutrix attained the age of majority. She then exercised her right to choose her partner out of her free will and solemnized marriage with the petitioner on 21/12/2021. Ever since, they are living together as husband and wife. The young wife/prosectrix is currently stated to be in her family way and due to deliver a child from the wedlock.

2.3. On the other hand criminal proceedings are continuing as before. Learned trial court framed charges against the petitioner and trial is underway. Statements of complainant and victim as well as other witnesses have been already recorded. The matter is now slated for recording of the statement of accused.

Learned counsel for the petitioner would contend that petitioner and respondent No.3 have been happily married for last 2 and a half years. He relies on a marriage certificate dated 13/12/2022. While placing on record the pregnancy report, he submits that respondent No.3 is six weeks’ pregnant. He further contends that the respondent No.3 has filed affidavit before the learned court below stating therein that she gave her earlier statements under section 161/164 of Cr.P.C. on dotted lines as per the wishes of her family members. At the relevant time, they did not approve of her intent of marrying the petitioner. Now the entire family approves of her marriage with the petitioner. Being a minor, she had no choice but to succumb to their pressure tactics. Otherwise, her relationship with petitioner was all throughout consensual and by mutual choice. FIR and consequential proceedings thus be quashed, he urged.

Learned counsel for the petitioner relied upon a judgment dated 05/01/2024 in case Avdesh Kumar vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.7901/2023, rendered by Jaipur Bench of this Court. The learned Single Judge while relying upon the judgment in Tarun Viashnav vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.6323/2022, decided on 13/10/2022 (upheld by the Supreme Court) allowed the petition and quashed the FIR as well as the criminal proceedings initiated under the POSCO Act.

Learned counsel for the respondents-complainants and learned Public Prosecutor also concur with the fact of marriage. They jointly submit that in view of the marriage, they have no objection if the FIR in question is quashed.

As regard allegation of kidnapping, I am of the view that a reading of Section 366 of IPC would reflect that merely to take away a minor or a women from the custody of lawful guardian (in case of a minor), per-se does not make out an offence of kidnapping. For better appreciation, Section 366 IPC is reproduced herein below:-

“S. 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. ”

A plain reading of the section above conveys that its scope encompasses not only the act of kidnapping or abduction but also the use of threats, intimidation, or authority to compel a woman to act against her will. Intent is to apply it in those cases, where a woman’s freedom of choice is compromised. Section 366 of the IPC thus plays a critical role in protecting women from being forced into marriage or sexual exploitation. Intent is to uphold the dignity and autonomy of women by penalizing those who attempt to violate their freedom through kidnapping, abduction, or intimidation. However, mere abduction is not sufficient to attract the offence under Section 366 IPC. It is essential that the act of abduction must be with the intent to compel her to marry “against her will” or by use of force or by inducing or seducing her to an illicit relationship/intercourse. In the present case, relationship between the couple preceded the act of her being taken away and subsequently, their voluntarily marrying each other. No ingredients of 366 ibid are thus attracted.

In somewhat a similar circumstance, where a minor girl was abducted and instead of Section 366, Section 361 IPC was attracted (as ought to have been the case herein as well, girsl being a minor at the relevant time), the Apex Court, way back in 1964, in its rendition, titled as S. Vardarajan Vs. State of Madras (1965) 1 SCR 243, observed as under:-

“7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code :

"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."

It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an 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. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan ,She still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". …

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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.” (Emphasis supplied)

As regards allegation of Section 376 read with Section 5L/6 of the POCSO Act, once again it does not appear to be a case of any crime. Rather the self explanatory facts of the case clearly reflect that it was a consensual relationship of the petitioner with the prosecutrix, but unfortunately she being few months short of marriageable age, it resulted in the petitioner being in conflict of law and thus, turning him into an alleged criminal.

Be that as it may, currently the situation is such that neither the parents of the prosecutrix nor prosecutrix herself wish to press any charges against their son-in-law, i.e. the petitioner. On the other hand, the State is bearing the unnecessary burden of conducting trial where chances of conviction do not seem bright.

In the unlikely event of conviction, assuming the charges are proved, reference may also be had to extract of a judgment rendered by a coordinate Bench of this Court presided over by my learned brother Dinesh Mehta, J. in the case of Tarun Vaishnav Vs. State & Anr. (S.B. Criminal Misc. petition No.6323/2022, decided on 13.10.2022, which is as below:-

“17.Different High Courts have given different reasonings dealing with medical, psychological, social angles of the situation; analysing the statement of objects and reasons of the POCSO Act; considering practical realities including future of the newborn child involved.

18.This Court feels that it is a fit case to exercise its inherent powers under Section 482 of the Code for quashing the FIR to secure the ends of justice, because:-

(i) an adolescent girl of tender age (16 years) has fallen inlove with a boy of 22 years;

(ii) both being immature, apparently driven by momentary emotions have fallen prey to lust, surpassing social, moral and legal limits;

(iii) the complainant is the police and the girl or her family are neither aggrieved party nor complainant;

(iv) the girl has been consistent in her stand that she consented to the physical relationship. Not only in her statements under Section 161 and Section 164 of the Code but also before this Court, the girl unequivocally accepted that she had consented to the act;

(v) their fornication though may be without legal and moral sanction, has resulted in child birth;

(vi) parents of both – the girl and the boy having forgiven their respective children for their felony, intend to tie them in nuptial knot, when the prosecutrix attains marriageable age;

(vii) if the prosecution continues, the petitioner is sure to face conviction, as the girl is minor. The conviction will result in 10 years of incarceration which would bring more agony and misery to the girl and her newly born son, rather than securing justice;

(viii) and also because, the basic ingredient of retributive theory of punishment -”avenge for the person wronged” is completely absent.

Faced with such situation and upon appraisal of the overall circumstances, as an exceptional case, this Court is persuaded to allow the petition, as prayed. The impugned FIR No.0260/2022 registered at Police Station Devnagar, Jodhpur City (West) against the petitioner, is hereby, quashed not only on the basis of compromise, but also for the reasons mentioned hereinabove and what has transpired during the course of hearing.”

The facts of the present case are akin to what has been observed in para No.18 of the judgment ibid. Thus, in the larger interest of justice and so as to enable the parties to enjoy the matrimonial bliss and live peacefully and happily instead of ignonimity of further trial, the FIR in hand as well as the consequential proceedings emanating therefrom deserve to be quashed.

Consequently, the petition, as already held, was allowed. Resultantly, the impugned FIR No.0040/2020 dated 16/02/2020 lodged at Police Station Tibbi, District Hanumangarh and all consequential proceedings emanating therefrom are hereby quashed.

Pending application(s), if any, shall also stand disposed of.