Arjun K.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942 Crl.MC.No.2770 OF 2020(E)** **CP NO.8/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KODUNGALLUR CRIME NO.884/2019 OF KAIPAMANGALAM POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED:** **ARJUN K.S., AGED 29 YEARS, S/O.SURESH BABU, KOOVAPARAMBIL HOUSE, MOOTHAKUNNAM P O 683 516, BY ADV. SRI.M.B.SOORI** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.**| |**2**|**SAHLA.P.S.,**| ||**AGED 18 YEARS, W/O.ARJUN K S,**| ||**KOOVAPARAMBIL HOUSE, MOOTHAKUNNAM-683 516.**| |**3**|**SHAMEENA,**| ||**W/O.SAGEER, PUTHIYAVEETIL HOUSE, KANNANKULAM,**| ||**EDATHIRUTHI VILLAGE, KAIPAMANGALAM,**| ||**THRISSUR, KERALA-680 681.**| ||**R2 BY ADV. FRANKLIN ARACKAL**| ||**R3 BY ADV. SRI.K.A.NOUSHAD**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 Crl.M.C.No.2770 of 2020 ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------------------** ## **Crl.M.C. No.2770 of 2020** ## **--------------------------------------------------------** ## **Dated this the 8[th] day of September, 2020** ## **O R D E R** This is a proceedings instituted under Section 482 of the Code of Criminal Procedure (the Code) seeking orders quashing Annexure B final report and all further proceedings in Crime No.884 of 2019 of Kaipamangalam Police Station. 2. Crime No.884 of 2019 was one registered under Section 57 of the Kerala Police Act at the instance of the third respondent, alleging that her daughter, the second respondent who is a minor, is missing. After investigation, Annexure B final report is filed in the case under Sections 363 and 366A of the Indian Penal Code (the IPC) alleging that on 20.12.2019, at about 11 pm, the petitioner who is the sole accused in the case took the second respondent out of the keeping of her lawful guardian, stayed with her in the house of his friend on that day and married her on the succeeding day. The case set out by the petitioner in the Crl.M.C. is that the materials on record do not make out the offences alleged. 3. Heard the learned counsel for the petitioner, learned 3 Crl.M.C.No.2770 of 2020 counsel for the second respondent as also the learned counsel for the third respondent. 4. The learned counsel for the petitioner pointed out that the petitioner was in love with the second respondent and as they decided to marry and live together, the second respondent came out of her house on 20.12.2019 on her own volition for the purpose of marrying the petitioner and they have married on the subsequent day at a Temple. It was also pointed out by the learned counsel that the marriage between the petitioner and the second respondent was later registered under the Special Marriage Act, 1954. It was further pointed out by the learned counsel that Annexure B final report has been filed by the police at the instance of the third respondent who does not like the relationship between the petitioner and the second respondent. The contention advanced by the learned counsel for the petitioner is that the materials on record do not make out either the offence punishable under Section 363 or Section 366A of the IPC. 5. The learned Public Prosecutor, on instructions, submitted that the petitioner and the second respondent are now residing as husband and wife after registering their marriage under the Special Marriage Act. 6. The learned counsel for the third respondent 4 Crl.M.C.No.2770 of 2020 submitted that the question whether the second respondent has gone with the petitioner on her own volition is irrelevant in a case of this nature as the second respondent was a minor as on 20.12.2019. 7. There is no dispute to the fact that the second respondent was a minor as on 20.12.2019 and that she became a major only on 21.12.2019. The essence of the allegations in Annexure B report is as follows: "പപ്രതത 1-ആആ സസാകതയയുടട മകൾ 17 വയസസആ 11 മസാസവയുആ 29 ദതവസവയുആ പപ്രസായമയുള സഹല എന ടപ്രൺകയുടതടയ 20.12.2019 തതീയ്യതത 11.00 മണതകക ആവലസാതതകസാരതയയുടട നതയമപ് മസായ രകസാകർതതൃതത്വതതൽ ഇരതകവവ ടതയസാരതയയുടട എടതതരയുതത കണ്ണനസാആകയുളതയുള വതീടതൽ നതനയുആ അപ്രഹരതചക ടതയസാനടന KL.42.Q.8620-ആആ നമ്പർ വമസാവടസാർസസകതളതൽ കയറത ആലയതലയുള കകൂടസകസാരനടന വതീടതവലകക ടകസാണയുവപ്രസായത അവതടട ഒരയുമതചക തസാമസതകയുകയയുആ തയുടർനക 21.12.2019 തതയ്യതത 10.00മണതകയുആ 10.25 മണതകയുആ മവദദ ആലയതലയുള പശതീശങ്കര നസാരസായണ വകപതതതൽ വചക തസാലത ചസാർതത വതവസാഹആ ടചയതതസായയുആ ടവളതവസായതടസളതതനസാൽ പപ്രതത വമൽ വകയുപസകൾ പപ്രകസാരആ കയുറആ ” . ടചയതതരതകയുനയു എനക It is seen that in the course of the investigation, the police recorded the statement of the second respondent under Section 164 of the Code. The relevant portion of the statement reads thus: " എനതകക ആർകയുആ എതതടര വകസ ആവശദമതലല. ഞസാൻ . അർജയുനയുമസായത ജതീവതകസാൻ ആപഗ്രഹതകയുനയു കകൂടയുതലസായത ഒനയുആ ” . പ്രനയസാനതലല Crl.M.C.No.2770 of 2020 5 8. As noted, one of the offences alleged against the petitioner is the offence of kidnapping. Section 361 of the IPC which defines ‘kidnapping from lawful guardianship’, reads thus: “361. **Kidnapping from lawful guardianship** .—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. 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.” It is evident from the extracted definition that in order to make out a case of kidnapping from the lawful guardianship as far as a minor female is concerned, it has to be shown that the accused has either taken or enticed the minor out of the keeping of her lawful guardian without the consent of her guardian. In other words, if a minor girl of sound mind goes on her own volition out of the keeping of her lawful guardian, the offence is not attracted. The materials on record including the statement given by the second respondent under 6 Crl.M.C.No.2770 of 2020 Section 164 of the Code would demonstrate that the second respondent left her house on 20.12.2019 on her own volition with a view to marry and live with the petitioner. In such a case, according to me, the offence of kidnapping from lawful guardianship punishable under Section 363 of the IPC is not attracted [See **S** . **Varadarajan v. State of Madras** , AIR 1965 SC 942]. 9. Section 366A of the IPC reads thus: “ **366A** . **Procuration of minor girl.** —Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine”. In order to make out a case under Section 366A of the IPC, it is necessary to establish that the accused has induced the minor girl to go from any place or to do any act with intention that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. Inducement on the part of the accused to make the minor to go from one place or to do any act with the requisite intention or knowledge, is an essential ingredient to constitute the offence punishable under Section 366A of the IPC. "Black's Law Dictionary" defines 'inducement' as ‘the act or process of enticing or persuading another person to take a certain course of action’. In a given case, where the minor girl has left her house in the Crl.M.C.No.2770 of 2020 7 company of the accused with a view to marry the accused and as she was not forced by the accused to have sexual intercourse with any person other than the accused, the offence under Section 366A of the IPC is not made out [See **Iqbal v. State of Kerala,** (2007) 12 SCC 724]. In the light of the discussions aforesaid, according to me, Annexure B final report in Crime No.884 of 2019 of Kaipamangalam Police Station is an abuse of the process of the court and same is liable to be quashed and I do so. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** YKB 8 Crl.M.C.No.2770 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 21.12.2019 OF KAIPAMANGALAM POLICE STATION.** **ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT DATED 03.01.2020.** **ANNEXURE C** **CERTIFIED COPY OF THE 164 STATEMENT OF THE 2ND RESPONDENT/VICTIM DATED 23.12.2019.** **ANNEXURE D ORIGINAL OF THE AFFIDAVIT DATED 09.06.2020 SWORN TO BY THE 2ND RESPONDENT.** **ANNEXURE E TRUE COPY OF THE CERTIFICATE OF MARRIAGE NO.10/2020 DATED 03.02.2020 ISSUED BY THE MARRIAGE OFFICER, PARAVUR, ERNAKULAM.** **RESPONDENT/S EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**