Gulam Abdul Nisar v. State of Kerala and Circle Inspector of Kumbala Police Station, Kasaragod and Addl. Maharunnissa P.M.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH DAY OF OCTOBER 2014/15TH ASWINA, 1936 Crl.MC.No. 890 of 2011 ( ) --------------------------(TO QUASH ALL FURTHER PROCEEDINGS PURSUANT TO ANNEXURE-A1 FINAL REPORT IN CRIME NO.605 OF 2010 OF KUMBALA POLICE STATION WHICH IS NOW ON THE FILES OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD AS C.C.NO.830/2010) PETITIONER/ACCUSED: ------------------------- GULAM ABDUL NISAR, AGED 33 YEARS, S/O.GULAM MOIDEEN, RESIDING AT FATHIMA MAHAL, PADAKODI HOUSE, KULUR, KULUR VILLAGE AND POST,, MANGALORE-13, D.K., KARNATAKA. BY ADVS.SRI.M.SASINDRAN SRI.JOHNY THOMAS RESPONDENTS/DEFACTO COMPLAINANT: --------------------------------------------- 1. STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. THE CIRCLE INSPECTOR OF POLICE, KUMBALA POLICE STATION, KUMBALA, KASARAGOD DISTRICT. ADDL. 3. MAHARUNNISSA.P.M., D/O.POONA MOHAMMED HAJI CHISTHIYA MANZIL, PERINGADI, MANGALPADY, UPPALA VILLAGE, KASARAGOD. (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 14.6.2011 IN CRL.M.A. NO.3316 OF 2011) R3 BY ADV. SRI.P.K.MUHAMMED R1 & R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 890 of 2011 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE AI: TRUE COPY OF THE FINAL REPORT IN CRIME NO.605 OF 2010 OF KUMBLA POLICE STATION. // TRUE COPY // TKS P.S. TO JUDGE **“C.R.”** ## **C.T.RAVIKUMAR, J.** -----------------------------Crl.M.C.No.890 of 2011 ------------------------------Dated 7[th] October, 2014 ## **ORDER** The petitioner is the accused in Crime No.605 of 2010 of Kumbala Police Station and he is accused of commission of offence punishable under Section 363 of the Indian Penal Code. The allegation against the petitioner was that he had taken away his own minor child aged 4 years on 24.1.2010 without the consent of its mother who is none other than his own wife. 2. The defacto complainant who is the estranged wife of the petitioner was impleaded as the 3[rd] respondent as per order dated 14.6.2011 in Crl.M.A.No.3316 of 2011 filed in the captioned Criminal Miscellaneous Case. I have heard the learned counsel for the petitioner, the learned counsel for the 3[rd] respondent and also the learned Public Prosecutor. 3. Evidently, owing to discordancy, the petitioner and his wife have parted with each other's company and are living separately. O.P.No.83 of 2010 was filed by the wife of the petitioner Crl.M.C.No.890/2011 2 before the Family Court, Kasaragod for getting custody of the minor child in question. The allegation is that the petitioner disobeyed the orders of the Family Court as also this Court by not producing the child before the Family Court. Thereupon, the Circle Inspector of Police, Kumbala taking into account the directions of this court to the Superintendent of Police, Kasaragod to ensure production of the child before the Family Court and consequential failure on the part of the petitioner herein to make available the child for ensuring its production before the Court, _suo motu_ registered Annexure-A1 F.I.R. against the petitioner alleging commission of an offence punishable under Section 363 of the Indian Penal Code (for short `IPC', only). The petitioner has come up with the captioned Crl.M.C. seeking quashment of Annexure-A1 F.I.R. and all further proceedings pursuant thereto pending before the Court of Chief Judicial Magistrate, Kasaragod in C.C.No.830 of 2010. 4. With respect to certain material facts there is no dispute at all. It is not disputed that the petitioner is the father of the minor child allegedly kidnapped by name Gulam Moideen Nooh and that the child was taken away from the custody of its mother who is none other than the wife of the petitioner. As already noticed hereinbefore, the couple are at loggerheads due to discordancy and are living separately. The wife Crl.M.C.No.890/2011 3 filed O.P.No.83 of 2010 before the Family Court for getting custody of the minor child. Admittedly, despite the orders the child was not produced before the Family Court. In such circumstances, the question is whether disobedience of an order to produce the child before the Court by the father of the child concerned, by itself would amount to kidnapping for the purpose of constituting an offence punishable under Section 363 IPC or whether it would only be a violation of the orders of the Court? In other words, the question to be considered is whether in view of the indisputable and undisputed facts obtained in the case the petitioner can be said to have committed an offence punishable under Section 363, IPC ? 5. The learned counsel for the petitioner contended that in the light of the indisputable fact that the petitioner is the natural guardian of the child by name Gulam Moideen Nooh it could not be said that he had kidnapped the child for the purpose of constituting an offence punishable under Section 363 IPC. It is only worthwhile to refer to Section 361, IPC and it 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 Crl.M.C.No.890/2011 4 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.” In the light of Section 36I, IPC it is evident that to constitute an offence under this section, the following conditions must exist:- - “(1) There must be taking or enticing of a minor or a person of unsound mind; - (2) Such minor must be under 16 years of age, if a male or under 18 years of age, if a female; - (3) Taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and - (4) Taking or enticing must be without the consent of such guardian.” Thus it can be seen that the gravamen and gravity of the offence of `kidnapping' lies in the action of `taking or enticing' of a minor child under the specified age out of the keeping of the lawful guardian, without the consent of such guardian. The word `takes' does not necessarily Crl.M.C.No.890/2011 5 connote `taking by force' or in other words, it does not confine only to the use of force, actual or constructive. It merely means `cause to go' or `to get into possession'. The word `entice' does involve the idea of inducement or allurement by giving hope or desire, in the other. The word `lawful' employed under the section must also be understood as distinguished from the term `legal' for the reason that a guardianship may be lawful without being a legal guardian. A lawful guardian is a guardian whose custody of a child is sanctioned by law whereas a legal guardian is the guardian appointed by law or whose appointment is in consonance with the general law of the land. In short, a legal guardian is necessarily a lawful guardian, but not necessarily vice versa. 6. I will proceed to consider the questions involved bearing in mind the aforesaid positions revealed from the provision. It cannot be disputed that being the father of the child concerned the petitioner is its natural guardian. When the natural guardian takes away the child how could the offence punishable under Section 363 IPC is attracted ? Relying on the decision of this Court in **Dr.Unnikrishnan and others** v. **Thenngumpalliyil Valsa Thomas** reported in **2006 KHC 1363** it is contended by the learned counsel for the petitioner that the ingredients constituting the offence under Section 361, IPC are not attracted in the Crl.M.C.No.890/2011 6 case on hand and therefore, the proceedings based on Annexure-AI are liable to be quashed as it would amount to abuse of process of court. In the decision in **Unnikrishnan's** case (supra) the allegation against the petitioner therein was one of commission of an offence punishable under Section 365 IPC. It is held by this Court that to constitute an offence under Section 365 IPC the minor child must be taken away from the possession of the lawful guardian and when the father of the child concerned takes away his child he being its natural guardian an offence under Section 365 IPC would not be attracted. A scanning of the provisions under Section 361 punishable under Section 363 IPC would undoubtedly show that to constitute an offence the minor must be taken away from the possession of the lawful guardian. When father takes away his child, being its natural guardian, it could not be said that the child was kidnapped though the child was taken away from the custody of the mother without the consent of the mother. In this case, it is very relevant to note that the petitioner who is the father of the minor child concerned took away the child before the filing of O.P.No.83 of 2010 by the 3[rd] respondent before the Family Court, Kasaragod and therefore, needless to say that before the issuance of orders by the Family Court and then by this Court, for production of the child before the Family Court. It may be true that the petitioner has committed violation of the Crl.M.C.No.890/2011 7 orders passed by the Family Court for producing the child before the Court. In the said circumstances, at the instance of the mother this Court as also the Family Court passed orders requiring the petitioner to produce the child before the Court. Violation of such orders definitely invites action in accordance with law. Section 7 of the Family Courts Act, 1984 deals with the jurisdiction of the Family Court. Section 18 of the Act deals with execution of decrees and orders passed by Family Court. Rule 50 of the Family Courts (Kerala) Rules, 1989 makes it clear that the provisions of the Code of Civil Procedure, 1908 and the provisions of the Code of Criminal Procedure, as the case may be, shall apply to the proceedings before the Family Court. It goes without saying, in the light of the various provisions under the Act and the Rules, as aforesaid, that the Family Court is empowered to execute its own orders, in accordance with law. However, I am at a lose to understand how in such circumstances the Circle Inspector of Police could _suo motu_ register an F.I.R. alleging commission of an offence under Section 363 IPC against the petitioner ? True that, cognizance was taken thereon. In the light of the provisions under Section 361 IPC, in the light of the decision in **Unnikrishnan's** case (supra) and in view of the factual position obtained in this case I have no doubt that the petitioner could not be accused of commission of an offence under Section 361 IPC punishable under Crl.M.C.No.890/2011 8 Section 363 IPC. In the said circumstances, allowing continuation of proceedings based on Annexure-A1 F.I.R. would tantamount to abuse of process of court. In the said circumstances, it is liable to be terminated by invoking the power under Section 482 Cr.P.C. In the light of the above discussion this Crl.M.C. is allowed. Annexure-A1 final report and all further proceedings pursuant thereto in C.C.No.830 of 2010 pending against the petitioner before the Court of Chief Judicial Magistrate, Kasaragod are hereby quashed. Sd/C.T.RAVIKUMAR Judge TKS