Satvinder Singh vs The State and Another

Ajit Bharihoke, J.—Petitioner Satvinder Singh is seeking quashing of FIR No. 298/2010, P.S. Sunlight Colony, u/s 363 IPC registered on the complaint of the Respondent No. 2 Sukhdev Singh.

Briefly stated, Sukhdev Singh, in his complaint to the police station stated that he is a ''Jhathedar'' in Gurudwara Bala Sahib, Bhagwan Nagar, New Delhi. His daughter Tavleen Kaur aged about 17l/2 years had left the house on 14th August, 2010 at 8.30 hours without any intimation. He stated that he suspected one Happy S/o Karan Singh, R/o E-l, Compound Bala Sahib Gurudwara for kidnapping his daughter.

Learned Counsel for the Petitioner submits that the daughter of the complainant/Respondent No. 2 left her house of her own accord without any. inducement, lure or use of force on the part of the Petitioner or anyone else, therefore, no offence of kidnapping is made out against the Petitioner. He further submits that date of birth of Tavleen Kaur is 05th December, 1992 and she was born at Patiala. In support of this contention, he has placed on record today a Birth Certificate, purported to have been issued by Chief Registrar, Births & Deaths, Punjab.

Learned Counsel for the Respondent No. 2, on the other hand, submits that this is a clear case of kidnapping because Tavleen Kaur, on the relevant day i.e. 14th August, 2010 was a minor and she had been induced by the Petitioner to leave her house. Learned Counsel for the Respondent has also placed on record copy of the birth certificate purported to have been issued by Municipal Corporation of Delhi, wherein the date of birth of Tavleen Kaur is mentioned as 05th December, 1993.

On perusal of the birth certificate issued by Municipal Corporation of Delhi, it transpires that the birth of Tavleen Kaur was registered by the Respondent No. 2 Sukhdev Singh with MCD, Central Zone, Delhi on 21st October, 2010 i.e. after the registration of the case. This prima facie indicates that Respondent No. 2 has tried to create evidence in support of his FIR. Coming to the birth certificate filed by the Petitioner, it is a birth certificate issued by Chief Registrar, Births & Deaths, Punjab, which gives an impression that Tavleen Kaur was born on 05th December, 1992. This certificate was registered on the basis of information conveyed on 10th December, 1992. On perusal of the FIR which was registered on 14th August, 2010, it transpires that in the FIR itself, Sukhdev Singh, father of Tavleen Kaur had mentioned that age of her daughter was 17l/2 years as on date. This information given in the FIR is much closer to the date of birth mentioned in the birth certificate produced by the Petitioner. Therefore, I have no reason to suspect the genuineness of the birth certificate submitted by the Petitioner. Thus, it is obvious that on the date of offence, Tavleen Kaur was a minor being 171/2 old. Even if the Transfer certificate given by Satya Wati Sood Arya Sr. Section School for Girls, Nizamuddin East, New Delhi is taken into account, then also, Tavleen Kaur was 16 years 8 months old at the relevant time.

The Petitioner has been booked for the offence of kidnapping a female child from the custody of her lawful guardian, an offence punishable u/s 363 IPC. The offence of kidnapping from lawful guardianship is defined thus in first paragraph of Section 361 IPC:

"Section 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 rif 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.",

On reading of the above referred definition, it is evident that "taking or enticing away a minor out of the keeping of a lawful guardian" is an essential ingredient of the offence of kidnapping. Thus, in order to make out a case u/s 363 IPC, the prosecution is essentially required to show some overt act of enticing or luring on the part of the Petitioner or some evidence to show that he actually used force to take away the minor girl from the custody of her lawful guardian. In the matter of S. Varadarajan Vs. State of Madras, Supreme Court has held that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that under no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 IPC. In the aforesaid case, the minor girl who had attained the age of discretion and was on the verge of attaining majority, left the house of the relative of her father of her own accord without any act of enticement, inducement or use of force by the accused and on consideration of facts of said case, the Supreme Court held that it was not a case within the purview of definition u/s 361 IPC.

In the instant case also, the facts are similar. The minor Tavleen Kaur who had attained the age of discretion and was aged around 17l/2 years, as per her statement made in the court, left the house of her father of her own accord without any enticement or lure from the Petitioner nor any force was used to take her away from the custody of her father. From the above statement, it is evident that essential ingredient of offence of kidnapping as defined u/s 361 IPC is missing in this case. Therefore, there is no purpose in allowing the FIR to stand and be investigated.

In view of the discussion above, petition is allowed. FIR No. 298/2010, u/s 363 IPC, PS. ''Sunlight Colony and the proceedings arising out of the same are thus quashed.

Tavleen Kaur now has attained the age of majority. She is free to go wherever she wants.

Petition stands disposed of.