V. K. CHATURVEDI, J. Irfan, Rukhsana Begum, Mastana and Hashim have filed the above case for quashing of the proceedings of Criminal Case No. 500 of 2001, State v. Irfan and others, under Sections 363, 366, IPC arising out of crime No. 267 of 2000. pending before the Chief Judicial Magistrate, Mau. 2. Heard Mr. M. A. Siddiqui for the applicants, Mr. R. P. Pandey, learned Counsel for the complainant and learned A. G. A. 3. The case relates to Kidnapping of Km. Neeta Gupta alias Neera Gupta alias Nagma (aged about 15 years according to the F. I. R.) charge-sheet has been filed which is Annexure-5 and the applicants have been summoned. 4. Opposite Party No. 2 Rama Shanker Gupta lodged a F. I. R. (Annexure-3) at police station Moradabad on 15-6-2000 under Sections 363, 366, IPC as crime No. 267 of 2000 against the applicants, with the allegations that Applicant No. 1 Irfan used to come to this house. In the night of 11-6-2002 his daughter Neera Gupta aged about 15 years, "bahla Fuslakar" has been taken away by Irfan, Rukhsana Begum, Mastana and Hashim. This was told to him by Awadhesh, Bhulai, Isai and Jagannath. Then he lodged the report on 15-6-2000 after four days. 5. After recording statement of the informant Rama Shanker Gupta, Jagannath, Bhulai and Awadhesh, the Investigating Officer submitted charge sheet against the applicants under Sections 363, 366, IPC. 6. It is contended by the Counsel for the applicants that Km. Neera Gupta is major and has married with Applicant No. 1 Irfan of her own volition and on 20-3-2001 she has given birth to a male child and both are happily living as husband and wife. It is next contended that parents and relatives of Neera Gupta are after them. 7. Sri R. P. Pandey learned Counsel for the complainant, contended that Km. Neera Gupta was minor at the time of the alleged incident as such the offence under Sections 363, 366, IPC is made out against the applicants. 8. In support of this application Km. Neera Gupta alias Neera Gupta alias Nagma, wife of Irfan has filed her affidavit. It is alleged in the affidavit that she and Applicant No. 1 Irfan loved each other. The affidavit goes on to state that Km. 8. In support of this application Km. Neera Gupta alias Neera Gupta alias Nagma, wife of Irfan has filed her affidavit. It is alleged in the affidavit that she and Applicant No. 1 Irfan loved each other. The affidavit goes on to state that Km. Neera Gupta was major aged about 20 years and after embracing Islam she married Applicant No. 1 Irfan on 19-6-2000. It has also been averred in the affidavit that she had also changed her name as Nagma. The marriage was performed by a Kaji in Bombay. Copy of the Nikahnama is filed as Annexure 1. It is also stated by her that she of her own free will without any coercion changed her religion. It has also been averred in the affidavit that Km. Neera Gupta who is major has voluntarily of her own free will entered into marriage with Applicant No. 1 and in view of this no offence under Section 363 or 366, IPC is spelt out against the applicants. 9. On 21-7-2001 this Court directed Neera Gupta and Irfan to present themselves before the C. J. M. , Mau and the C. J. M. was directed to get Neera Gupta medically examined by a board to ascertain her age and to record her statement under Section 164, Cr. P. C. The report of the Medical Board countersigned by the Chief Medical Officer, Mau dated 7-8-2001 is on record which shows the age of Neera Gupta as 18 years. In her statement recorded under Section 164, Cr. P. C. she has stated that she is major aged about 20 years and she has entered into marriage with applicant No. 1 Irfan our of her own free will and was residing with him as his wife. She has also stated that she has been blessed with a son and she wants to reside with her husband. She specifically stated that she was not induced or mislead in any manner by anyone. She has also stated that she herself insisted Irfan to go with her while Irfan was reluctant to take her without permission of the parents. She has also stated that she does not want to go with her fathers house because her father and Bahnoi would commit her and her husband murder as they have looted the house of her husband Irfan. She has also stated that she does not want to go with her fathers house because her father and Bahnoi would commit her and her husband murder as they have looted the house of her husband Irfan. She has also stated that in fact she has fallen in love with Irfan. She went with Irfan with her own free will. Copy of the statement recorded under Section 164, Cr. P. C. is also on the record. 10. On behalf of the complainant Rama Shanker Gupta, a counter affidavit has been filed and in the counter affidavit it is mentioned that Neera Gupta is a minor. It is no where stated in the counter affidavit that what is the correct date of birth of Neera Gupta. Even in the statement of the witnesses whose names are mentioned above and are on the record, nobody has stated the correct age of Km. Neera Gupta. The witnesses have further stated in their statement under Section 161, Cr. P. C. that they saw Neera Gupta with Irfan on a motor cycle. In the rejoinder affidavit, it has been specifically stated that she is major. 11. The contention of the learned Counsel for the applicants is that the victim was a consenting party accompanying Irfan to various places at Bombay. It was not a case of her being taken away from her lawful guardianship by the accused. In support of his contention, learned Counsel for the applicants has relied on the decision of the Apex Court in State of Karnataka v. Sureshbabu Puk Raj Porral, reported in 1995 (2) JIC 1572 (SC ). 12. It was not a case of her being taken away from her lawful guardianship by the accused. In support of his contention, learned Counsel for the applicants has relied on the decision of the Apex Court in State of Karnataka v. Sureshbabu Puk Raj Porral, reported in 1995 (2) JIC 1572 (SC ). 12. The elements of the offence of kidnapping as defined under Section 361 are as follows: (1) the person kidnapped must be minor or a person of unsound mind; (2) the age of the kidnapped person must be under 16 years in the case of a male or under 18 years in the case of a female; (3) the minor or person of unsound mind must have been in the keeping of a lawful guardian; (4) the kidnapping must be from the keeping of the lawful guarding of the minor or in the case of a person of unsound mind from the keeping of the lawful guardian of such person; (5) the offender must have taken away or enticed a minor or a person of unsound mind from the keeping of the lawful guardian; and (6) "such taking" or "enticing" must be without the consent of the lawful guardian. 13. Section 366 applies to cases where at the time of the abduction the woman had no intention of marriage or illicit intercourse but the intention of the abductor must be to compel her to afterwards marry any person against her will or force her to illicit intercourse. The essential ingredient of an offence under Section 366, IPC is that at the time of the committing of the offence, the accused intended or knew that it was likely that the abducted or kidnapped woman might or would be compelled to marry a person against her will or that she might or would be forced or seduced to illicit intercourse. 14. With this legal limitation, statement of the victim, medical report can be looked. The victim herself was responsible for taking accused Irfan to Bombay on the pretext of getting married there and she did not raise any alarm either in the village or at the railway station or at Bombay. She stayed there with him and married with him. At the time of medical examination, she was found to be 18 years of age. She stayed there with him and married with him. At the time of medical examination, she was found to be 18 years of age. In the counter affidavit, father of victim Neera Gupta though has given the age of the victim as 14 years but he has not filed any proof about her correct age. It is undisputed that there can be variation in the age on account of climatic or hereditary factor extending upto two years. She has stated before the Magistrate in her statement under Section 164 that her age is about 20 years and that she has been blessed with a male child. Under the circumstances, her age could also be 18 years. This is the age of discretion. 15. In State of Karnataka v. Sureshbabu Puk Raj Porral (supra) it has been ruled in paragraph 7 that "now coming to the offence of kidnapping punishable under Section 366, I. P. C. against her age is doubtful. That apart, P. W. 7s evidence shows that she went with the accused voluntarily. When the age is in doubt, then the question of taking her away from lawful guardianship does not arise. However, the second requirement that taking or enticing away a minor out of the keeping of the lawful guardian is an essential ingredient of the offence of kidnapping. In the instant case, we are not concerned with enticement. But what we have to find out is whether the part played by the accused amounts to taking out of the keeping of the lawful guardian. From the evidence of P. W. 7 it is clear that she was also anxious to go with the accused to see places. In such a case, it is difficult to hold that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature like inducement. " 16. The facts as indicated by the papers filed on record as well as perusal of the petition, counter affidavit & rejoinder affidavit and statement of Km. Neera Gupta recorded under Section 164, Cr. P. C. and medical report submitted by the medical board about age, are that Km. Neera Gupta induced applicant Irfan to go with her, applicant Irfan is a person who has married Km. Neera Gupta, that Km. Neera Gupta recorded under Section 164, Cr. P. C. and medical report submitted by the medical board about age, are that Km. Neera Gupta induced applicant Irfan to go with her, applicant Irfan is a person who has married Km. Neera Gupta, that Km. Neera Gupta embraced Islam and entered in nuptial bond and she thereafter assumed second name Nagma, that from the F. I. R. as well as from the allegations and counter allegations, it appears clearly to a case of elopement for marriage as the two were in love. That she had emphatically asserted that she was 20 years of age and the incident under Sections 363, 366, IPC had occurred on 11-6-2000, are clearly indicative of the fact that on the date she had crossed the age of 18 years. 17. The discussion clearly leads to an inference that on the date when she eloped with applicant Irfan, she was above 18 years of age that is a major. In arriving at this conclusion, this Court is also fortified by the opinion of the medical officer. The provisions of Section 361, IPC make age for kidnapping from lawful guardianship with regard to a female under 18 years of age. The First Information Report shows Km. Neera Gupta to be a minor whereas Court find that she was not a minor but major under 18 years and it is not a case of kidnapping or enticing away of any minor girl from lawful guardianship of parents but a clear case of elopement which culminated finally into her marriage with applicant Irfan after embracing Islam. 18. From the above circumstances, it is clear that if she is sent back to her father, she may be killed as she herself has apprehended in her statement. She has also been blessed with a male child and is living with her husband Irfan peacefully and happily. I do not see any justification in continuing the proceedings arising out of the F. I. R. in the instant case any further, as in my opinion, it is not likely to bear any fruits. It will be sheer wastage of public time and money on the one hand and permitting harassment to the parties on the other. 19. I do not see any justification in continuing the proceedings arising out of the F. I. R. in the instant case any further, as in my opinion, it is not likely to bear any fruits. It will be sheer wastage of public time and money on the one hand and permitting harassment to the parties on the other. 19. In the result, this application is allowed and entire proceedings emanating from the F. I. R. dated 15-6- 2000 related to case Crime No. 267/2000, under Section 363, 366, IPC, P. S. Moradabad, District Mau including case No. 500/2001, pending before Chief Judicial Magistrate, Mau are hereby quashed. Application allowed. .